*415Dissenting Opinion.
Morris, J.I cannot concur in the majority opinion, and the importance, as well as the novelty, of the questions involved, constrains me to state the reasons for dissenting.
The General Assembly of 1911 passed an act to submit to the electors of the State, at the general election of 1912, for ratification or rejection, a proposed “new Constitution,” set out in the body of the act. Acts 1911 p. 205. For the most part, the proposed “new Constitution” is a copy of the present one, the most prominent changes being in authorizing the legislature to enact a workman’s compensation law, in changing the number and apportionment of representatives in the legislature, in authorizing the Supreme Court to consist of eleven instead of five members, in requiring certain qualifications for voters, and in authorizing the legislature, on petition of twenty-five per cent of the voters, -to adopt laws providing for the initiative and referendum, and for the recall of officers, other than judges. The act provides that the proposed Constitution shall go into effect January 1, 1913, if ratified by the voters.
By an act concerning elections, approved March 6, 1889 (Acts 1889 p. 157, §6882 et seq. Burns 1908), it is provided, among other things, that the Governor and two electors of the state, by him appointed, shall constitute a state board of election commissioners, whose duty it shall be to prepare and distribute ballots at state elections. Section 62 of the aet, §6944 Burns 1908, requires-the board, “whenever any constitutional amendment, or other question, is required by law to be submitted to popular vote,” to cause a brief statement of the same to be printed on the state ballots, and the words “Yes” and “No”, under the same, so that the elector may indicate his approval or disapproval of the constitutional amendment or other question submitted. Section 25 of the act, §6907 Burns 1908, requires the Secretary of State, whenever such amendment or question *416is to be submitted, to certify tbe same to tbe clerks of tbe circuit courts of the State, not less than thirty days before the election.
The complaint, among other things, alleges that the legislature of 1911 was without power to propose for submission to the electors the instrument in controversy; that the latter is not, in fact, a new Constitution, but is the present one with a series of amendments, and its submission to the electors in 1912 conflicts with our Constitution, which requires amendments thereto to be considered by two sessions of the legislature before submission to popular vote; that the proposed Constitution, in authorizing, under certain conditions, the legislature to adopt laws for the initiative and referendum, conflicts with the Federal Constitution, which guarantees to every state a republican form of government, and is also void, because of its provisions relating to the apportionment and representation in the legislature.
In his complaint, plaintiff further avers that “he himself, and all the electors and other citizens of the state have the right to have il determined, decided, and adjudicated and published by the courts so as to know before the election * * * whether the said act is a constitutional exercise of the legislative power of the General Assembly, and whether, if adopted, said new constitution would be valid or void.” (Italics here and throughout opinion, mine.)
The court states, in its special finding of facts, among other things, that plaintiff is a citizen, elector and taxpayer of Washington township, Marion county, and owns property assessed at $24,840; that the assessed value of all the property in Indiana is $1,843,341,000; that unless enjoined defendants will perform the several acts, relating to this instrument, required of them by statute. It is further found that the expense of submission, “to be paid out of the treasury of the state and the several counties # * * will aggregate in all between $1,000 and $2,000.
The court stated its conclusions of law, in substance, as *417follows: The act of 1911, submitting the proposed new Constitution to the voters, is void (1) because of lack of power in the legislature to propose and submit the same; (2) because the instrument was proposed in violation of our present Constitution; (3) because the instrument is in violation of articles two, four and five of the ordinance adopted July 14, 1787, by the congress of the Confederacy of the United States of America, and violative of §4 of the act of congress of the United States of America, enabling the people of Indiana to form a state government, ’ and violative of the ordinance of the people of the Territory of Indiana, adopted June 29,. 1816, securing to the people of Indiana proportionate representation in the legislature; and (4) because the instrument is violative of the Virginia act, ceding to the United States the Northwest Territory, which provided that the states formed therefrom should be republican, when admitted- as members of the Federal union, and violative of article five of the ordinance of 1787, declaring that the states formed in such territory shall be republican in form, and violative of §4 of the act of congress of April 16, 1816, enabling the people of Indiana Territory to form a state government, providing that the same, when formed, should be republican, and violative of article 4, §4, of the Federal Constitution, which secures to each state a republican form of government. The fifth conclusion is that plaintiff is entitled to an injunction against Ellingham, Secretary of State, prohibiting him from certifying, before the election, to the several clerks, the proposed constitution; and the sixth is that Governor Marshall, and Bachelder and Boemler, constituting the board of election commissioners, should be enjoined from causing any statement of or concerning the proposed Constitution to be printed on any ballots to be used by the voters at the general election in November, 1912, or any election to be held in Indiana. Each defendant excepted to each conclusion of law. The *418defendants separately and severally moved in arrest of judgment, asserting, as grounds therefor, that the court had no jurisdiction of the subject-matter; that the court was without jurisdiction to enjoin the Governor of the State; that the court is without power to interfere with the executive department of the State in the -discharge of its functions; that “the courts are not given a prerogative to guard the people against themselves in the matter of adopting organic law;” that a judgment pursuant to the conclusions of law would involve a usurpation of power by the judicial department; that the court has no power to determine political questions or enjoin legislative action. The Governor separately filed a like motion.
Appellants insist here, among other things, that the court erred in each of its conclusions of law, and was without jurisdiction over the subject-matter of the action.
The question of jurisdiction is never a technical one, and where it appears that the lower court was devoid of power to determine the matters in issue, it is not only unnecessary, but improper, for this court to consider any other question presented. Smith v. Myers (1886), 109 Ind. 1, 9 N. E. 692, 58 Am. Rep. 375, and cases cited; State, ex rel., v. Thorson (1896), 9 S. Dak. 149, 68 N. W. 202, 33 L. R. A. 582.
