Dissenting. — This is a case where the state on the relation of its law officer, the district attorney, is endeavoring to enjoin the Secretary of State from ignoring the procedure laid down by the Constitution and laws- governing the exercise of the initiative process. In substance, the complainant charges that the certificates of the county clerks authenticating the initiative petitions in question herein are false in that the said clerks did not as they say they did compare any of the signatures to the petitions with the signatures of the electors on the registration cards on file in the respective county clerks’ offices, and that, in spite of such falsity, the Secretary of State, defendant, is about to act on the petitions thus falsely verified and send to the various county clerks the ballot title of the proposed initiative measure to be printed upon the ballots for the next general election.
In addition to the quotation from the fundamental law and the statutes in the opinion of Mr. Justice Harris, this excerpt from Section 1-a of Article IV of the Constitution respecting the initiative and referendum powers is here set down:
“The manner of exercising said powers shall be prescribed by general laws.”
It may be noted in passing, that the Constitution of Montana alluded to in State ex rel. v. Stewart, *50357 Mont. 397 (188 Pac. 904), cited by Mr. Justice Bean, does not contain this provision.
In pursuance of the authority vested in it by the Constitution, the legislative assembly of 1903 passed an act regulating the exercise of the initiative power. In that act there was required as authentication the certificate of the county clerk to the effect that he had compared the signatures on such a petition with the signatures of the electors appearing on the registration books and cards in his office, and this was supplemented by the requirement that all other names on the petition that were to be counted should be authenticated by the certificate of a notary public. This act was repealed in 1907 and another passed in its stead, making the affidavit of the circulator of any petition a sufficient authentication, thus relieving the county clerk and notaries public from any duty in respect thereto. The legislative assembly, however, by the act of February 17, 1917, Chapter 176, Laws of 1917, restored and re-enacted that requirement of certificates of county clerks and notaries public as now codified in Section 4098, Or. L.
It is said in Section 4099, Or. L., that “on a showing that any petition filed is not legally sufficient, the court may enjoin the Secretary of State and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and numbers of such measure.” The question arises: "What is a petition “not legally sufficient” in order to sustain an injunction? The requisites of the petition are laid down in Sections 4095-4098, inclusive. In view of the authority of the legislative department to prescribe the manner of exercising the power, it is competent for the law-making department of the government to compel not only certain details with reference to the petition itself, but also as part *504thereof the affidavit of the circulator and the certificates of the county clerk or notaries public. It is indeed true that the law has said, “the forms herein given are not mandatory, and if substantially followed in any petition, it shall be sufficient, disregarding clerical and merely technical error.” This refers, however, only to the forms themselves and not to the substance of the statute. “Each and every sheet of such petition containing signatures shall be verified on the face thereof.” “In addition to said affidavit, the county clerk of each county in which any such petition shall be signed shall compare the signatures of the electors signing the same with the signatures on the registration cards, * * shall carefully examine said petition and shall attach to the sheets of said petition containing such signatures, his certificate to the Secretary of State.” Moreover, with reference to such names as the county clerk has been unable to certify in the manner referred' to, the certificate of a notary public in the county in which the signer resides shall be “required.”
These provisions are mandatory and not merely directory. Else, why should it be commanded in the statute that the Secretary of State shall “consider and count only such signatures on such petitions as shall be so certified by said county clerk to be genuine?” And why is it said as to the other names that the certificate of. the notary public “shall be required”? It is plain that the Secretary of State shall have before him and shall count only names which are truly certified by the county clerk, or else authenticated by the certificate of a notary public based on his personal knowledge. The secretary has no right to act upon any other evidence. Shall it be said that a certificate false in fact is a compliance with the *505law, if it is fair upon its face? Is a false certificate as potent as a true one? Are such certificates merely formal or optional in face of the provision that the notaries’ certificates are required and that the Secretary of State shall count no names except those authenticated by the clerk or proved by the notaries? Shall courts assume to disregard the requirements of the statute and either compel or allow the Secretary of State to count names on untrue certificates? Shall we overlook the fallacious certificates, cause to be framed an issue as to the genuineness of any number of signatures, and work out an authentication of them on our own account which the Secretary of State must adopt in lieu of the verification required by law?
