dissenting.
Borrowing language from Julius Caesar, “the die was cast” in this ease in September of 1986, when this Court issued its decision and opinions in Associated Taxpayers v. Cenarrusa, 111 Idaho 502, 725 *408P.2d 526 (1986). The interested reader will remember that there Justice Bakes joined Justice Huntley in the holding that “The lottery initiative violates art. 3, § 20, of the Idaho Constitution. It is clearly an unconstitutional act, and an unconstitutional act is not a law.” 111 Idaho at 511, 725 P.2d at 537. Judge Schroeder in his opinion in this case took cognizance of the situation which he faced:
Forecasting the future is generally a gamble. However, in the context of this case there appears to be a better chance of predicting the fate of this initiative in the Supreme Court than there is of drawing the winning number in a lottery.
* * * * * #
Two of the five justices of the Supreme Court presently sitting have determined that the initiative is unconstitutional.
* * * * * *
Beyond simply counting numbers and anticipating that one of the three remaining justices will agree with Justices Huntley and Bakes, it appears likely that the Supreme Court will follow the general rule that legislation by initiative is on an equal footing with legislation by the state legislature, and Article III, § 20 prohibits the establishment of a lottery through any legislative process, including the initiative.
As I have pointed out on prior occasions, backed by the teachings of experience, in this business of appellate judging, three votes beats two any day. Exhibiting some degree of intuitiveness I wrote at that time to suggest the improvidence of Justices Bakes and Huntley “in forecasting the invalidity of the proposed lottery initiative.” Ill Idaho at 506, 725 P.2d at 30. Noting that life is not all that certain, my opinion observed that:
While chances are that, should the initiative pass into law, there will be a challenge, chances also are that the five attorneys who presently serve as justices of the Idaho Supreme Court might not yet be sitting when any challenge reaches this Court.
111 Idaho at 506, 725 P.2d at 530.
Had I been equally improvident at that time my vote would probably have brought me to joining ranks with Justices Bakes and Huntley. However, it would have been clearly wrong for me to vote on a constitutional issue which was not properly before us.1 Such was well pointed out in the separate opinions authored by Chief Justice Donaldson, Justice Shepard, and myself.
The problem with addressing an issue not properly before the Court is that counsel for the respective parties may not have anticipated such an impropriety on the part of the Court; hence the briefing may not be sufficiently thorough. For certain, the briefs and oral argument which are before us now are not mere replays of the briefs which we had in the Taxpayers v. Cenarrusa case.
At the time of Taxpayers our focus was, as clearly demonstrated by the views of Justices Bakes and Huntley, brought to bear almost entirely on the constitutional invalidity of any lottery measure. The language of the Constitution was passively accepted as explicit in declaring that lotteries are per se unconstitutional in Idaho. So I thought two years ago when the Taxpayers case was argued.
However, when the instant case was laid before us, complete with briefs and oral argument, a whole new aspect of the case materialized as to the tenor of the applicable constitutional provision:
§ 20. Lotteries not to be authorized.— The legislature shall not authorize any lottery or gift enterprise under any pretense or for any purpose whatever.
Idaho Const, art 3, § 20. This provision can only be read as applicable to, and only to, the Legislative Department. Broader in scope is art. 1, DECLARATION OF RIGHTS. Section 2 thereof contains extremely powerful language:
§ 2. Political power inherent in the people. — All political power is inherent in *409the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.
Idaho Const, art 1, § 2. That statement as to where political power is vested, “in the people,” should not be taken as just so much flowery language. Two hundred and twelve years ago the “Representatives of the United States of America, in General Congress assembled,” did “in the name and by authority of the good people of these colonies,” dissolve all political ties with Great Britain. Additionally, as all of us have recently been made aware, two hundred years ago the Preamble to the Constitution of the United States stated: “We the people of the United States ... do ordain and establish this Constitution
Today those two members of this Court who 18 months ago did not hesitate to unequivocally declare the unconstitutionality of any people’s legislation authorizing or creating a lottery enterprise in Idaho have made that forecast stand up. This is not unexpected, but it is not necessarily a correct resolution of the issue or one in keeping with the powerful language of art. 1, §2. Of a necessity that conclusion is achieved only by giving no recognition whatever to the constitutional right of the people to legislate, and that right is no more and no less an attribute of all political power having been vested in the people in the first instance. It was the people’s political power which made the initial determination that they the people would create a legislature — which would serve for the purpose of attending to most legislation.
To the uninformed, the opinion authored by Justice Bakes will read impressively, but the decision could more easily have been written to uphold the exercise of political power inherent in the people especially in one of the few instances when the people have chosen to exercise it as they were encouraged to do by legislative leadership. Simply put, “the people” when they choose to act where their representatives in the form of the legislature have not acted, are not a second legislature, but are the people.
