(dissenting) — I am unable to agree with the majority opinion for reasons stated below. Basically my disagreement is bottomed on the proposition that courts cannot supply omissions in legislation by reading into an act provisions which the legislature might have included therein but omitted. In this case, if the legislature had anticipated the possibility of a theft of the referendum petitions, it might have made some provision for dealing with the problem.
The opinion of those judges concurring in the result, as I read it, is in accord with my position, but agrees with the majority’s result only because it holds that their decision is sui generis and should not be considered necessarily as a judicial precedent. I am in disagreement with that holding for reasons stated later.
*71I heartily agree with the remarks of Mr. Justice Harlan (quoted in the concurring opinion), but believe that his ideas about the limitations of the judicial function apply to constitutional provisions as well as to statutes.7 Therefore, in the latter portion of this dissent, I discuss the impact of the provision in Art. 2, § 1 (as amended) which states:
“. . . This section is self-executing, but legislation may be enacted especially to facilitate its operation. ...” The majority hold that, since the theft of the petitions made compliance by the Secretary of State with the con*72stitutional and statutory provisions relating to the canvassing of the signatures on the referendum petitions impossible, this court can excuse the Secretary of State from compliance therewith and approve the issuance of his certificate of the measure (Referendum No. 34) placing it on the ballot at the next general election. This was done even though the affidavits filed on behalf of respondents conclusively prove that there was no canvass of the signatures on the petitions whatever.
In order to test the validity of the majority’s conclusion, I think that the vital provisions of the constitution and applicable statutes (most of which are quoted in the majority opinion) should be pinpointed.
Amendment 7 to the state constitution providing for the second power reserved by the people (the referendum) contains this sentence:
“. . . This section [Art. 2, § 1, subd. (d) ] is self-executing, but legislation may be enacted especially to facilitate its operation. ...”
Amendment 7 was adopted by the people in 1912, and the legislature, in 1913, in accordance with the above-quoted authorization, enacted what is now RCW chapter 29.79. Later the electorate, through the approval of an initiative measure, enacted the permanent registration act (RCW 29.07).
RCW 29.79.200 makes it the duty of the Secretary of State to forthwith canvass and count the names of the registered voters on initiative petitions filed with him.
RCW 29.79.220 makes it his duty, whenever a referendum or an initiative petition is filed with him, to canvass the names on the petition within 60 days, and states that “like proceedings shall and may be had thereon as provided in” RCW 29.79.200 and 29.79.210.
RCW 29.79.230 provides:
“If a referendum or initiative petition for submission of a measure to the people is found sufficient, the secretary of state shall . . . certify to each county auditor ...” that it shall be voted upon by the people at the next general election.
*73The words “found sufficient” in the section last referred to must be construed in connection with the provisions in the permanent registration act (RCW 29.07.090 and .130), which read as follows:
“At the time of registering any voter, each registration officer shall require him to sign his name upon a third card upon which the registrar has entered his surname followed by his given name or names and the name of the county and city or town, with post office and street address, and the name or number of the precinct, in which the voter is registered.” RCW 29.07.090.
“The third cards shall be kept on file in the office of the secretary of state in such manner as will be most convenient for, and for the sole purpose of, checking initiative and referendum petitions and mailing pamphlets required for constitutional amendments and by the initiative and referendum procedure. They shall not be open to public inspection or be used for any other purpose.” RCW 29.07.130.
These two acts (RCW 29.79 and 29.07) are in pari materia and were enacted pursuant to Art. 2, § 1, subd. (d) of the constitution “to facilitate its operation.”
In State ex rel. Evich v. Superior Court, 188 Wash. 19, 61 P. (2d) 143 (1936), we discussed the effect of the permanent registration act, saying:
“By the terms of § 13 of the permanent registration law adopted by the people at the November election in 1932 (chapter 1, Laws of 1933, p. 12, § 13), the voter, when registering with the local registration officer, is required to sign his name upon a card containing information necessary for his identification, and it is made the duty of the registrar of voters to transmit these cards to the secretary of state for filing in his office, together with a certificate that the cards so transmitted are the original cards filed by the voters whose names appear thereon, and that such voters are duly registered in the precincts and from the addresses shown. The cards provided for in this section
“ ‘. . . shall be kept on file in the office of the secretary of state, in such manner as will be most convenient for, and for the sole purpose of, checking initiative and referendum petitions and mailing pamphlets containing constitutional amendments and initiative and referendum measures and arguments for and against the same, and shall not be open to public inspection, or used for any other *74purposes.’ Rem. Rev. Stat. (Sup.), § 5114-13 [P. C. § 2321-23].”
