SEPARATE CONCURRING OPINION.
GRAVES, J.I. I fully concur in all that Pox, C. J., has written in this ease. The points made by him are unanswerable, but in the argument and in the briefs another point was raised upon which I have well defined views. With these views I feel that I would be remiss in duty did I not mention them, and this is the reason for a separate concurring opinion. The opinion written by the Chief Justice is sufficient to dispose of the case, but in my judgment does not fully cover the point I have in mind. By counsel for Mr. Dickey it was contended in brief and argument that under the initiative and referendum provision in our Constitution the Secretary of State was a mere cogwheel in the legislative department. That under such circumstances this court could not interfere with the acts of a co-ordinate branch of the government. In this the relator argues too much. We think that his position is untenable, and his idea of the status of the *445Secretary of State is wrong. We can better illustrate our individual views by granting, for argument’s sake, tbe position of relator and counsel for Mr. Dickey. They urged in the argument tbat respondent, in so far as bis conduct of filing initiative petitions is concerned, was to be considered as a part of tbe legislative or lawmaking power; tbat the Secretary of State, in such conduct, was but a cogwheel in and a part of tbe legislative department; tbat for such reasons this court could’not mandamus him; that the act, being legislative in character, belonged to another of tbe three departments of government, and this court was thereby precluded from action.. If such be tbe status of tbe Secretary of State tbe contention is well founded. We recognize tbat a court cannot compel by mandamus tbe legislative power to act upon a given proposed law. We recognize tbat a court cannot enjoin tbe legislative power from enacting a proposed law, although tbe proposed measure may be violative .of constitutional provisions. Now, if tbe Secretary of State, in this particular matter, is legislating or acting as a legislative agent, then what have we? Tbe courts cannot mandamus him, nor can they enjoin him. Tbe sweet will of tbe Secretary of State decides, without redress, the fate of any proposed measure. If be be a cogwheel of the legislative department, be, like a Legislature, may refuse to act, and tbe courts are powerless. Not only are tbe courts powerless, but tbe people, tbe real legislators under tbe initiative and referendum, are powerless. Tbe contention, tbat tbe Secretary of State in tbe filing of a petition is more than a mere ministerial administrative officer, when thought out, reduces itself to an absurdity. If bis acts are beyond tbe reach of this court through mandamus, they are beyond tbe reach of a circuit court by either mandamus or injunction. When you place tbe status of tbe Secretary of State upon any other basis than tbat of a *446ministerial, administrative or executive officer, you give him absolute control of what shall and what shall not be submitted to the people. The argument, therefore, that such officer, as a part of the legislative department, cannot be reached by the courts, falls of its own weight. His acts are but ministerial in connection with an election to be held. The election.of course is one with reference to a proposition, rather than one with reference to a person, but his duties pertaining to such election are ministerial in the one as well as in the other. Because he has been made the officer with whom petitions must be filed does not change the character of his duties from those imposed upon him by the old primary law and other laws. The fallacy of relator’s position lies in the fact that he would have the Secretaiy of State considered, in this matter, as a part of the legislative department. Most ministerial and administrative officers are clothed with more or less discretion, but a wrongful exercise of that discretion may be reached by the courts.. The Secretary of State is possessed with discretion. [State ex rel. v. Lesueur, 103 Mo. l. c. 262.] That the courts will control such discretion under given conditions appears by the following among a dozen other cases: State ex rel. v. Public Schools, 134 Mo. l. c. 304-307; State ex rel. v. Goodier, 195 Mo. l. c. 560; State ex rel. v. Adcock, 206 Mo. 550.
If the counsel for Mr. Dickey earnestly believe that Roach, the respondent, is a cog-wheel in the legislative department, then their appearance in this court was uncalled for and detrimental to their own interests. If we conclude that he performed a duty otherwise than the usual duties imposed upon him concerning elections, and as a ministerial officer, then his act in refusing to file the petitions is final in this, as well as all future cases. Such was never the intent of the people when they adopted the initiative and referendum amendment in 1908, and such was not the construction *447placed thereon by the Legislature in 1909. This we discuss more fully in a succeeding paragraph.
