(dissenting). The importance of this case prompts me to state the reasons upon which I base my dissent from the opinion of the majority.
1. The initiative and referendum amendment is void, because a majority of the qualified electors voting at the election did not vote for it. Section 273 of the Constitution reads in part as follows:
“If it shall appear that a majority of the qualified electors voting shall have voted for the proposed change, alteration, or amendment, then it shall be -inserted by the next succeding legislature as a part of this Constitution, and not otherwise.”
This section of the Constitution is mandatory, and provides that no amendment shall be inserted by the *817legislature as a part of’ the Constitution unless it shall appear that a majority of the qualified electors voting shall have voted for the amendment. The authorities hold, and it is conceded here by all parties, that a majority of the electors voting means a majority voting at that election, and that whether an amendment to the Constitution has been adopted by the required majority of voters and properly inserted in the Constitution by the legislature is a question for judicial determination, and that the courts may look to the official returns filed in the office of the secretary of state, and from these returns may take judicial notice of the result of the election as shown thereby. State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652; Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595.
In the case before us two sets of returns were filed with the secretary of state by the election commissioners. The first set was incomplete, and did not purport to show the total number of voters cast at the election, but merely showed the highest vote cast for any candidate voted for at the election, which showing could not reveal definitely the total number of 'voters voting at the election, because the highest vote cast for any candidate or measure is always less than the total vote cast at the election for all the candidates or measures where there are- several candidates and measures on the ballot. It is a well-known fact that a considerable percentage of the voters do not vote for each and all of the .men or measures on the ballot; and so it appears here that the highest vote cast for any candidate, according to the first returns, was about an average of thirty-one votes-less in each of the eighty .counties than the total number of votes cast at the election in each county, as shown-by the amended returns.
When the incompleteness and incorrectness of the first returns appeared to the secretary of state, he, realizing the necessity of an ascertainment of the total number of votes cast at the election, so that it might be correctly *818determined whether or not the proposed amendment had received a majority of the votes cast, requested of, and obtained from, the commissioners of election in all the counties amended and complete returns, certifying and showing the total number of votes cast at the election, as shown by the voting lists that were kept by the election officials, and which recorded the names of the voters and the ballots as they were deposited in the ballot bos. See Report of Secretary of State, November, 1915, pp. 76, 77; State v. Pigott, 97 Miss. 599, 54 So. 257, Ann. Cas. 1912C, 1254; State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652. These complete, certified, unquestioned, and undisputed returns were filed with the secretary of state within ten days after the election, as required by law, and were duly submitted to the legislature. These returns show that forty thousand and seventy qualified electors vote'd at the election, and that nineteen thousand one hundred and eighteen electors voted for the initiative and referendum amendment, which number is less than a majority of the total votes cast at the election. Therefore, it appearing that the amendment did not receive “a majority of the votes of the qualified electors voting'” at the election, it could not be validly inserted by the legislature as a part of the Constitution. The correctness, regularity, and legality of the amended returns certifying the total number of voters voting at the election is not contested or disputed, except by argument based upon speculation and mere conjecture. In fact, these returns are the only returns that attempt or purport to show the total number of votes cast, and they being the best evidence, and in fact the only positive and conclusive evidence, as to the material question of the total number of voters voting, they must govern and settle the question, and establish the truth to be that forty thousand and seventy votes were cast at the election; and, this being true, the amendment failed.
*819In the Jones Case, 106 Miss. 522, 64 So. 241, the court acted upon returns there which did not purport to show the total number of votes east, but it acted upon the presumption that the total number of votes shown to have been cast for the candidate receiving the highest vote was the total number of votes cast at the election. This is an unsatisfactory standard, but the court had no other in that case. But in the case before us now we have the complete and correct returns which show definitely and positively the total number of votes cast, according to the records kept by the officials holding the election.
The effort of the majority opinion to discredit or undervalue these amended and complete returns can find no support in reason or authority. The certified voting list showing the registration of the names of the voters and that they voted by putting their ballots in the box, is presumptive, and even conclusive, evidence of the total number of votes cast at the election, and should prevail, unless the presumption is rebutted' and overcome by evidence to the contrary. Board of Trustees v. Board of County Commissioners, 61 Kan. 796, 60 Pac. 1057; People v. Ruyle, 91 Ill. 528; 15 Cyc. 376. Nothing is shown here to discredit or impeach the truth of the amended returns. It therefore appears beyond a reasonable doubt that the amendment did not receive a majority of the votes cast at the election.