The only way that the Secretary of State can determine whether a referendum petition contains the number of valid signatures of legal voters equal to 4 per centum of the number of voters registered and voting for the office of Governor at the last preceding regular gubernatorial election (as required by amendment 30) is to compare the signatures on the petition with those on the voters’ registration cards on file in the secretary’s office. Again, reference is made to the Evich case, where this court said, regarding the duties of the secretary:
“It will be noted, by reference to the certificate of the secretary of state, that he reported the number of signers from rural precincts that had been certified by the various registration officers, provision for such certification being then in force.
“Now, inquiring into the duty of the secretary of state under Rem. Rev. Stat. (Sup.), § 5411 [P. C. § 2764], we see that he is to ‘proceed to canvass and count the names of legal voters ... on such petition,’ and if, at the conclusion of the canvass and count,
“ ‘. . . it shall appear that such petition bears the requisite number of names of legal voters, the secretary of state shall transmit a certified copy of such proposed measure to the legislature at the opening of its session together with a certificate of the facts relating to the filing of such petition and canvass thereof.’
“He is to ascertain the number of names of legal voters on the petition, and the standard manifestly is by comparison with the registration cards in his office certified to him by the local registration officers, in accordance with the provisions of § 13 of the permanent registration act, providing that these registration cards are deposited with him for the sole purpose of
“ ‘. . . checking initiative and referendum petitions, and mailing pamphlets containing constitutional amendments, initiative and referendum measures,’ etc.
“That the secretary of state must compare the signatures on the petition, is further evidenced by Rem. Rev. Stat. (Sup.), § 5412 [P. C. § 2765], quoted above, requiring him to keep a record of all names appearing on the petition of persons not registered voters and report them to the prosecuting attorneys.
*75“It is obvious that the respondent’s certificate to the legislature did not comply with the requirement of the statute, nor, for that matter, with the provision of the constitution, which, while embodying no specific method for the ascertainment of the fact, requires signatures of the requisite number of legal voters upon the petition. Indeed, the certificate negatives any suggestion of full compliance. ...”
In the present case, the secretary counted only the total signatures from each county and added them together, which made a grand total of 82,955 signatures on the petitions, and advised the proponent by letter that canvass of the signatures would begin on July 1, 1963. (He also corrected 45 instances where a husband or wife had signed as Mr. and Mrs.) In his affidavit, the secretary stated that it was impossible for him to canvass the names on the petition forms because of the theft.
June 24, 1963, the theft of the petitions was discovered, and June 26, 1963, the Secretary of State certified the measure to the county auditors to be placed on the ballot for the state general election to be held November 3, 1964.
In so doing, the evidence showed that the secretary, in certifying the measure without a canvass of the signatures, took into consideration three factors:
(1) The inference that the 82,955 signatures on the petitions are valid is drawn from the fact that it is a criminal offense to sign such a petition with a false name or residence address, or when not a legal voter, or to sign more than one petition sheet.
In my opinion, if the secretary’s execution of his certificate is to be based on this inference, there would be no need for the legislature to require a canvass at all. Without comparing the signatures on the petitions with the signatures on the voters’ registration cards, the secretary could simply make his certificate based on the assumption that a substantial number of the signers would not violate the applicable statutes because of fear of criminal prosecution.8
*76Furthermore, the evidence shows that in one instance in the past 20.21 per cent of the signatures were rejected by the secretary for failure to comply with these statutes. Apparently, in that instance a substantial number of signers were not deterred from violating the law by the warning of criminal prosecution printed on the petitions.
(2) The second factor was the inference which the secretary deduced from his records in his office relating to previous referendum petitions. These show that the highest rejection rate was 20.21 per cent, but that, during the last 14 years, the average rejection rate has been 7.71 per cent of the signatures.