Justice Bakes has correctly written that, “There is no constitutional history answering the question, and the history of the times is of little help.” (p. 667) Inappropriately and by non sequitur, however, he later declares that “Initiative legislation is on an equal footing with legislation enacted by the state and must comply with the same constitutional requirements as legislation enacted by the Idaho legislature” (p. 668), for which he cites Luker v. Curtis and State v. Finch. The Luker opinion simply upheld the right in the legislature to repeal an initiative measure which had passed — finding nothing to prevent the legislature from so doing. Almost all of what was written in that ease was obiter dicta. No one today would question the right of the 1988 legislature to have repealed the initiative. It did not do so, and that is not the issue presented to this Court at this time as was the situation in Luker. None of the case law cited in Luker, all from Wisconsin, South Dakota, Oregon, Oklahoma, Ohio, Missouri, Colorado, North Dakota, Kentucky, Washington, Arizona, or California has any bearing on the precise circumstances at hand, to wit, an Idaho constitution which is clear on its face and prohibits only the legislature, not the people, from enacting a lottery measure. The same can be said as to any of the authority cited by and relied upon in Justice Bakes’ opinion.
In so observing, it is not intended to give an impression of being overly critical of the Justice Bakes’ opinion. The problem encountered with it is simply that we can write on a clean slate, because he is correct in the one statement which I earlier herein so endorsed as accurate.
The people can legislature and they have done so. The plain and simple remedy for those who do not approve of this initiative legislation — if there need be a remedy — is for the legislature to repeal the people’s *410enactment. That would indeed cause the people to look to their legislators to propose a constitutional amendment for the people to ratify or reject.
The legislature has already attended to this, and today the Supreme Court simply joins the legislature in awaiting the outcome of the November ratification vote. Perhaps it is a course more attuned to am exercise of discretion than to courage born of conviction. The legislature, however, had no “case” presented to it. To the contrary, this Court does.
Another interesting facet of this controversy not discussed by Justice Bakes is that the carefully worded language of art. 3, § 1 reads, “The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature." (emphasis added). Thus, the Idaho Constitution unequivocally recognizes that the legislature and the people are distinct legislative entities, only one of which is endowed with inherent political power. Because the constitution prevents only the legislature from instituting a lottery, an initiative-sponsored lottery, as a result, cannot be said to offend art. 3, § 20.
Another missing facet is any discussion of the language in art. 1, § 20 which speaks to “lottery enterprises,” especially when considered with due regard to such being legislatively “authorized.” This is of paramount consideration to a proper resolution of the issue presented.
The 1911 Idaho legislature took what it believed to be action appropriate to the constitutional ban prohibiting the legislature from authorizing lottery enterprises. The legislators of those early days recognized the propensity of Idaho citizenry to take a chance, and acted to penalize “every person” who made a business (enterprise) out of operating lotteries. Section 1 R.S. 1911 defined a lottery not in terms as we know it.today, i.e., cash monies, but a “scheme for the disposal or distribution of property by chance ... whether called a lottery, raffle,2 or gift enterprise, or by whatever name the same be known.” I.C. § 18-4901. By R.S. 18-4902, -4903, -4904, -4905, -4906, and -4908, now I.C. §§ 18-4902 through -4908, all persons taking part in a lottery, including allowing the use of a vessel or building, were subject to prosecm tion for a misdemeanor,3 and property and monies so used were contraband subject to confiscation.
There cannot be honest doubt in any mind that the 1911 legislators understood very clearly that the 1889 founding fathers sought to preclude private lottery enterprises from being authorized, enfranchised, or in any way or by any name sanctioned by the legislature.
Justice Bakes in drafting his opinion apparently saw of little value, and hence did not mention, the historical background provided to us in the exceptionally well-researched brief of Mr. John Kurtz in the opening brief of appellants. Unable to improve upon his presentation, I simply utilize it:
However, this is a long history of lotteries in America. There were approximately 158 lotteries licensed before 1776, 132 of which benefited civic or other state purposes. Citizens such as John Hancock, Benjamin Franklin and George Washington managed lotteries for their communities thus making valuable contributions to their local economies. See Ezell, Fortune’s Merry Wheel, The Lottery in America (Harvard University Press 1960), p. 272. After the outbreak of the revolution, the Continental Congress led the way by establishing a lottery to finance the revolutionary war. For the next few decades lotteries remained an accepted way of raising money. Id. at p. 272.