Appellants contend, that as to the Governor, the court was without jurisdiction, because it has no power to restrain the head of the executive department of the government. Jurisdiction is the power to hear and determine a matter in controversy, and to carry into effect the judgment rendered. Smith v. Myers, supra; Robertson v. State, ex rel. (1887), 109 Ind. 79, 10 N. E. 582, 10 N. E. 643; People, ex rel., v. Morton (1898), 156 N. Y. 136, 50 N. E. 791, 66 Am. St. 547, 41 L. R. A. 23; 1 Blackstone’s Comm. 242; 3 Bouvier, Institutes 71; Cooley, Const. Dim. 575; Hopkins v. Commonwealth (1842), 3 Met. (Mass.) 460. In 1 Blackstone’s Comm. 242 it is said: “All jurisdiction implies superiority of power; authority to try would be vain *419and idle, without an authority to redress; and the sentence of a court would he contemptible unless that court had power to command the execution of it.”
Equity acts primarily in personam. An injunction decree can be enforced against one refusing to obey it, only by contempt proceedings. 16 Cyc 499. It is insisted by appellants that circuit courts may not imprison the Governor of the State for disobedience of an order relative to his official acts, and consequently there is no power to make the order.
Cases are rare where injunctive relief has been sought against a Governor, but the courts frequently have been called on to issue writs of mandate against chief executives in cases where it was claimed no executive discretion was involved. On this subject there is a conflict of authority, both in the adjudicated eases, and in textbook authorities. Hovey v. State, ex rel. (1891), 127 Ind. 588, 592, 27 N. E. 175, 11 L. R. A. 763, 22 Am. St. 663. In Cooley, Const. Lim. (7th ed.) 162, it is said: “It may be proper to say here, that the executive, in the proper discharge of his duties under the constitution, is as independent of the courts as he is of the legislature.” In Gray v. State, ex rel. (1880), 72 Ind. 567, it was held by this court that an action for mandamus would lie against the Governor and certain state officers, to compel the redemption of certain state bonds. This decision was on the ground that the duty enjoined on the Governor was in noway executive, but was purely ministerial.
In Hovey v. State, ex rel., supra, the Gray case was distinguished, and while it was not expressly overruled, it evidently would have been had such action been deemed necessary, as will appear from the authorities reviewed in the opinion and the court’s conclusion thereon. One of these authorities is People, ex rel., v. Governor (1874), 29 Mich. 320, 18 Am. Rep. 89 (opinion by Judge Cooley), from which the court on page 593, quoted the following: “The *420apportionment of power, authority and duty to the Governor, is either made by the people in the Constitution, or by the legislature in making laws under it; and the courts, when the apportionment has been made, would be presumptuous if they should assume to declare that a particular duty assigned to the Governor is not essentially executive, but is of such inferior grade and importance as properly to pertain to some inferior office, and consequently, for the purposes of their jurisdiction, the courts may treat it precisely as if an inferior officer had been required to perform it. To do this would be not only to question the wisdom of the constitution or law, but also to assert a right to make the Governor the passive instrument of the Judiciary in executing its mandates within the sphere of its own duties. ’ ’
After citing authorities that hold that the courts have jurisdiction to compel the chief executive of a state to perform an act which is purely ministerial in its nature, this court said on page 595: ‘ ‘ The cases above cited, as well as all others of the same import, seem to rest chiefly upon the dictum of Chief Justice Marshall, in the case of Marbury v. Madison [1803], 1 Cranch *137 [2 L. Ed. 60]. * * * "We are not justified in assuming that Chief Justice Marshall would have used the same, or similar language, had the action been brought against the President of the United States; nor do we think the case is in point in an action against the chief executive of a state. * * * The cases therefore, above cited, resting on the ease of Marbury v. Madison, in which it was held that the chief executive of a state may be compelled by mandamus, to perform mimsterial duties, rests upon authority which does not sustain the conclusion reached, and should not be followed.” In the same opinion, this court further said, on page 599, regarding the attempt of one department of our government to perform duties imposed on another: “Such attempt would be usurpation, more dangerous to free government than the evil sought to be corrected. Should we attempt to control *421the Governor, * * we would be taking one step in the direction of absorbing the functions of the executive department of the State.”
In Hartranft’s Appeal (1877), 85 Pa. St. 433, 27 Am. Rep., 667, cited with approval in Hovey v. State, ex rel., supra, the lower court issued a writ of attachment against Governor Hartranft, and some other state officers, to compel them to appear as witnesses before a grand jury that was investigating a matter growing out of riots which occurred in 1877. It was insisted by the governor that he was not liable to attachment for disobedience of the writ of subpoena. After setting out the provisions of the state Constitution (which are substantially the same as ours) the supreme court of Pennsylvania said on page 444: “Who then shall assume the power of the people and call this magistrate to an account for that which he has done in discharge of his constitutional duties? If he is not the judge of when and how these duties are to be performed, who is ? Where does the Court of Quarter Sessions, or any other court, get the power to call this man before it, and compel him to answer for the manner in which he has discharged his constitutional functions as executor of the laws and commander-in-chief of the militia of the Commonwealth? * ® * If the Court of Quarter Sessions of Allegheny county can shut him up in prison for refusing to appear before it, * * # why may it not commit him for a breach of the peace * * * resulting from a discharge of his duties as commander-in-ehief ? * * * In other words, if from such analogy, we once begin to shift the supreme executive power, from him upon whom the constitution has conferred it, to the judiciary, we may as well do the work thoroughly and constitute the courts the absolute guardians and directors of all governmental functions whatever. * * * We need not waste time in the attempt to prove that this proposition is not allowable; that the Governor cannot thus be placed under the guardianship and tutelage of the courts. *422To the people, under the methods prescribed by law, not to the courts is he answerable for his doings or misdoings.”