It is not by the mark to assert that “the complaint attacks the evidence of illegality, and not the illegality of the signatures.” The effort of this litigation is to keep the Secretary of State in the beaten track prescribed by the statute. The object of the legislation is to make it reasonably practicable to compel an observance of the law and to protect the general public from wholesale frauds such as were practiced in 1912 with respect to the referendum on the appropriation for the state university. The genuineness of the signatures is not the sole issue that can be raised. It is a fallacy to say that “a petition to be legally sufficient must be (1) in form substantially as prescribed by the statute, and (2) signed by the required number of voters.” This theory utterly ignores the authenticating certificates. If those can be regarded as merely formal and no more, we are perforce degraded to the condition of affairs where the general public was subject to the fraudulent practices of those who procure signatures for hire, which makes it impracticable to contest the initiation or *506referendum of any measure on account of the great number of names and the expense involved in searching out evidence to establish the fraud. Under the later statute, the petition may be attacked on any feature which is defective, and the challenger is not confined to the sole issue of whether or not the signatures are genuine.
The argument of the majority proceeds on the theory that we have before us a petition and verification fair on its face, and that the only thing to be investigated is whether or not the signers were legal voters. In State ex rel. v. Olcott, 62 Or. 277, 278 (125 Pac. 303), Mr. Justice McBride used this language :
“On behalf of defendant it is contended that, by the words ‘legally sufficient,’ as here used, it is meant that the petition shall be regular upon its face, and that, if a petition, regular upon its face, shall be presented, the court cannot go behind its apparent regularity to inquire into its genuineness. We cannot assent to this view. * * This would be giving a forced and unnatural construction of the law in favor of fraud. The legislature never contemplated such a vicious construction. We are of the opinion that by the term ‘legally sufficient’ the legislature meant to describe a valid petition, signed by legal voters, and complying substantially, not necessarily technically, with the requirements of the law.”
The law mandatorily requires certain types of authentication. Since these are demanded, and the Secretary of State is forbidden to count any names except those attested either by the county clerk’s certificate or that of notaries public, we are not at liberty to ignore those requirements. They are essentials going to make up the term “legally sufficient.” If the secretary may act on false certificates, he may proceed without any certificate whatever.
*507Much has been said in argument about the constitutional right of a legal voter to initiate measures or to invoke the referendum upon.others. This right, however, is governed and affected by all the provisions of the Constitution and the legislation enacted in pursuance thereof. The method of exercise prescribed by the statute is the measure of the power. It goes without saying that a contestant may assail the genuineness of the signatures, but that is not the only ground of attack; otherwise, all certificates whatsoever named in the statute may be ignored, and any contestant may be driven to the Herculean task of directly challenging thousands of names. This legislation was designed to suppress fraud and to protect the general public from the confusion brought about by the unbridled activity of an insignificant minority in the matter of promulgating new legislation.
The true issue in this case is whether or not the Secretary of State shall be permitted to base his action upon false certificates. Analogous to the evidence prescribed by the statute of frauds, the proof of a writing by subscribing witnesses only, the proof of usage or perjury by two witnesses, and the precept that proof of publication shall be by the printer or his foreman or his principal clerk, the law has prescribed certain requirements in the form of the certificates mentioned, which are the sine qua non upon which alone the Secretary of State may act in counting the names upon petitions. The state on the relation of its district attorney has the right to attack those certificates, which are integral parts of the petition, on any defect in them which can be shown. He can destroy the petition by destroying the prop, or verification, which sustains it. The averments of the complaint disclose that the certificates of the *508county clerk are untrue. No reliance upon such, certificates ought to be permitted. The people are not given the protection against fraud which the statute affords, unless those certificates are actually true. The issue in this case was not framed upon the ultimate verity of the signatures. The complaint challenged the equally important feature, so far as the public is concerned, that before the expense and confusion attendant upon the initiative process should be visited upon the people, the petition should be authenticated in the manner prescribed by the legislature.
The result of the majority opinion is, to disregard the value of the certificates, treating them as mere matter of form without other consequence, and to substitute for them a finding of the court from other evidence and impose it upon the Secretary of State in lieu of the certificate required. It is competent for the legislative power to prescribe the certificates as proper ingredients of the manner in which the initiative is to be exercised, and courts and officers should respect its mandate. For these reasons I dissent from the conclusion reached by the majority of my associates. The decree of the Circuit Court ought to be reversed.