I do not know what the legislature thought about this amendment when they passed the resolution inserting it into the Constitution. I can only judge from the language used in the resolution. There were nine constitutional amendments voted upon at the same election, and afterwards inserted into the Constitution by the legislature at the same session of 1916. One of these nine amendments was the initiative and referendum amendment here involved. All of the other eight amendments, except one, received more than twenty thousand and thirty-six votes, a majority of the votes cast, according *820to the amended returns, the only returns that even attempted to show, and did show, the actual total vote cast, and the legislature adjudicated and certified the fact, in the resolutions inserting these other eight amendments, in the following language: .
“And as appears from the returns thereof duly made to the secretary of state, a majority of the qualified electors voting thereat voted in favor of the said amendment.” Acts of 1916, p. 218.
It is seen that the .legislature adjudged and certified the important fact that these eight amendments received a majority- of the votes cast as required by section 273 of the Constitution, -and they had no trouble in adjudicating this fact because these eight amendments except one had, as a matter of fact, received a majority of the forty thousand and seventy votes cast at the election, and the decree of this fact by the legislature was proper, and should forever preclude inquiry as to matters behind it. But when the legislature resolved to insert the initiative and referendum amendment, here in question, observe what they said in this resolution, which I quote as follows:
“As appears from the returns duly made to said secretary of state, nineteen thousand, one hundred and .eighteen votes were cast in favor of said amendment, and eight thousand, seven hundred and eighteen votes were cast against said amendment. Therefore, be it resolved,” etc. Acts 1916, page 219.
It seems that the legislature was careful to- avoid adjudging and certifying that this initiative and referendum amendment had received a majority of the votes cast at the election, but they inferentially negatived the fact. They did not even attempt to say how many votes were cast, but leave the reader' to infer what he will for himself. And we are asked to certify a fact which the legislature refused to do. I cannot consistently do so. Why did they not certify in this resolution, as they had in the other eight resolutions, that the amendment re-*821eeived a majority of the votes cast at the election 1 This court has often held that boards of supervisors in minor matters before them must adjudicate and certify upon their minutes, certain facts in order to give validity to their actions. All will no doubt agree that the legislature either did not believe this amendment had received the constitutional majority at the polls, or they seriously doubted it, and yet they inserted it in the face of section 273, which is mandatory and imperative, and which so clearly prohibits the insertion, unless it shall conclusively appear that the amendment received'a clear majority of the votes cast at the election. And the majority decision of this court is now giving judicial sanction, in my judgment, to this violation of the Constitution.
2. I am equally certain that the initiative and referendum amendment to the Constitution is invalid, for the reason that it was not properly submitted to the voters, as required by section 273 of the Constitution, which reads' in part as follows:
“And if more than one amendment shall be submitted at one time, they shall be submitted in such manner and form that the people may vote for or against each amendment separately. ’ ’
I think that the amendment as submitted contains more than one subject, or purpose, and is therefore not one single amendment, which should have been submitted separately.
The majority opinion relies upon the Jones Case, supra, for its support, and I accept that decision as being correct, and I propose to follow it as the law in this state in discussing the questions involved in this case. The principle announced in the Jones Case, which I quote from that opinion, is as follows:
‘ ‘ In order to constitute more than one amendment, the proposition submitted must relate to more than one subject, and have at least two distinct and separate purposes, not dependent upon or connected with each other. ’ ’
*822This is a sound rule, and it was applied in the Jones Case by extreme liberal construction; but my brethern here make the plain mistake of applying that principle to a problem quite different from that presented in the Jones Case. The trouble is not with the principle announced, but the error lies ’ in its application. The amendment involved in the Jones Case was an amendment of section 153 of the Constitution, which provides that the judges of the circuit and chancery courts shall be elected instead of appointed, as provided by this single section 153 before amended. The amendment there was of one section of the Constitution and dealing with one subject, viz. nisi prius courts, or judges of courts of original and concurrent jurisdiction. The Constitution treated it as one subject. Though separated in the administration of their respective functions in this state, either court could hear and determine all matters within their respective original jurisdictions— and this is done in some states — if one or the other court were abolished. The purpose there was to change the Constitution so that this particular part of the judiciary, treated as one subject in one section, would be elective, instead of appointive, thereby prescribing a harmonious scheme of electing these nisi prius judges, with similar, original and concurrent jurisdictional powers.