In People, ex rel., v. Morton, supra, where a writ of mandamus was sought against a board of which Governor Morton was a member, the court said: “But again, it is eon-tended that in this case the executive is one of 'a board of officers, and that the board may be compelled to act by mandamus. Conceding him to be one of a board of public officers, the duty is one that devolves upon him by virtue of his office. If the courts have not power over his person to enforce its decrees in the one case, they have not in the other. We have already referred to the discussion of Judge Cooley in the Sutherland case [People, ex rel., v. Governor, supra] with reference to the grade of duties imposed upon the executive, including ministerial acts, together with those involving executive judgment and discretion; and without repeating his argument here, it appears to us that his reasoning is unanswerable and his conclusions correct.”
Judge Cooley says in People, ex rel., v. Governor, supra: ‘‘ There is no very clear and palpable line of distinction between those duties of the governor, which are political, and those which are to be considered ministerial merely, and if we should undertake to draw one, and declare that in all cases falling on one side the line, the governor was subject to judicial process, and in all falling on the other he was independent of it, we should open the doors to an endless train of litigation. * * # However desirable a power in the judiciary to interfere in such cases might seem from the standpoint of interested parties, it is manifest that harmony of action between the executive and judicial departments would be directly threatened, and that the exercise of such power could only be justified on most imperative reasons.”
In Jonesboro, etc., Turnpike Co. v. Brown (1875), 8 Baxt. (Tenn.) 490, 35 Am. Rep. 713, the supreme court of Tennessee said: “The Governor holds but one office, that is the office of chief executive. Any duty Avhich he performs un*423der authority of law is an executive duty, otherwise we would have him. acting in separate and distinct capacities. In some respects he would be the chief executive, an independent department of the government; as to other duties he would be a mere ministerial officer, subject to the mandate of any judge of the State, and we must assume also that the judge would have the power to imprison the Governor if he refused to obey his order, for if the court has this jurisdiction the power to enforce the judgment must follow.”
In Frost v. Thomas (1899), 26 Colo. 222, 56 Pac. 899, 77 Am. St. 259, an action was brought to restrain the governor from appointing officers for a newly-created county, under an alleged unconstitutional act. - In its opinion the supreme court of Colorado said: “But when the governor, in pursuance of his executive authority, recognizes an act as legal, and is proceeding to execute its provisions, the courts cannot directly interfere with the discharge of his duties under it, merely because it is alleged that such act is unconstitutional. * * * And if the judicial department of the state should attempt, in a proceeding of this character, to compel the chief executive to refrain from the performance of his duties, under the act creating the new county, it would be an usurpation of authority * * *. ’ ’
In State v. Governor (1856), 25 N. J. L. 331, 351, in a mandamus action against the governor, the supreme court of that state said: “All executive duty is required to be executed by a higher atiihority than the order of this court, viz, by the mandate of the constitution. The absence of discretionary power cannot change the character of the act, or warrant the interposition of the judiciary. * * * While it is the acknowledged duty of courts of justice to exert all their appropriate powers for the redress of private wrongs, it is no less a duty sedulously to guard against any encroachment upon the right, or usurpation of the powers, of the coordinate departments of government. In the delicate and complicated machinery of our republican system, it is of the *424utmost importance that each department of the government should confine itself strictly within the limits prescribed by the constitution.” In both the New Jersey and Colorado eases, the proceedings were commenced in the supreme court.
In Mississippi v. Johnson (1866), 4 Wall. 475, 18 L. Ed. 437, a bill ivas sought to be filed in the Supreme Court of the United States by the State of Mississippi against Andrew Johnson, President, to enjoin him from enforcing certain alleged unconstitutional acts of congress. In denying the injunction, the court, by Chief Justice Chase, said: “The single point which requires consideration is this: Can the President be restrained by injunction from carrying into effect an. act of Congress alleged to be unconstitutional? # * * Tlie duty thus imposed * * * is purely exectitive and political. An attempt on the part of the judicial department * * * to enforce the performance of such duties' by the President might be justly characterized, in the language of Chief Justice Marshall, as ‘an absurd and excessive extravagance.’ * * * It will hardly be contended that Congress can interpose, in any ease, to restrain the enactment of an unconstitutional law; and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished, in principle, from the right to such interposition against the execution of such a law by the President? * * * Suppose the bill filed and the injunction prayed for allowed. If the President refused obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that ease could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by *425injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public wonder of an attempt by this court to arrest proceedings in that court? These questions answer themselves.”
Under our laws, writs of injunction and mandate issue only' from circuit and superior courts, the Supreme and Appellate Courts not having such power, except in aid of their own jurisdiction. There are more than sixty circuit and more than a score of superior court judges, in this State. The Governor is a member of numerous boards, the other members of which reside in various counties. Any circuit or superior court of the State might acquire jurisdiction of the person of the Governor in a suit against the members of such boards. Indeed, had any member of the board of election commissioners resided in Yanderburgh county, this cause might have been instituted there.
Circuit court judges may err. Indeed the power to determine a cause involves the power to decide it erroneously. The circuit court of Yanderburgh county might order the Governor by mandate (assuming the power to make and enforce such orders) to do a particular thing, and that of Lake county might enjoin him from doing a precisely similar act, and if he accept the construction of the law adopted by the Yanderburgh court, and obey it, he must pay the penalty of such obedience by removing his official residence to the Lake county jail. It might be possible, by various mandamus and injunction suits, to keep the Governor in jail during his entire term of office, because he obeyed the law as construed by various circuit courts in writs of mandate, provided he were not, in the meantime, impeached -for such obedience; and it might turn out, after all, that the injunctions he disobeyed were erroneously issued. Surely it was never contemplated by the builders of the government of the sovereign State of Indiana that any such spectacle of anarchy should be exhibited for public bewilderment. And if it be *426conceded that the court is without power to enforce its order of injunction against the Governor, the case against him ends, for, as said by Blackstone, the order of a court would be contemptible if there be no power of enforcement.