*411In the early nineteenth century, various groups began questioning the use of lotteries. In response, many states passed constitutional provisions or legislation revoking lottery charters and monopolies that had previously been granted by the states. Id. at pp. 272-74. In a relatively short time only the gigantic Louisiana State Lottery dominated the scene. The Louisiana Lottery existed from 1864 through 1892. Id. at p. 274.
In 1889, when the Idaho State Constitutional Convention met, the Louisiana Lottery was in its final years. Id. pp. 242-45. There were repeated claims that the Louisiana Lottery Company, which had been given a monopoly charter to operate the lottery in the State of Louisiana, controlled every Louisiana legislature from 1868 to 1892. Id. at p. 245. Thus, it was with a recent background of charges of widespread corruption and bribes of the Louisiana legislature relating to the operation of the Louisiana lottery that the Idaho Constitutional Convention met in 1889.
Appellant’s Brief, p. 9. As I have taken pains to illustrate, the very language of art. 3. § 20 strongly suggests that the founding fathers had in mind only that the legislature should be precluded from authorizing the operation of lotteries by private enterprise. Students of history will remember that none of the founding fathers were native-born Idahoans, but rather a conglomeration of people who chose to leave their old homes in the midwestern, eastern, and southern states and selected the Territory of Idaho as their new homes and places of business or occupation. In those days there was no television, no radio, no telephones, and lots of time to visit —which would naturally be in large part centered around news from home via letters and newspapers.
I doubt very much that any one on the Court will seriously challenge Mr. Kurtz’ assertion that the members of the 1889 constitutional convention were well aware of the situation in Louisiana where the legislature had authorized private enterprise to operate a lottery and such private enterprise became a corrupt influence. Without question there could be found few aspiring entrepreneurs in Idaho who would not welcome the opportunity to so profitably engage themselves.
At the time Idaho embarked upon statehood there was no more thought about the state itself operating its own lottery than there was about the state going into the business of selling liquor by the drink. In time both have come to pass, and if there is anything in the constitution which prohibits the State from doing either, I would be pleased to have it brought to my attention.
It cannot seriously be said that the 1911 criminal statutes — specifically made applicable to “person” or persons, were meant to have any application other than to persons in unauthorized private enterprise. Enterprise is not now and was not in 1889 an unusual word. An enterpriser (perhaps a seldom used word) is better known by the appellation of entrepreneur. One dictionary definition of enterprise is business organization. Others include: a unit of economic organization; any systematic or purposeful activity. Webster’s Third New International Dictionary 757 (1967). The United States Congress has defined enterprise thusly:
“Enterprise” means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units.
29 U.S.C. § 203(r). The Supreme Court of the United States has also been heard:
The District Court correctly identified the three main elements of the statutory definition of ‘enterprise’: related activities, unified operation or common control, and common business purpose.
Brennan v. Arnheim & Neely Inc., 410 U.S. 512, 93 S.Ct. 1138, 35 L.Ed.2d 463 (1973).
As a mere citizen, or were I a legislator or a governor, I would be the first to cry out against any legislation, be it by the people, or by the legislature, which pur*412ported to authorize any private business venture or company to set up and operate a lottery in Idaho. As a jurist, I would oppose such as amounting to the very violation proscribed by our Idaho Constitution. If the 1989 Idaho legislature should decide to commemorate the one-hundredth anniversary of Idaho’s statehood and its Constitution by repealing the initiative lottery legislation, that will be no concern of mine.
The view which as I see it is entertained by Justice Bakes and the justices who join his opinion is that the people cannot do what the legislature cannot do. That notion has been addressed and sufficiently dispelled, but nonetheless four votes beats one even more soundly than three beats two.
Justice Bakes is also seemingly of the view that even the state legislature cannot create a state-owned and state-operated lottery. What I have written should serve to dispel that notion as well. It is not seen where Justice Bakes has attempted to comprehend what the founding fathers were stating by their very careful and select choice of words in light of those particular times and the experience of state legislatures which had authorized private lotteries.
. Had I joined the justices who declared the initiative unconstitutional before the issue was properly before us, such public prejudging would have required that I recuse myself from sitting on the instant case. So I read the Judicial Canons adopted by this Court.
. If given any notoriety this opinion may serve to save some good citizens from falling into the toils of the law by buying a chance on a quilt raffle.
. Beginning in 1972, the laws were amended so as to provide under I.C. § 18-4901 that the parimutuel system as used in racing shall not constitute a lottery, so long as it conforms with ch. 25, Title 54, Idaho Code. The first amendment put the legislative stamp of approval on betting on the horses; the second amendment in 1987 brought dog races into the ambit of not being a "by chance” disposal of cash receipts.