II. The Act of 1909, Laws 1909, p. 554, is a clear legislative declaration of the character of the duties of the Secretary of State under the Initiative and Defer endum Amendment. The amendment itself sufficiently declares the character of his duties. But take the legislative construction first. The constitutional amendment provides that the petition, both for the initiative and the referendum, shall be filed with the Secretary of State. Section 4 of the Act of 1909 carrying out this constitutional mandate, provides that if the Secretary of State shall refuse to accept and file such petitions “any citizen may apply, within ten days after such refusal, to the circuit court for a writ of mandamus to compel him so to do.” This statutory provision, however, as indicated in the opinion on the motion to dismiss, does not deprive this court of its constitutional power to issue writs of mandamus in these cases. Such was conceded by leading counsel for Mr. Dickey. Further on it is provided that if the court shall find “that any petition filed is not legally sufficient, the court may enjoin the Secretary of State and all other officers” from placing the measure upon the official ballot. It thus appears that the Legislature never thought that the Secretary of State was beyond the reach of the courts. This Act of 1909 very properly recognizes that the acts of the Secretary of State are ministerial, with some discretion to be exercised by him. The Legislature clearly had no idea that the Secretary of State was a part of the legislative department of government, and therefore above and beyond the courts. This section also says that if the court' decides that the petition “is legally sufficient” then the Secretary of State shall be directed to file the same, but if “not legally sufficient” the court shall enjoin the Secretary of State and all other officers from placing the same upon the official *448ballot. Prom this it is clear that there is a duty enjoined upon the Secretary of State to examine into the legal sufficiency of these petitions and to file or not file them as his discretion dictates. Prom his ruling or action redress is left to the courts. In this connection it should also he remembered that under the Constitution the measure itself is a part of the .petition. It says “every such petition shall include the full text of the measure so proposed.” The italics are ours. So that in determining-the sufficiency of the petition, both the courts and the Secretary of State have to consider, in a way, the proposed measure. This because it must be included in the petition. We do not mean to say that either the Secretary of State or the courts should hold the petition bad on the sole ground that the measure was unconstitutional, because it is not necessary to pass upon that question for a full determination of this case. Let the evils of the hour be determined during the hour. But this is adrift. Going back to the- question as to the status of the Secretary of State in initiative and referendum proceedings we find that the first lines of section four recognize that the Secretary of State, in the exercise of his discretion, might refuse to file some petitions, and throughout this entire section is strong legislative construction adverse to the contention of learned counsel for Mr. Dickey. Not only does the Act of 1909 recognize that the Secretary of State is a ministerial officer, rather than a cog*-wheel in the legislative department, but the'initiative and referendum amendment itself does not look upon him otherwise. As to an election upon referred laws, the election may be ordered in two ways, (1) by the Legislature itself, or, (2) by the Secretary of State upon the receipt of proper petitions. The Constitution reads: “The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety and laws making appropriations for the current expenses *449of the State government, for the maintenance of the State institutions and for the support of public schools) either by the petition signed by five per cent of the legal voters in each of at least two-thirds of the congressional districts in the State, or by the legislative assembly, as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded.”
It is clear that the referendum power may be put in motion by either the Secretary of State or the Legislature, but it will be observed that certain'kinds of laws cannot be referred. Does not this contemplate that the Secretary of State shall examine the petitions and see that the petition is sufficient under the Constitution and laws? Suppose a petition for a reference of the lawmaking appropriation for the current expenses should be presented to the Secretary of State, is it to be said that he could not refuse to file such a petition?' Is there not a power there for him to judge as to the sufficiency of the petitions under the exceptions in the Constitution itself? The same applies to laws as to the public peace, health and public institutions. Are these laws. to be suspended until action by the people or has the Secretary of State some discretion? Clearly the latter. The legal sufficiency of the petition is determined from an examination of the petition and the attached measure, which is a part thereof. An examination of the law and the Constitution forces me to the conclusion that the functions of the Secretary are those of a ministerial officer, with the usual discretions lodged in such officer, and not those of a cog-wheel in the legislative department. As above stated, and as shown by the cases cited, the abuse of discretion can be reached by the courts. I therefore have no doubt that this court is fully possessed of jurisdiction, and that *450the writ should be denied upon the grounds stated in the opinion of Pox, O. J., and it may be upon other points made-.
Fox, C. J., Gantt and Burgess, JJ., concur in these views also {Lamm and Woodson, JJ., dissent; Vallicmt, J., absent.