It is suggested that in performing a duty under the election laws, the Governor is merely acting as a member of the election board, and is not performing an executive duty-devolving on him as governor. This idea is illusory. Mississippi v. Johnson, supra; Georgia v. Stanton (1867), 6 Wall. 50, 18 L. Ed. 721; 2 High, Injunctions (4th ed.) §1323. The Constitution prohibits the Governor from holding any other office. He can perform no official duty except it be enjoined oh him as the Governor. The plaintiff in his complaint recognizes this, because he says: “Thomas R. Marshall, because he is Governor of Indiana,” is a member of the board.
The overwhelming weight of American authority is against the recognition of any distinction between ministerial and executive acts of a governor in such cases as this. In 2 Spelling, Extra. Relief §1206, it is said: “the doctrine denying the right of interference even with respect to duties usually considered as ministerial is supported by the clear weight of authority.” High, Extra. Legal Rem. §120; Merrill, Mandamus §97. But, in no event, can it justly be said that the Governor is acting in a ministerial capacity in refusing to enforce a statute because of its alleged unconstitutionality. Ministerial officers may not contest the constitutionality of a statute as a defense in proceedings against them for disobeying its mandates, though they may do so in proceedings to enforce the performance of a statute. 8 Cyc. 789; Hall v. People (1882), 90 N. Y. 498; Newman v. People (1896), 23 Colo. 300, 47 Pac. 278; County Board, etc., v. Kenan (1893), 112 N. C. 566, 17 S. E. 485; State v. Board, etc. (1893), 56 N. J. L. 258, 28 Atl. 311.
The presumption is that a statute is constitutional. This presumption is recognized by the courts, is binding on the *427executive, and surely binds ministerial officers. As said by tbe supreme court of North Carolina in County Board, etc., v. Kenan, supra: “If every subordinate officer in the machinery of'the state government is to assume an act of the legislature to be in violation of the constitution and refuse to act under it, it might greatly obstruct its operation and lead to most mischievous consequences. ’ ’
Our courts of last resort, in considering the question of the constitutionality of a statute, “exercise the gravest duty of a judge, ’ ’ and such duty will not be exercised in any doubtful ease, nor then, unless necessary, and on the application of one interested. 8 Cyc. 787.
What is a ministerial act ? This court has often defined it as one which a person performs in a given state of facts, in a prescribed manner, in obedience to- thé mandate of legal authority, without regard to, or the exercise of his oiun judgment upon the propriety of the act being done. Flournoy v. City of Jeffersonville (1861), 17 Ind. 169, 79 Am. Dec. 468; Galey v. Board, etc. (1910), 174 Ind. 181, 91 N. E. 593.
The plaintiff in this case sues the Governor because he has decided to execute a law relating to submitting a certain question to the voters. Appellee claims it unnecessary to submit the question—the proposed new Constitution—because, even if ratified, it will be void. Had the Governor decided the proposed instrument will' be void if ratified, and had he further decided that because thereof it was not necessary to execute the law of 1889, this suit might not have been brought by appellee. But no one will contend that the Governor could be excused for violating the act of 1889, requiring him to submit the question, unless he had previously decided, in the faithfuL exercise of his judgment and discretion, that if ratified the proposed Constitution would be invalid.
In Carr v. State (1911), 175 Ind. 241, 93 N. E. 1071, 32 L. R. A. (N. S.) 1190, this court said: ‘.‘The power given to courts to overthrow an act of the legislature is the highest *428and most solemn function with, which they are vested. ’ ’ This rule is universally recognized. Can it be said that a governor in deciding to disregard a statute is vested with a lower or less solemn function? If not, can it, with any pretense of reason, be said that in such case the act is ministerial, because it involves no exercise of judgment?
Never has it been claimed that the law is an exact science. Is there concealed somewhere in the universe a device which automatically registers with mathematical precision the correct answers to constitutional questions? If there is, and if the governor must be deemed, in performing his duties, to have availed himself of the use thereof, it seems unfortunate that the courts might not discover the device. That the determination of such questions involves the exercise of the highest judgment and discretion is shown by this court’s opinions where former decisions have been overruled, and, even in the same case.
In Smith v. Board, etc. (1909), 89 N. E. (Ind.) 867—a case of interest to nearly all the taxpayers and citizens of Indiana—it was held, without dissent, that many sections of the act concerning highways were unconstitutional and void. The opinion was filed November 18, 1909. A petition for rehearing was filed and granted, and it was finally held, in an opinion filed January 25, 1910, that said sections in controversy were valid and constitutional. Smith v. Board, etc. (1910), 173 Ind. 364, 90 N. E. 881. Had the Governor, instead of this court, in November, 1909, decided these sections unconstitutional and refused to enforce them, can it be said justly that such action would have been merely ministerial ?
While the right, by mandate, to order the Governor to perform purely ministerial, duties has been recognized in some early eases by this court, it was held later in Hovey v. State, ex rel. (1891), 127 Ind. 588, 596, 27 N. E. 175, 11 L. R. A. 763, 22 Am. St. 663, that the cases on which such authority rested “should not be followed,” and this holding *429is in consonance with the weight- of authority. No state court has ever held that a governor may be enjoined from executing a statute because of its alleged unconstitutionality. The Supreme Court of the United States has held that the President could not be enjoined. Mississippi v. Johnson, supra.