Using the vernacular, the secretary estimated, based on past experience, that “the chances were” that the present petitions contained sufficient valid signatures (48,630 were needed), because it was unlikely that in this case more than 41.37 per cent were invalid. Unless this percentage were exceeded, the petition would have been valid if this fact had been legally determined as the result of a canvass.
If such “guessing” were permissible, this might be a reasonable deduction, but, under the constitution and the statutes authorized thereby, the secretary’s certificate cannot rest upon speculation, conjecture, or prognostications, but must be based on findings made by the secretary after a canvass of the signatures on the petitions.
(3) That no irregularities were discovered during the processing of the petitions is the last factor considered by the secretary. This fact is not surprising because the limited procedure which took place (as described above) would not disclose any irregularities except, for example, “Mr. and Mrs.” signatures. The canvass was to begin on July 1 and, until that was completed, no one knew how many signatures would be found to be invalid.
The majority holds that the foregoing factors, when considered altogether, constituted sufficient evidence to justify the secretary, without canvassing the signatures on the petitions, to make his certificate which provides for the placement of referendum No. 34 on the ballot for the 1964 general election.
*77I disagree for the following reasons:
1. There admittedly has been a failure to comply with the mandatory legislation which the constitution authorized the legislature to enact “to facilitate” the operation of the Seventh Amendment (which amended Const. Art. 2, § 1). This amendment provided that this section is self-executing, but permitted legislation to be enacted especially to facilitate its operation.
Upon the adoption of the Seventh Amendment in 1912, and prior to the enactment of facilitating legislation, there was no prescribed manner in which any official was required to determine whether a particular referendum petition was signed by the required percentage of legal voters, as prescribed by that amendment.
This void was filled by the legislature a few months later, acting pursuant to the authorization contained in the amendment to enact facilitating legislation. This provision is contained in RCW chapter 29.79, which requires that the Secretary of State shall canvass the names on the petition and, if found sufficient, he shall certify, etc.
It seems plain to me, on the face of the record in this case, that the secretary has admittedly failed (through no fault on his part) to canvass the signatures on the petition prior to making his certificate.
The majority state that there was sufficient evidence before the secretary to justify his certifying the referendum for the ballot because of the three factors (described above) upon which he relied. None of these indicated in the slightest degree, except by speculation, whether the required number of the 48,630 signatures on the petitions before him were those of registered voters. The facilitating legislation prescribes the manner in which this vital fact shall be determined by the secretary — the only legal method is by comparison of signatures.
The majority state that there is a hiatus in the statute because it does not provide what shall be done if the petitions are stolen before being canvassed. This is true. Neither is it provided in the statute what should be done if petitions are destroyed by fire, by an earthquake (such as we had *78in April, 1949), by the blast of an atomic bomb, or by other act of God or the public enemy. All the statute states in facilitating the constitutional provision reserving to the people the right of referendum is that the signatures shall be canvassed before the measure shall be certified for the ballot.
It is further stated by the majority that the people’s right of referendum reserved by the constitution should be liberally construed so that this right may be facilitated and not hampered by technical statutes or technical construction thereof. My answer is that the constitution gave the legislature the authority to provide how this right might be facilitated and the legislature has done so by saying to the Secretary of State: “You canvass the voters’ signatures on the petition before causing the measure to be placed on the ballot.”
I see nothing technical about this procedure. In my opinion, the statute requires no construction (technical or otherwise) . Its wording is free from ambiguity. It is the majority that is seeking to change the mandatory statute’s clear meaning by permitting the substitution of guess work for precision. The fact that the legislature did not anticipate the theft of the petitions and provide a new procedure in such case does not, in my opinion, justify a court in supplying, or condoning the use of, a substitute method to fill in the hiatus.
The majority attempt to distinguish the Evich case (quoted above) because in that case the failure of the secretary to canvass the signatures was not made impossible by the act of a third party, while in the present case it was so made impossible and the legislature did not specifically provide any procedure to be followed in such event.