But the case at bar is radically different. Here the amendment submitted and voted upon as one amendment contains three distinct subjects, or powers, or purposes, to wit: First, the right by petition of six thousand voters to refer any legislative act to the people for ap-_ pro val or rejection; second, the right of seven thousand five hundred voters to propose any measure by initiative petition to the people for adoption or rejection; third, the word “measure” meaning any constitutional amendment or legislative measure, bill, or statutory law, it provides for amendment of the Constitution by initiative petition. In the Jones Case, supra, this court said, *823in substance, that if the proposition submitted related to more than one subject, and to separate purposes independent of each other, then it was imperative under the Constitution that the matters be submitted separately.
Is there more than one subject, or one purpose, embraced in the proposition submitted in the case before us? That there is more than one subject here must clearly appear to the mind of the well-seasoned lawyer. It deals with section 33 of the Constitution by changing the exclusive method of enacting statutory law by the legislature, subject to the veto power of the Governor; and it deals with section 273 of the Constitution, a different section in a different article from section 33, and changes the exclusive method prescribed there of amending the Constitution, and in effect strikes down the safeguards there provided. Therefore the amendment relates to at least two subjects: The enactment or repeal of statutory law: and the change or amendment of Constitutional law.
That there is a clear difference between a statutory provision and a constitutional provision, I have no doubt whatever. The distinction between the two is a matter of legal and judicial history. From time immemorial they have been treated as separate and distinct in character and dignity by the makers and expounders of the law. Should you say that there is no difference between the two, you then put them upon a parity, and dispute the necessity and wisdom of any Constitution at all. Constitutions are made by the people, and are basic rules, and the supreme law of the land. Statutory law is enacted by the legislature, within the limits and powers prescribed and conferred by the Constitution. But my bretheren say that the two matters or subjects are but one subject in fact; that is, “law,” statutory and constitutional. This reasoning is unsound, and finds no supporting authority outside the minds of my learned associates. To illustrate the error they make: If you speak of a humming bird and an eagle, you would, *824in a sens©, speak of the same subject, viz. “birds,” “fowls of the air;” hut a clear difference exists between the two kinds of birds. Here there are two subjects of “laws” — not one single subject of “laws,” but two subjects of “laws,” disconnected with and independent of each other.
The amendment has more than one distinct and separate purpose. Its purpose was to do three separate and distinct things, viz.: To provide a referendum to approve or reject the legislative acts; second, to provide that laws may be proposed and adopted by initiative petition; and, third, to provide that the Constitution may be changed or amended by initiative petition of a different number of voters than is required, for other initiative and referendum petitions — thus showing the distinction in the different subject-matters. None of these three subjects are connected with, or dependent upon, the other, but they are separate and distinct from each other, and may stand alone; therefore the amendment here submitted contains at least two, if not three, amendments that should have been submitted separately. The voter might favor one, or even two, of these amendments, and wish to reject the other; but he must take or reject all or none, because he is denied his constitutional right to vote on the amendments separately. Some voters might think the referendum is a good law for the purpose of a check or veto power against undesirable legislation; while others may believe that amending the Constitution by initiative petition of a small per centum of the people, thereby subjecting the Constitution to change by political waves, or the fanciful whims of a few people, is not wise or desirable. Therefore the people should be permitted to vote on the amendments separately.
In the Powell Case, supra, the court, through Chief Justice Whiteielu, said':
“Whether an amendment is one or many clearly must depend upon the nature of the subject-matter cov*825ered by the amendment. If the propositions are separate, one in no manner dependent upon the other, so that a voter may intelligently vote for one and against the other, one being able to stand alone, disconnected wholly from the others, then such amendments are many, and not one, are severable, and not a nnit, are complete each in itself, and not each a part of an interdependent scheme.”