Some cases have been cited showing, injunctions granted by Federal courts against state executive officers in relation to the enforcement of acts of state legislatures, void by reason of conflict with the Federal Constitution. These cases are not in point here. The distinction was pointed out in Bates v. Taylor (1889), 87 Term. 319, 11 S. W. 266, 3 L. R. A. 316, in the following language: “Now, the most that can be said of these cases is that they show the jurisdiction of the Federal courts to restrain the Governor of a state from doing a wrongful act to the' injury of individual rights. It is not even intimated in any one of them that the State Courts have any such jurisdiction. There is a wide difference between the relation of the Federal judiciary and the State judiciary to the Governor of the State, and because of that difference the Federal decisions referred to are not at all in point in this case. A State’s judiciary sustains the same relations to its Governor that the Federal judiciary does to the President of the United States, and as a State court, by reason of that relation, has no jurisdiction to coerce or restrain the Governor witbi respect to his official duties, so the Federal courts, for the same reason, have no power to interfere with the official actions of the President. ’ ’
The doctrine of recognizing a power in the courts to enjoin a governor from executing the acts of a coordinate department of the government would involve a theory of tutelage and guardianship of the executive, by the judiciary, as novel as it would be intolerable. The inevitable result of such rule would be the absorption of all governmental power by the judicial department. Legislatures might just as well be enjoined in the first instance from enacting laws, for as *430said by tbe Supreme Court of the United States, there is no difference in principle; and forms may always be disregarded. The expense of publishing the proposed Constitution in the acts of 1911 might have been saved, by enjoining the legislature from submitting it to the people, and no different principle would have been involved from the one here. Mississippi v. Johnson, supra.
The analysis of government into three powers is as old as Aristotle, but to Montesquieu must be given the credit of developing the necessity of a separate department for the exercise of each of the three powers, to the end that civil liberty may be secured. In the formation of our American States, this division of power, except as expressly qualified, was made a fundamental principle. Mauran v. Smith (1865), 8 R. I. 192, 5 Am. Rep. 564.
Daniel Webster said: “A separation of departments, so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our constitutions, and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries. ” 4 Webster’s Works 122.
The history of the decline and fall of republics, from the Grecian democracies to the time of the adoption of our American Constitutions, is a story of usurpation of power, growing from slight encroachments, increasing gradually, sometimes by imperceptible advances, but each infringement furnishing an excuse for another trespass, until the governmental structure either fell or became the citadel of arbitrary power.
A court of equity regards the substance, and not the form of an act. This judgment, stripped of its forms, stands revealed as the edict of the Marion Circuit Court, addressed to the electors of Indiana, and forbidding them to incorporate into their organic law the changes proposed. Such in form is not the order, but by enjoining the Governor and oilier officers from furnishing the voters with a certain *431kind of ballot—their only means of acting—the substantial end is reached of enjoining the electors from voting on a proposed constitutional change.
Our American constitutions were erected by architects of consummate skill. Their foundations were supposed to be indestructible. Warned by the history of the Grecian and Italian republics, our fathers erected what they supposed were insurmountable barriers between the different departments of government. There are found in all the constitutions similar provisions in this respect; that of Indiana being as follows: “No person charged with official duties under one of these departments, shall exercise any of the functions of another.” Constitution,-Art. 3.
Our type of Constitution has been copied by nearly all the governments of the western hemisphere, has served as the model for modern European republics; and at this time, just when the people of the world’s most densely populated empire are seeking relief from usurped power by adopting our form of charter, ordained “to the end that justice be established, public order be maintained and liberty perpetuated, ’ ’ it is indeed unfortunate if the Supreme Court o.f Indiana should adopt a rule, which only a few months ago the Supreme Court of the United States declared, without dissent, involves a power in the judiciary to build a new government on the ruins of the present one. Pacific States, etc., Tel. Co. v. Oregon (1912), 223 U. S. 118, 32 Sup. Ct. 224, 56 L. Ed. 377. The lower court erred in holding that the Governor may be enjoined.
Appellants contend that the court erred in concluding as a matter of law that the provision of the proposed Constitution, empowering the General Assembly to legislate in reference to the initiative and referendum, is in conflict with the provisions of the Federal Constitution, which guarantees to each state a republican form of government; that the question is a legislative or political one. over which the courts have no jurisdiction.
*432When this cause was heard in the circuit court there was pending in the Supreme Court of the United States the case of Pacific States, etc., Tel. Co. v. Oregon, supra, which involved this identical question. The appellee here, and his learned counsel, Hon. Addison C. Harris, as amici curiae, by leave of court, filed a brief in the Oregon cause, contending there as in the Marion Circuit Court, for the rule declared by the latter.