I do not agree that this is a valid distinction. Since the constitutional amendment and the mandatory statutes enacted to implement and facilitate its operation provided for canvassing the signatures in all cases without exception, neither the secretary nor the courts may read into the statutes what they think the legislature might have provided *79if it had had the present situation in mind when it was legislating on this subject.
In my opinion, there is no basis for holding, in effect, that there is or can be substantial compliance with a mandatory provision of the constitution or of the statutes enacted to facilitate the operation thereof. Such provisions must be complied with fully.
The rule applicable here is well stated by the Supreme Court of North Carolina in State v. Patterson, 98 N. C. 660, 4 S. E. 350 (1887), as follows, at page 662:
“More particularly, for the present purpose, when the Constitution prescribes and directs in terms, or by necessary implication, that a particular power shall be exercised in a specified way, or a particular thing shall be done by a particular coordinate branch of government — as the Legislature — or by a particular officer or class of officers, and prescribes the way and manner of doing it — such direction cannot be disregarded — a due observance of it is essential, because the Constitution so provides, and its provisions are not in vain or of trifling moment. It is not of the nature of constitutions of government to provide non-essentials— useless unimportant details — such as may be disregarded and dispensed with. As we have said, they are organic— made upon solemn consideration by the sovereign authority, and contain general, essential provisions — details are avoided, unless deemed important — essential. Non-essential details are left to the discretion of those who exercise and administer the powers of government. If this were not so, why prescribe the way and manner? Why not leave these things to convenience and the authority charged with the exercise of the power? Why direct them? Why restrict them? And if such directions may be disregarded, ignored, suspended in some respects, then to what extent and in what respects? If one co-ordinate branch of the government, or one class of officers, may do so, why may not another, and all, as to duties devolved upon them respectively directly by the Constitution?
“The answer to these and like questions must be, that requirements of the Constitution shall prevail and be observed; and when it prescribes that a particular act or thing shall be done in a way and manner specified, such direction must be treated as a command, and an observance of it essential to the effectiveness of the act or thing to be done. *80Such act cannot be complete — such thing is not effectual until done in the way and manner so prescribed.”
It must be remembered that in this case the people themselves adopted the Seventh Amendment and thereby gave to the legislature the authority to facilitate its operation by legislation specially enacted. The legislature has done so in plain language. In my opinion, no court can, in effect, amend or nullify these statutory provisions solely because an unanticipated situation has arisen.
Finally, in the majority opinion it is stated, in effect, that, since the legislature failed to provide any guide as to the secretary’s duties in a case where the petitions have been stolen, and since Amendment 7 sets forth no procedure for ascertaining whether the required percentage of registered voters have signed the petition, the court should consider the provision in Amendment 7, stating, “This section is self-executing ...”
The majority then states:
“We have no doubt that the Secretary of State would consider it his duty to canvass the signatures in every case, even though no statute required it, but in this case he was called upon to make a decision without the benefit of the exact knowledge which a canvass would reveal. If the correctness of the decision which he made were in any doubt, or if there were a suggestion of fraud or mistake on the part of the proponents, we would hesitate to uphold that decision. But we think, in view of the fact that the evidence supporting the decision was undisputed and overwhelming, and there is no element of fraud or mistake involved, the intent and purpose of the framers of the constitution, in reserving the power of referendum, can be given effect only if his decision is sustained.”
(How the evidence supporting the secretary’s certificate can be described as undisputed and overwhelming when, as pointed out above, the mandatory provisions of the facilitating statutes were admittedly not complied with, I am Unable to comprehend.)
The opinion of those judges who concur in the result of the majority expresses disagreement with the foregoing *81quotation. Their concurrence in the result is based on the view that:
“The efficacy of Amendment 7 does not depend upon its implementation by the legislature. As the trial court said:
‘The statutes are effective only insofar as they facilitate the action of the self-executing constitutional provisions.’
“The factual pattern of the instant case is bizarre and fantastic. We are in the same position this court would have been in had the legislature refused to pass implementing legislation.”
This statement raises the important question of the proper interpretation of the self-executing clause in the constitution as applied to the facts of this case.
For purposes of discussion of the constitutional question thus raised, I will assume that there is no legislation which is applicable to the problem before us.
I can find nothing in the words “This section is self-executing” which justifies ignoring the remainder of the constitutional provisions whereby the people reserved to themselves the power of referendum.
