dissenting from order denying writ of prohibition:
The majority of the Court, apparently deeming the petition in this case to be premature because it would be interfering with the legislative process, refuses to adjudicate the issue of the unconstitutionality of the lottery initiative. The proposed initiative would submit to the vote of the people an act establishing a state-run lottery in Idaho. While I, too, am hesitant to interfere in the “legislative process,” there is authority in Idaho for this Court to grant the relief requested by the petitioner and, accordingly, I would grant the petition and reach the merits raised by the petition. When the merits are reached, it is unquestionably clear that the proposed initiative petition violates Art. 3, § 20, of the Idaho Constitution, which prohibits the legalization of lotteries.1
I
This Court has historically recognized the mandate of Art. 2, § 1, of the Idaho Constitution which separates the powers of state government into “three distinct departments, the legislative, executive and judicial,” and the explicit command that “[n]o person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this Constitution expressly directed or permitted.” Because of that clear constitutional mandate, this Court has generally refused to interfere in, or dictate, how the legislative branch of government conducts its business. Beitelspacher v. Risch, 105 Idaho 605, 671 P.2d 1068 (1983). Nor have we ever attempted to rule in advance of passage of legislation on the interpretation, legality, or constitutionality of legislation proposed, but not yet passed. Such would be, in effect, to give an advisory opinion.
Initiatives proposed pursuant to Art. 3, § 1, of the Idaho Constitution, and I.C. §§ 34-1801 et seq. are a part of the legislative process. Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943). As such, initiatives are ordinarily entitled to the same constitutional deference as is the legislative process conducted by the legislature. Initiative legislation has the same force and effect as that enacted by both houses of the Legislature and approved by the governor, and must not violate any constitutional prohibition of the United States or of the State of Idaho. State v. Finch, 79 Idaho 275, 315 P.2d 529 (1957) (initiatives are subject to the same constitutional limitations as legislation passed by the legislature).
However, there are some differences in the two legislative processes. While a bill is pending in the legislature, it is always subject to future amendment which could eliminate unconstitutional provisions. However, an initiative petition, once circulated, cannot be amended and must be submitted in the exact form as circulated. Accordingly, there is no means for correcting or eliminating unconstitutional provisions in an initiative proposal as there is with pending legislation before the legislature. Secondly, the initiative process, by comparison to the legislative process, is extremely expensive and time-consuming. While there is little drain on the public treasury for processing a single act through the state legislature to a conclusion, the statewide initiative process does provide a substantial drain both upon the state treasury and the parties concerned, thereby justifying, from an economic point of view, a declaratory judicial review of the legality of the initiative petition prior to a vote by the people. Thirdly, and perhaps most importantly, the initiative process more directly involves the citizenry in the democratic process and, as a result, raises the level of the expectation of the citizenry that their vote on the initiative petition will be meaningful. It would tend to frustrate public expectations and to discourage participation in this unusual application of the democratic process if the public had submitted to it initia*509tive proposals which were obviously and unequivocally void, being in direct violation of the Idaho Constitution.
For the foregoing reasons, this Court has viewed legislating, by the initiative process, to be different from legislating by legislative bodies. While we have been loathe to involve ourselves with the. legislative bodies as they deliberate and proceed with the legislative process, we have intervened to prevent obviously illegal initiatives from being submitted to the voters. In the recent case of Gumprecht v. City of Coeur d’Alene, 104 Idaho 615, 661 P.2d 1214 (1983), this court stated:
The question presented in this case, whether the election itself is proper, is similar to the question presented in Perrault [v. Robinson, 29 Idaho 267, 158 P. 1074 (1916)]. If an initiative election is an improper means of adopting or amending zoning ordinances in Idaho, then the city council of Coeur d’Alene would be acting in excess of its jurisdiction in holding the election. We hold that review of a petition for writ of prohibition is proper where, as in this case, the resolution of an important undecided question of law will necessarily decide the propriety of the election. 104 Idaho at 617, 661 P.2d at 1216 (emphasis added).
See also, In re Petition of Idaho State Federation of Labor, 75 Idaho 367, 272 P.2d 707 (1954).
Other states, under similarly unusual circumstances, have intervened in the initiative process to rule upon the validity of such initiatives. In Legislature of California v. Deukmejian, 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17 (1983), the court stated:
We conclude, based upon the principle that in the enactment of statutes the constitutional limitations that bind the Legislature apply with equal force to the people’s reserved power of initiative, that [an initiative petition seeking to circumvent the constitutional provision limiting legislative redistricting to once every ten years] cannot be justified. Therefore, the proposed initiative is constitutionally impermissible and may not be submitted to the voters.
In view of the important policy questions involved, and because of the obvious unconstitutionality of the Idaho lottery initiative, we should decide this case on the merits at this time.
II
When the merits of the Associated Taxpayers’ petition for writ of prohibition are reached, it is clear that the proposed lottery initiative violates Art. 3, § 20, of the Idaho Constitution and is thus void.
First, it must be pointed out that all parties to this proceeding have agreed that the Idaho Constitution cannot be amended by initiative. The procedure for amending the Constitution is set out in Art. 20, §§ 1 and 3. That process requires both houses of the legislature to pass a proposed amendment by two-thirds of the vote of the members of both houses, and the matter then to be submitted to the electorate for approval by a majority of the voters at the next general election. The 1912 amendment to Art. 3, § 1, which allowed the people to exercise the right of initiative and referendum “under such conditions and in such manner as may be provided by acts of the legislature,” did not impliedly amend Art. 20 of the Constitution and change the method for changing the Constitution. The initiative power under Art. 3, § 1, as amended, applies only to proposing and reviewing legislation, and not to amending the Constitution. All parties have thus agreed, and therefore it is important initially to establish, that no party contends this initiative can amend Art. 3, § 20, of the Idaho Constitution regarding the prohibition against the legislature authorizing lotteries.