The Oregon case was decided in February, 1812. The opinion was rendered by Chief Justice White, all the justices concurring. Tn the course of the opinion it was said on page 133: “We premise by saying that while the controversy which this record presents is of much importance, it is not novel. It is important, since it calls upon us to decide whether it is the duty of the courts or the province o£ Congress to determine when a State has ceased to be republican in form and to enforce the guaranty of the Constitution on that subject. It is not novel, as that question has long since been determined by this court conformably to the practice of the Government from the beginning to be. political in character, and therefore not cognizable by the judicial power, but solely committed by the Constitution to the judgment of Congress. * * * Before immediately considering the text of §4 of Article IV, in order to uncover and give emphasis to the anomalous and destructive effects upon both the state and national governments which the adoption of the proposition implies, as illustrated by what we have just said, let us briefly fix the inconceivable expansion of the judicial power and the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction to the doctrine which underlies and would be necessarily involved in sustaining the propositions contended for. ® * * And as a consequence of the existence of such judicial authority a power in the judiciary must be implied, unless it be that anarchy is to ensue, to bwild by judicial action upon the ruins of *433the previously established government a new one, a right which by its very terms also implies the power to control the legislative department of the Government of the United States in the recognition of such new government and the admission of representatives therefrom, as well as to strip the executive department of that government of its otherwise lawful and discretionary authority. Do the provisions of §4 Art. IY bring about these strange, far-reaching, and injurious results ? That is to say, do the provisions of that Article obliterate the division between judicial authority and legislative power upon which the Constitution rests? In other words, do they authorize the judiciary to substitute its judgment as to a matter purely political for the judgment of Congress on a subject committed to it and thus overthrow the Constitution upon the ground that thereby the guaranty to the States of a government republican in form may be secured, a conception which after all rests upon the assumption that the States are to be guaranteed a government republican in form by destroying the very existence of a government republican in form in the nation. "We shall not stop to consider the text to point out how absolutely barren it is of support for the contentions sought to be based upon it, since the repugnancy of those contentions to the letter and spirit of that text is so conclusively established by prior decisions of this court as to cause the matter to be absolutely foreclosed. In view of the importance of the subject, the apparent misapprehension on one side and seeming misconception on the other suggested by the argument as to the full significance of the previous doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than we otherwise V'ould the issues and the doctrine expounded in the leading and absolutely controlling case—Luther v. Borden [1849], 7 How. 1 [12 L. Ed. 581]. * * # It is indeed a singular misconception of the nature and character of our constitutional system of gov*434ernment to suggest that the settled distinction which the doctrine just stated points out between judicial authority over justiciable controversies' and legislative power as to purely political questions tends to destroy the duty oí the judiciary in proper cases to enforce the Constitution'. # * * As the issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not therefore within the reach of judicial power, it follows that the ease presented is not within our jurisdiction.”
It would seem that nothing need be added here to what was said by the Supreme Court of the United States, were it not for the fact that in this case the further question is presented of a conflict with the ordinance of 1787, and the Virginia act of 1783.
In 1783, when the Northwest Territory was a wilderness, it was ceded by Virginia to the United States. In the act of cession it was provided that the territory ceded should be formed into distinct republican states. The ordinance of 1787 provides, among other things, that the inhabitants of the territory shall ever be entitled to a proportionate representation of the people in the legislature, and that the states formed in the territory shall be republican. The right of trial by jury (of twelve) was secured, and it was guaranteed that the title of the Indians to their lands should not be taken from them except by their consent. Article four provided that the territory and the states that may be formed therein “shall ever remain a part of this Confederacy of the United States of America, subject to the Articles of Confederation.”
It is appellee’s theory, adopted by the trial court, that the provisions of the above two instruments are binding here, and that the initiative and referendum clause, and other matters in the proposed Constitution, are in conflict with the provisions of each of the above instruments, and *435that the court has jurisdiction to declare the proposed Constitution void, for such reasons.
That the people of any of the sovereign states carved out of the Northwest Territory are hereft of-power, for instance, to reduce the number of jurors composing a jury to less than twelve, regardless of amendments to State or Federal Constitutions, because of the provisions' of the ordinance of 1787, would be but one of the many remarkable situations that would result from the position taken by appellee, and the lower court. On such theory, we are confronted with a situation, not only as was said in- Pacific States, etc., Tel. Co. v. Oregon, supra, as between anarchy or building “by judicial action upon the ruins of the previously established government, a new one, ’ ’ but even such new one established by a judicial oligarchy must ever.be fettered by the provisions of the ordinance of 1787. It .would appear that the statement of the proposition suggests the proper answer.
The question involved on this branch of the case is purely political, aud one over which the courts have no jurisdiction, and the Marion Circuit Court erred in holding otherwise.
Appellants next claim that the facts found do not warrant injunctive relief, because no substantial, positive injury is made to appear; because the cost to plaintiff of submitting the proposed Constitution is "too trifling for consideration ; that neither in person nor in property can appellee be affected, unless the instrument be ratified next November by the voters, which renders the question a speculative one merely; and because courts have no jurisdiction to enjoin the people from making constitutions or from voting. That a taxpayer may, by a suit in equity, enjoin the unlawful levy of a municipal tax, or enjoin the unlawful expenditure of public funds, whether he owns much or little property, is too well settled to require the citation of authorities. But this action cannot be fairly termed a taxpayer’s suit. That a paragraph of complaint must pursue a single definite theory is settled. Our code (§343 Burns 1908, §338 *436R. S. 1881) requires that each cause of action shall be distinctly stated in separate paragraphs, where the complaint contains more than one cause. While this complaint alleges that appellee is a taxpayer, and that the action is brought for all the electors and taxpayers of the State, it cannot be believed that appellee and his eminent counsel—both of whom have devoted their lives to the practice of law in Indiana, and are thoroughly familiar with our code—intended to state in a single paragraph of complaint two or more causes of action. And while no demurrer nor motion to separate was filed in the court below, it is proper here to consider the theory of the complaint, which, in case of doubt, is determined by the general scope and character of the pleading. The theory most prominent in the complaint is that of a cause of action brought by a citizen and elector, and the references therein to the plaintiff as a taxpayer should be either disregarded as surplusage, or regarded as subsidiary averments in a complaint treated as filed by the plaintiff in his capacity as citizen and elector. That appellee himself attaches but little importance to the taxpayer feature of his complaint is evidenced by the scant attention given to it in his brief.
Even if the complaint be deemed a suit in equity by a taxpayer, the facts found do not entitle appellee to any substantial relief. Expenses of holding state elections are borne in part by the treasuries of the several counties, and in part by that of the State. The court finds that the total cost to be occasioned will aggregate from $1,000 to $2,000, and that such expense will be borne by the state and the several countj'- treasuries. It fails to find any specific amount to be borne by the treasury of the State, or that of Marion county—the only two in which plaintiff is interested. If all the expense were to be borne by the state treasury—which cannot occur—plaintiff’s share of the $1,000 would be about three cents—an amount so trifling as to invoke the doctrine of de minibus non curat lex. *4371 Pomeroy, Eq. Rem. §331; 1 High, Injunctions §22; State, ex rel., v. Thorson (1896), 9 S. Dak. 149, 68 N. W. 202, 3 L. R. A. 582.