Perhaps a review of the constitutional history on this subject may be helpful. From 1889, when the constitution was adopted, until 1912, the legislative authority of the state of Washington was vested exclusively in the legislature.
In 1912, Amendment 7 was adopted. This amendment continued the legislative authority in the legislature, but added the provision:
“ . . . but the people reserve to themselves the power to propose bills, . . . [this refers to the power of initiative with which we are not here concerned] and also reserve power, at their own option, to approve or reject at the polls any act, item, section or part of any bill, act or law passed by the legislature.”
The question then arises, how, in the absence of applicable legislation, do the people go about exercising this reserved power of referendum? The answer is provided in Amendment 7, wherein it is said “either by petition signed by the *82required percentage of the legal voters” or by the legislature.
The question then is: What is the percentage of legal voters who must sign a petition before the people may exercise the reserved power of referendum with respect to any act of the legislature? In 1912, the answer was:
“Six per centum, but in no case more than thirty thousand, of the legal voters shall be required to sign and make a valid referendum petition.”
In 1956, the required number was changed as follows:
“Hereafter, the number of valid signatures of legal voters required upon a petition for an initiative measure shall be equal to eight per centum of the number of voters registered and voting for the office of governor at the last preceding regular gubernatorial election. Hereafter, the number of valid signatures of legal voters required upon a petition for a referendum of an act of the legislature or any part thereof, shall be equal to four per centum of the number of voters registered and voting for the office of governor at the last preceding regular gubernatorial election. These provisions supersede the requirements specified in section 1 of this article as amended by the seventh amendment to the Constitution of this state.” (Amendment 30) (Italics mine.)
Thus the specific conditions required by the constitution which must be complied with before the people may exercise the reserved power of referendum may be summarized as follows:
A petition must be signed by legal voters equal in number to 4 per cent of the registered voters in the state who voted for the office of governor at the last preceding election. In the present case, the required number of legal voters is 48,630.
The problem then is: In the assumed absence of any legislation, how is this vital question determined? The self-executing provision in Amendment 7 does not specify who shall determine this vital question of fact, but the permanent voters’ registration act (RCW 29.07.130), enacted in 1933, provides a method of ascertaining whether the petition contains the requisite number of valid signatures of legal *83voters. In the absence of a constitutional designation of a state officer to perform this vital duty, this vital factual issue could be determined by a court of competent jurisdiction. In any event, the underscored portion of Amendment 30 (quoted above) cannot be completely ignored, as has been done in this case.
It seems clear to me that the words in the constitution stating that “This section is self-executing” do not mean that the signatures on a referendum petition are self-canvassing. The opinions of the majority and of the judges concurring in the result do not take notice of the vital constitutional limitation which the people themselves placed in the Seventh Amendment as a condition precedent to the exercise of the reserved power of referendum, to wit, that the petition must contain “the number of valid signatures of legal voters” (italics mine) equal to 4 per centum of the number of registered voters who voted for the office of governor at the last preceding election.
Without this vital fact being determined (i.e. whether the petition contains at least 48,630 valid signatures of legal voters), the whole proceeding is void. Since the people in their amendment to the constitution have said that the reserved power of referendum may be exercised only upon this express condition, and, since this condition has not been complied with in the present case, there can be no submission of Laws of 1963, chapter 37 (Referendum Measure No. 34) to a vote of the people.
It is stated that the will of the people should not be thwarted by the act of a felon, but I regard it a much more serious thing for a court to waive compliance with a mandatory9 constitutional condition precedent to the exercise of the reserved power of referendum.
If the procedure followed in this case is approved, it means that, hereafter, whenever petitions are lost, destroyed, or stolen under any circumstances, any proponent who has filed a referendum petition signed by the requisite number of persons (whether or not it contains the valid *84signatures of the required number of legal voters) can cause the referendum measure involved to be submitted to the voters at the next election without a single signature thereon having been compared with those on the registration books. Speculation can be substituted for certainty, and the requirement for canvassing the signatures on the petition can be ignored entirely. As I see it, if these statutory and/or constitutional safeguards are to be ignored, there is as much danger that a petition having less than the requisite number of valid signatures of legal voters will in the future be submitted to the electorate as that valid petitions will fail to attain their objective.