While it is true, in a broad and general sense, constitutional provisions and statutory enactments are “laws,” they are treated as different subjects, as distinct subjects, both by the law writers and by the courts. They are both laws, but one is the supreme law, the organic law, superior to legislatures creating them, and limiting and defining their powers. It is true that the people, in promulgating the Constitution, provided for its amendment, which amendment must be by the people; but in the article on the subject we have surrounded the subject witlp safeguards and difficulties, and this was done advisedly and for a very vital purpose. In the Jones Case, supra, the court said:
“The evident purpose of this section [referring to section 273 of the Constitution] is to exact the submission of each amendment to the Constitution on its merits alone, and to secure the free and independent expression of the will of the people as to each. The importance of this cannot be too strongly stated.’ ’
Again, it is said in the Jones Case:
“That the people of the state, acting through the constitutional convention which framed the Constitution, intended to impose and did impose certain limitations upon amendments of that instrument which must be strictly followed before the same can be amended, we entertain no sort of doubt.”
Following the riile laid down in the Jones Case, and applying the principle announced there, it is not difficult to become thoroughly convinced that there is a marked difference between this case and the Jones Case, *826and that the case before us now does not come within the rule or principle announced by Justice Sexton in the Jones Case.
3. In speaking of the importance and necessity of the Constitution being difficult to change, and the desirability that it he a permanent instrument, Justice Whitfield, in the Powell Case, supra, 77 Miss. at Page 578, 27 So. 933, 48 L. R. A. 652, says:
“The significant fact thus stands out, like a mountain in the landscape, that for the whole period of time from 1817 to 1890, the Constitution of the state having been four times changed during such period, a period of seventy-three years of state history, the people of this state, speaking through their sovereign instrument, the Constitution, had uniformly declared that no majority of electors less than a majority of those voting for members of the legislature (which election would bring out, it was presumed, the largest number of electors), should avail to change the organic law of the land. That law reaches with its protection every one in the state. Unlike an act of the legislature, which may or may not be general, its effectiveness is universal, its potency reaches in its power the territorial limits of the whole state and protects all rights of life, liberty and property thereunder. This charter of our liberties, this ark of the covenant, the people for seventy-three years had said should not be touched lightly or carelessly changed.”
The views of Justice Smith, in Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1, are valuable on this subject. Here is what he said: “It is true that Constitutions may be amended; but it is also true that this can be done only with great difficulty, and, moreover, frequent changes in the fundamental law of a state are not desirable. But, be that as it may, Constitutions must be construed upon the theory that they were intended to last for all time. The supreme court of the United State long since has said, in Martin v. Hunter, 1 Wheat. 304, 4 L. Ed. 97, that the Constitution was not intended to provide *827merely for the exigencies of a few years, but was to endure through a long lapse of ages.”
The majority opinion of this court, upholding the initiative and referendum amendment to the Constitution, practically abolishes representative state government, and places constitutional amendments on a parity with ordinary statutes in Mississippi. In effect, the strength and dignity of the Constitution as a system of basic law, and its permanency as a charter of liberty and equality, protecting the weak against the strong, the minority against the majority, and preserving a government by the white man, is seriously impaired. Such was not the public policy of our state, nor the expectation of the wise constitution makers when they framed it. These public benefactors would hardly believe that the Constitution they wrote, and which has withstood all assaults, and has been followed by the Southern States as a model of ingenuity and wisdom, would so soon be changed by amendment, so as to destroy its purpose and policy. But, of course, changing or altering the Constitution is permissible under its own provisions, and if it be the wish of the people that it be changed, then no man should complain: for, after all, the people are the government, and should have the supreme right and power to control it, either directly of indirectly, as they may prefer, and.this inherent right cannot be taken away nor surrendered, except by the people themselves. But when the .people speak through their Constituton, and provide a plain, positive, and exclusive method of changing or amending it, that method should be followed as prescribed, for it is unquestionably true that the command of the Constitution is but the voice of the people speaking through their organic charter.
In the case before us the method prescribed by the people, through their Constitution, for amendment thereof, was not followed, but the positive directions of the Constitution on that subject, in my judgment, were ignored and flagrantly violated; and as a result of this *828erroneous decision, the’ Constitution, the rock of the fathers, may now be easily changed, or repealed, by the method provided in the crude and defective initiative and referendum amendment here in question. That sacred instrument, which has so long been regarded as a monument to the wisdom and patriotism of the great minds that framed it, some of whom have passed to the Great Beyond, is now stripped of its dignity and stability and put upon equal terms with the ordinary legislative act. and that, too, without giving the people a chance to vote on it separately, and without adopting it by a majority vote, as required by the people in speaking-through their Constitution.