DISSENTING OPINION.
WOODSON, J.Entertaining the views I do of this proceeding, in my judgment it would be improper for me, at this time, to express an opinion as to the merits of the case.
I am unable to agree with our learned Chief Justice and other of my associates as to the powers and duties of the Secretary of State in the premises. In my opinion the design of the Legislature, in requiring the petitions of the voters to be filed with the Secretary of State, was simply to make him the custodian of the petitions and .other proceedings in initiative and referendum legislation, in the same manner as he is now the custodian of all the proceedings leading up to legislation to be enacted by the General Assembly of the State; and the question of their validity, as well as all laws enacted by the people in pursuance thereof, is no more addressed to the courts, until after their enactment, than are the proposed enactments of the Legislature. It is conceded by all that a proposed bill, however offensive it may be to the organic law of the State, pending in the Legislature, cannot be controlled by the courts prior to its enactment, for the obvious reasons, first, because the courts have no authority or jurisdiction over the Legislature; and, second, because the bill may neve„r receive the sanction of that lawmaking power. And, in my opinion, the same is true of the initiative and referendum. The courts have no power or jurisdiction to control the action of the sovereign people in the enactment of laws; and they may re*451pudiate the proposed legislation submitted to them for ratification, which fact would obviate the necessity of all action on the part of the courts. To hold that the courts cannot control the people themselves in such legislation by a direct proceeding instituted against them, but that they can do so indirectly by controlling the action of the Secretary of State, who is but their representative, is to ignore that legal maxim which prohibits that from being done indirectly which may not be done directly.
The mere fact that the Initiative and- Referendum Act provides that, in case the Secretary of State should réfuse to file the petitions mentioned therein, etc., is nó authority for holding that he possesses a judicial or discretionary power to pass upon their validity. In my opinion that provision of the act was inserted not for the purpose of vesting that power in him, but for the purpose of making it clear that he had no such power and could be compelled by the courts to file the petitions regardless of his opinion of their validity; otherwise, that provision of the act is meaningless, for the reason the courts already possessed the power, under the general laws of the State, to control the discretionary powers of the Secretary of State whenever he abused or unwisely exercised that discretion.
Since the adoption of the Initiative and Referendum Act there are two lawmaking powers in this State, namely, the people themselves and the Legislature ; and the courts have no more power to control the action of the former than they have to control the action of the latter.
In my opinion it would be just as appropriate to pass upon the validity of or to construe a will when presented for probate as it would be to pass upon the validity of -a law or any of its preliminary steps prior to its enactment.
I believe this proceeding is premature, and therefore dissent from the conclusion reached by my asso*452ciates, and express no opinion at this time touching the merits of the proceeding.