dissenting:
I dissent.
It is my opinion that the presumption of constitutionality has not been overcome. Of the many cases approving such presumption, no case in this state seems to have expressed it more strongly than Hess v. Pegg, 7 Nev. 23 (5-6-7 Nev. 715, 721). This court there said:
“For this court to oppose its judgment to that of the legislature, excepting in a case admitting of no reasonable doubt, would not only be contrary to all well considered precedent, but would be an usurpation of legislative functions. It cannot be denied that the tendency in some states of this union is that way, undoubtedly from good motives; but the sooner the people learn that every act of the legislature not found to be in ‘clear, palpable and direct conflict with the written constitution,’ must be sustained by the courts, the sooner they *489will apply the proper correction to unjust or impolitic legislation, if such there be, in the more careful selection of the members of that branch of the state government to which they have delegated and in which they have vested the ‘legislative authority’ of this state. No court should, and this court will not, step out of the proper sphere to undo a legislative act; and therein, no court should, and this court will not, declare any statute void because unconstitutional, without clear warrant therefor.”
It seems to me that sec. 8 of Art. 8 of the constitution considered in Caton v. Frank, 56 Nev. 56, 44 P.2d 521, 522, just as clearly contemplates an election as does sec. 3 of Art. 19. At least it connoted that much to this court, for it referred to the contention that the initiative petition there involved was limited by the constitution to a “vote” of “the electors” “cast at an election” and held that the legislature could provide any reasonable and uniform method whereby the qualified “voters” expressed their desire.
I see no escape from the fact, then, that this court held in Caton v. Frank that sec. 8 of Art. 8 required an election; that in such election the electors, or voters, would vote. This being so, the language there used is just as effective as that used in sec. 3 of Art. 19 in which the people reserved to themselves the power to propose laws and to enact or reject the same at the polls.
Section 3 of Art. 19 then provides: “The legislature may provide by law for the manner of exercising the initiative and referendum powers as to county and municipal legislation, * * It was pursuant to that constitutional provision that the legislature enacted NRS 268.010, under which the electors could themselves amend their charter by filing a 60 percent initiative petition. This was held in Catón v. Frank to have provided a reasonable and uniform method “whereby the qualified voters of a city may, by a majority, express a desire to amend such charter” and which was held to be not in conflict with sec. 8 of Art. 8.
I see no valid reason for overruling that decision. I agree with that holding that the machinery of a 60 *490percent petition provided a reasonable and uniform method under which 60 percent of the voters express their will. We said in Beebe v. Koontz, 72 Nev. 247, 802 P.2d 486, 489: “* * * in the Catón case the action sought by the petition was far more drastic, in that the petition itself, signed by 60 percent of the electors, was a species of election and actually effected the amendment without an election, while the petition in the instant case simply initiated election proceedings. We recognized such a distinction in State ex rel. Quimby v. City of Reno, 71 Nev. 144, 282 P.2d 1071.” If that was dictum in Beebe v. Koontz, I would declare it here to be the law—our approval of the direct pronouncement of the legislature.
In the Quimby case just mentioned, involving annexation of property to the city, we referred to action by the city council, “where the action of the board does not simply initiate election proceedings but in itself is a species of election which effectuates the annexation.” Reference was made to decisions from other jurisdictions which used similar expressions.
The majority of the court appears to feel that, although in Caton v. Frank this court held that sec. 8 of Art. 8 of the constitution was not violated by a statute permitting the amendment of the city charter “by the filing of a petition signed by only a percentage of the qualified voters,” the court there felt that it was unnecessary to decide the point and that the holding is therefore not controlling in the instant case. With all respect, I am unable to agree with this conclusion. Catón v. Frank was an original proceeding in mandamus in this court to compel the mayor and city council of Reno to proceed upon a petition signed by a number of the qualified voters of Reno to amend the charter. This court recited that the petition first presented the question as to the constitutionality of the statute requiring such amendment upon the filing of a 60 percent petition. As we have above noted, it disposed of this question by deciding that the statute did not violate sec. 8 of Art. 8 of the constitution. It then proceeded to the second point, namely, whether the petition *491had been signed by 60 percent of the qualified electors. It decided that it had not been so executed and denied the writ. Then at the end of the opinion the court stated, as noted in the main opinion: “There are other questions raised by respondents’ demurrer, but, we feel, in view of the conclusion here reached, namely, that the petition is insufficient to justify the issuance of the writ as prayed for, it would be unnecessary to decide the other points raised.” It did, however, definitely pass upon the constitutional question.
I am compelled to conclude that the majority places too much emphasis on those words contained in sec. 3 of Art. 19 under which the people reserve to themselves the power “to propose laws * * * and to enact or reject the same at the polls, independent of the legislature, * * The words italicized are in my opinion merely descriptive of the exercise of independent choice, and the emphasis should be placed upon the reservation of the right of initiative and referendum to the people and to reserve it to them independent of the legislature. When the constitution itself provided that the legislature should provide the manner of exercising the initiative and referendum powers and the legislature in its wisdom felt that it would be a waste of time and expense to require an election at the polls when a majority of the voters had already expressed their view in writing, I cannot conclude that this was in “clear, palpable and direct conflict with the written constitution,” justifying the decision of this court that it is necessary “to undo [the] legislative act.” At least I cannot so conclude in the face of complete absence of authority to' support such action. I would reverse the judgment of the district court.
Badt, J.