The constitution means the same thing regardless of hardship, inconvenience, or even impossibility of compliance with it, and no court can excuse noncompliance with its mandatory provisions.
In State ex rel. Lemon v. Langlie, 45 Wn. (2d) 82, 273 P. (2d) 464 (1954), we quoted with approval the following statement from 11 Am. Jur. 651, Constitutional Law, § 44, regarding the function of a state constitution:
“ ‘A written Constitution is not only the direct and basic expression of the sovereign will, but is the absolute rule of action and decision for all departments and offices of government with respect to all matters covered by it and must control as it is -written until it shall be changed by the authority that established it. No function of government can be discharged in disregard of, or in opposition to, the fundamental law. The state Constitution is the mandate of a sovereign people to its servants and representatives. No one of them has a right to ignore or disregard its mandates; and the legislature, the executive officers, and the judiciary cannot lawfully act beyond the limitations of such Constitution.’ ” (p. 109)
With regard to the statement in the majority opinion that the court cannot assume that a theft of the petitions will ever occur again, I think that the court should not be led into upholding a violation of either the applicable statutory or the constitutional provisions on that assumption. In the Lemon case, supra, we quoted from State ex rel. *85Banker v. Clausen, 142 Wash. 450, 253 Pac. 805 (1927), in which we quoted the following statement from 6 R.C.L. 46:
“'“A cardinal rule in dealing with constitutions is that they should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed as to make a different rule seem desirable. In accordance with this principle, a court should not allow the facts of the particular case to influence its decision on a question of constitutional law, nor should a statute be construed as constitutional in some cases and unconstitutional in others involving like circumstances and conditions. Furthermore, constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative action; and therefore the courts should never allow a change in public sentiment to influence them in giving a construction to a written constitution not warranted by the intention of its founders.”’ (Italics ours.)”
For the reasons stated, I would reverse the judgment of the trial court with directions to dismiss the summary judgment entered in favor of respondent and to grant petitioner’s motion for summary judgment and accord him the relief prayed for in his complaint.
May 27, 1964. Petition for rehearing denied.
Since the foregoing sentence was written, Mr. Justice Harlan has filed a dissenting opinion in the case of Wesberry v. Sanders, 376 U. S. 1, 11 L. Ed. (2d) 481, 84 S. Ct. 526 (decided February 17, 1964) in which the majority held that the present apportionment of members of the House of Representatives was violative of the United States Constitution. The concluding three paragraphs of Justice Harlan’s dissent are, in my opinion, applicable to the problem now before this court. I quote them in full:
“Today’s decision has portents for our society and the Court itself which should be recognized. This is not a case in which the Court vindicates the kind of individual rights that are assured by the Due Process Clause of the Fourteenth Amendment, whose ‘vague contours,’ Rochin v. California, 342 U. S. 165, 170, of course leave much room for constitutional developments necessitated by changing conditions in a dynamic society. Nor is this a case in which an emergent set of facts requires the Court to frame new principles to protect recognized constitutional rights. The claim for judicial relief in this case strikes at one of the fundamental doctrines of our system of government, the separation of powers. In upholding that claim, the Court attempts to effect reforms in a field which the Constitution, as plainly as can be, has committed exclusively to the political process.
“This Court, no less than all other branches of the Government, is bound by the Constitution. The Constitution does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short. The stability of this institution ultimately depends not only upon its being alert to keep the other branches of government within constitutional bounds but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.
“What is done today saps the political process. The promise of judicial intervention in matters of this sort cannot but encourage popular inertia in efforts for political reform through the political process, with the inevitable result that the process is itself weakened. By yielding to the demand for a judicial remedy in this instance, the Court in my view does a disservice both to itself and to the broader values of our system of government.”
State v. Patric, 63 Wn. (2d) 821, 389 P. (2d) 292 (1963), is the only case that has come before this court which involved an appeal from a judgment and sentence based on an alleged violation of RCW 29.79.440-470.
All provisions of our state constitution are mandatory unless by express words they are declared to be otherwise. Art. 1, § 29.