Only one case .similar to this one has been called to our attention. But if appellee’s contention, that the proposed Constitution is not a new one, but merely a series of proposed amendments, be correct, then the case of State, ex rel., v. Thorson, supra, is in point on every proposition involved in this branch of the discussion. In that case a suit was filed in the supreme court of South Dakota to enjoin the secretary of state from certifying to county officers a proposed constitutional amendment. The court said: “The relator is an elector and taxpayer. Defendant intends to, and will, unless restrained by injunction or other legal process, certify the question as a proposed constitutional amendment. The relator contends that the passage of the resolution, and the submission of the question embraced therein, are steps in an attempt to amend the state constitution; that the methods prescribed for its amendment have not been complied with; therefore defendant has no authority to certify the same. * * * He claims * * * that the constitution will not be changed, whatever reply may be returned. * * * It is a familiar principle that substantial and positive injury must always be made to appear to the satisfaction of a court before it will grant an injunction, and acts which, however irregular and unauthorized, can have no injurious results, constitute no ground for relief. 1 High, Injunction §9. The party seeking an injunction must show, not only a clear legal right, but a well grounded apprehension of immediate injury. An injunction will not be granted where the injury is doubtful, or the violation of complainant's rights is merely speculative. Injury material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable result of the action to be restrained. * s;:: * This court has no power to examine an act of the legislature generally *438and declare it unconstitutional. The limit of our authority-in this respect is to disregard, as in violation of the constitution, any act or part of an act which stands in the way of the legal' rights of the suitor before us. „ * * * It has not been shown, nor can it be imagined, in what manner the relator will be injured by the contemplated action of defendant. If the legislature has proceeded properly, and its proposed amendment shall be ratified by the people, the relator will have no legal cause of complaint, because, as a good citizen of the state, he will be bound to cheerfully accept the lawfully expressed will of a majority of its sovereign electors. If, on the other hand, the action of the legislature was such as to render any answer to the question inoperative, the constitution will not be modified, and no one will be affected. Any additional burden which might result to relator, as a taxpayer, by reason of submitting this question at a general election is too trifling, fanciful, and speculative for serious consideration. * * * There is another view, which involves the structure of the state government and the relation of its several departments. Should it be conceded that the relator has such an interest in the matter as entitles him to be heard, or that the action involves a question of such public concern as would warrant an attempt by the attorney-general to obtain an injunction, could this court issue it? No precedent for such an action has been presented by counsel or discovered by the court. In discussing this phase of the case it will be assumed an amendment of the constitution was intended requiring the concurrent action of the legislature and electors. The former has acted. Its action will be communicated to the latter by means of defendant’s certificate. Until the latter shall have expressed their approval, the proceeding is incomplete, and the constitution will remain unchanged. The proposed amendment is on its way to the electors. Can this court, at this time, impede its progress? Can it be called upon to anticipate conditions which may never exist? *439Can it interpose its process between the legislature and electors, who are alone clothed with power to modify the fundamental law, before both have acted, and while the matter is pending and incomplete ? The powers of the state government are divided into three distinct departments—the legislative, executive and judicial. The powers and duties of each are prescribed by the constitution. Const. Art. 2. Power to amend the constitution belongs exclusively to the legislature and electors. It is legislation of the most important character. This court has power to determine what such legislation is, what the constitution contains, but not what it should contain. It has power to determine what statutory laws exist, and whether or not they conflict with the constitution; but it cannot say what laws shall or shall not be enacted. It has the power—and it is its duty, whenever the question arises in the usual course of litigation, wherein the substantial rights of any actual litigant are involved, to decide whether any statute has been legally enacted, or whether any change in the constitution has been legally effected, but it will hardly be contended that it can interpose in any case to restrain the enactment of an unconstitutional law. Mississippi v. Johnson [1866], 4 Wall. [475], 500 [18 L. Ed. 437], If the legislature cannot be enjoined when engaged in the enactment of unconstitutional statutes, it and the electors cannot be enjoined when engaged in an unwarranted attempt to amend the constitution. To issue, an injunction in this action ivould be to enjoin the legislature and electors in the exercise of their legislative duty. Suppose a bill having passed the legislature, is in possession of the governor, or, to make the analogy more nearly complete, suppose it is being conveyed to the executive by an officer of the legislature, would anyone imagine the progress of the messenger could be arrested by an injunction ? The inquiry answers itself. Is there any distinction in principle or reason between such a case and the case under discussion? Clearly none. An injunction cannot be *440granted to prevent a legislative act by a municipal corporation. Comp. Laws, §4650. The Code expresses the settled doctrine in this respect. Spelling, Extra. Relief §688. If courts cannot interfere with the legislative proceedings of a city council, they certainly cannot with like proceedings in the legislature itself. If they cannot prevent the legislature from enacting unconstitutional laws, they cannot prevent it and the electors from making ineffectual efforts to amend the constitution. The fact that the present attempt is without precedent is of much weight against it. Mississippi v. Johnson, supra.”