The legal issue which this petition for writ of prohibition raises, then, is whether or not the prohibition contained in Art. 3, § 20, of the Constitution, which provides that “the legislature shall not authorize any lottery ...,” is limited to legislation *510passed by the Idaho legislature, and does not apply to initiative legislation proposed by the people. Those supporting the initiative argue that the Art. 3, § 20, prohibition is limited to the Idaho state legislature, and not to the people themselves by the initiative process.
However, our cases are clear and unequivocal that the initiative process is merely another manner of the execution of the legislative authority granted in Art. 3 of the Idaho Constitution, and that all limitations and prohibitions on the exercise of that legislative power by the legislature are equally applicable to legislation proposed by the initiative process. State v. Finch, supra.
The initiative process is just another way of legislating, and that legislation must comply with the same constitutional requirements as would legislation enacted by the Idaho legislature.
The question then becomes whether the Idaho legislature could enact statutes similar to those proposed in the lottery initiative. The answer to that question is also clear and unequivocal. In State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (1953), this Court held that the licensing of lotteries by government, at whatever level, violates the provisions of Art. 3, § 20, of the Idaho Constitution. The Court stated:
“All the people of the state are bound by constitutional limitations, and Art. 3, § 20, of the Constitution is, with the other provisions, the supreme law of the land.” 74 Idaho at 524, 265 P.2d at 339.
The Court held that the ordinance of the Village of Garden City which licensed lotteries was invalid as violating Art. 3, § 20. “An unconstitutional act is not a law.” 74 Idaho at 524, 265 P.2d at 339.
Accordingly, it is unequivocally clear that if the initiative authorizing a lottery enterprise and licensing it by the State of Idaho is approved by the voters at the general election this November, it will be unconstitutional and void. Because of the extreme importance of this issue to the citizens of the State of Idaho, we should rule upon the merits of this case now. Gumprecht v. City of Coeur d’Alene, supra; In re Petition of Idaho State Federation of Labor, supra. Both the public treasury and public expectations deserve our immediate action on this important issue.
Ill
This case is ripe for decision today. If this Court refuses to act, our inaction may well be misconstrued by others as suggesting that the initiative process can be utilized to circumvent other sections of the Idaho Constitution which prohibit the “legislature” from passing certain acts. For example, the Constitution prohibits the legislature from passing local or special laws in Art. 3, § 19.2 See also Art. 7, § 6; Art. *5117, § 11; Art. 3, § 1; Art. 9, § 5; and Art. 11, § 12. If the people, by a simple majority, can vote by initiative to do all of the acts which the legislature is prevented from doing, then many of the constitutional safeguards contained in the Idaho Constitution will become meaningless.
We, by our failure to act today, are building and fueling the expectations of the people that, when they go to the polls, they are participating in a lawful, constitutional and meaningful election. They are not. The lottery initiative violates Art. 3, § 20, of the Idaho Constitution. It is clearly an unconstitutional act,3 and “an unconstitutional act is not a law.” State v. Village of Garden City, supra at 524, 265 P.2d at 339.
We should issue the writ of prohibition and make it permanent.
BAKES, J., concurs.. "§ 20. Lotteries not to be authorized. — The legislature shall not authorize any lottery or gift enterprise under any pretense or for any purpose whatever.”
. § 19. Local and special laws prohibited.— The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say:
Regulating the jurisdiction and duties of justices of the peace and constables.
For the punishment of crimes and misdemeanors.
Regulating the practice of the courts of justice. Providing for a change of venue in civil or criminal actions.
Granting divorces.
Changing the names of persons or places.
Authorizing the laying out, opening, altering, maintaining, working on, or vacating roads, highways, streets, alleys, town plats, parks, cemeteries, or any public grounds not owned by the state.
Summoning and impaneling grand and trial juries, and providing for their compensation.
Regulating county and township business, or the election of county and township officers.
For the assessment and collection of taxes.
Providing for and conducting elections, or designating the place of voting.
Affecting estates of deceased persons, minors, or other persons under legal disabilities.
Extending the time for collection of taxes.
Giving effect to invalid deeds, leases or other instruments.
Refunding money paid into the state treasury.
Releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any person or corporation in this state, or any municipal corporation therein.
Declaring any person of age, or authorizing any minor to sell, lease, or incumber his or her property.
Legalizing as against the state the unauthorized or invalid act of any officer.
*511Exempting property from taxation.
Changing county seats, unless the law authorizing the change shall require that two-thirds (2/3) of the legal votes cast at a general or special election shall designate the place to which the county seat shall be changed; provided, that the power to pass a special law shall cease as long as the legislature shall provide for such change by general law; provided further, that no special law shall be passed for any one county oftener than once in six (6) years. Restoring to citizenship persons convicted of infamous crimes.
Regulating the interest on money.
Authorizing the creation, extension or impairing of liens.
Chartering or licensing ferries, bridges or roads.
Remitting fines, penalties or forfeitures.
Providing for the management of common schools.
Creating offices or prescribing the powers and duties of officers in counties, cities, townships, election districts, or school districts, except as in this constitution otherwise provided.
Changing the law of descent or succession.
Authorizing the adoption or legitimization of children.
For limitation of civil or criminal actions.
Creating any corporation.
Creating, increasing or decreasing fees, percentages, or allowances of public officers during the term for which said officers are elected or appointed.
. It is to be noted that the special concurring opinion of Chief Justice Donaldson, agrees with this portion of the opinion, and states: “If the lottery passes, then [the] legislators ... can act in a constitutional manner to amend the constitution____" Thus, the votes of three members of this court are on record to the effect the lottery initiative, if passed, will be unconstitutional.