The cogent reasoning of the South Dakota court applies with equal force here, for no one will pretend that the provisions of our proposed Constitution can ever have the effect of law unless approved by the people next November: And not then, unless free of conflict with the Federal Constitution, and unless proposed in accordance with the terms of the present Indiana Constitution. The voters of the State may reject the instrument—and the only presumption now allowable is that they will do so if it violates the Federal Constitution, or was proposed in violation of our present one. In such event, the preparation of briefs here, aggregating five or six hundred printed pages; the oral argument, occupying thrice the time usually allowed; the long time necessarily spent by this court in considering this appeal, with the resultant further postponement in considering others long pending, and where the questions are real, and not moot; the expense occasioned to the State and the parties by this appeal, aggregating vastly more than that of submitting the proposed instrument, will have been each and all in vain, for the writer feels assured that appellee will not contend that his motive in bringing this suit was to save his share of taxes to be caused by the submission, and amounting, as appellants’ counsel facetiously remark, to the “price of a postage stamp”. As appellants well say, if this suit be deemed one for all the taxpayers and voters *441of the State, no possible relief is demandable, for the simple reason that the voters and taxpayers of the State hold in their own hands the power of issuing.an injunction from which no appeal is permitted, by simply discharging their duty at the polls.
But in the opinion of the writer, the decision of this really moot question, in favor of appellee, -includes a new and erroneous departure from established doctrines of the division of governmental powers. Holding elections and voting, involve the exercise of political powers only, and this injunction is really against the voters of the State. Heretofore courts of equity have ever been denied such power. Landes v. Walls (1903), 160 Ind. 216, 66 N. E. 679; Hovey v. State, ex rel., supra; Smith v. Myers (1887), 109 Ind. 1, 9 N. E. 692, 58 Am. Rep. 375; 1 Pomeroy, Eq. Rem. §§324, 331, 332; Georgia v. Stanton (1867), 6 Wall. 50, 18 L. Ed. 721; Winnett v. Adams (1904), 71 Neb. 817, 99 N. W. 681, and cases cited; Fletcher v. Tuttle (1894), 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. 220; Giles v. Harris (1903), 189 U. S. 475, 23 Sup. Ct. 639, 47 L. Ed. 909; Larcom v. Olin (1893), 160 Mass. 102, 35 N. E. 113; Hardesty v. Taft (1865), 23 Md. 512, 87 Am. Dec. 584; Story v. Jersey City, etc., Road Co. (1863), 16 N. J. Eq. 13, 84 Am. Dec. 134; Jones v. Black (1872), 48 Ala. 540; Holmes and Gray v. Oldham (1877), 1 Hughes 76, Fed. Cas. No. 6,643; Weber v. Timlin (1886), 37 Minn. 274, 34 N. W. 26; Smith v. McCarthy (1867), 56 Pa. St. 359.
A further particular reason why courts should not enjoin the submission of proposed constitutional amendments by reason of some alleged infirmity, is because they must be voted on, if evei’, on a fixed day. It might happen that this court should decide, as in the highway case of Smith v. Board, etc., supra, against the constitutionality of an amendment proposed for submission, and in the meantime, on petition for rehearing, after the election, reach a different conclusion. Such a situation might arise in this ease. By *442assuming jurisdiction of such cases, the courts may deprive the people of the privilege of amending their constitutions by their confessedly erroneous action, the correction of which is prevented by lapse of time.
My apology for this long dissenting opinion is found in the gravity of the questions presented, and which is fully recognized by the Supreme Court of the United States and those of other states, but which is not, in my judgment, properly realized in the majority opinion.
There was a time in the history of the English people when, by the combined usurped powers of the executive and the courts, members of parliament were cast into prison, and the constitutional authority of parliament was insulted and defied by the courts until it almost ceased to exist. The Puritans, in despair, sought an asylum in America. Macaulay’s History of England 90. The court of Star-Chamber, guiltiest of all in usurping power, was abolished in 1640. 4 Blackstone’s Comm. 267; Hallam, Const. History 258, 292. Since then no English court has deigned to dictate to parliament what laws it shall, or shall not, enact.
The descendants of the Puritans took no small part in framing our early American Constitutions. In all these the independence of the legislative department was thought to be impregnably guarded. Constitution Art. 4, §§8, 9, 16. All power is inherent in the people (Constitution, Art. 1, §1), and they alone may exercise the paramount legislative power of formulating a constitution. State, ex rel., v. Thorson, supra. If the courts may dictate to the people in advance what provisions they may or may not insert in their constitutions, they certainly cannot be denied the lesser power of dictating to .the General Assembly what laws it may or may not enact.
The plaintiff here comes into court, demanding in advance of the electors’ expression of approval or disapproval, of what he claims is a series of constitutional amendments, the determination and adjudication of their future validity, *443if approved, and if, in the opinion of the court?, there is a prospective invalidity, that the voters of Indiana he restrained from voting on the proposition, hy enjoining the Governor and other officers from supplying them with ballots that are so printed as to enable them to express their choice. This remarkable prayer was granted by the lower court, and is sanctioned by the majority opinion here. Since 1640 the courts of English speaking peoples have resolutely and invariably denied the existence of any such power, and I most earnestly protest against its revival now.
Por the foregoing reasons, and for others set out in appellants’ briefs, the circuit court had no jurisdiction of the cause of action, and the judgment should be reversed, with instructions to sustain the motions in arrest of judgment.
Where the lower court has no jurisdiction of the subject matter of the action, it is improper for this court to consider other questions urged. State, ex rel., v. Thorson, supra.
Spencer, J., concurs in the above dissenting opinion.Note.—Reported in 90 N. E. 1, 99 N. E. 29. See, also, under (1) 8 Cyc. 806; (3) 8 Cyc. 714; 36 Cyc. 940; (5) 36 Cyc. 1152; (6) 8 Cyc. 733; (8) 8 Cyc. 741; (9) 8 Cyc. 721; (10) 8 Cyc. 728, 796; (11) 8 Cyc. 854; (13) 22 Cyc. 881, 885; (14) 8 Cyc. 848; (15) 22 Cyc. 910.