(dissenting).
I am unable to accept the conclusion of the majority opinion that the provisions of Idaho Const, art. 20, § 3 do not provide the exclusive method for the legislature to submit to the electors the question of a constitutional revision. Idaho Const, art. 20, § 1 provides one of the methods tc amend the constitution, and § 3 provides for an alternative method for amendment, or revision, i. e., by calling a constitutional convention. It is my conclusion that this article of the constitution limits the legislature to the procedures provided therein for either amendment or revision.
This court in Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083 (1957), held that the Idaho constitution is a limitation and not a grant of authority to the legislature. Based on this opinion, appellant contends that since the constitution does not specifically prohibit the proposed method of revision, the legislature can properly adopt procedures as provided by Senate Joint Resolution 122 of the second session of the Fortieth Legislature (S.L.1970, p. 739). It is my understanding that the authority of the legislature is unrestricted (except as specifically limited by the constitution) in the area of legislative action; that is, the legislature has authority to make, alter and repeal any laws it desires, except as is specifically prohibited by the constitution. However, the area of constitutional amendment or revision is not an ordinary legislative action, but is an extraordinary action provided for by our constitution and one wherein the legislature is not free to act on its own initiative. Thus, it is my opinion that the rule of Eberle v. Nielson, supra, is not applicable in this case dealing with extraordinary powers of the legislature. This point is well articulated in the case of Board of Supervisors of Elections for Anne Arundel County v. Attorney General, 246 Md. 417, 229 A.2d 388 (1967), wherein the court stated:
“Commentators, lay and judicial concur almost unanimously in the view that the general power of a state legislature to make, alter and repeal laws, pursuant to the constitution by which the people created the legislature, does not include the power or the right to make or remake the fundamental law, the constitution. A state constitution may aptly be likened to a legislative act enacted directly by the people themselves in their sovereign capacity as a political entity (that is, by the voters, for ‘the original power of the people, in their aggregate political capacity, is delegated in the form of suffrage to such persons as they deem proper,’ Anderson v. Baker, 23 Md. 531, 619), and therefore is the fundamental, extraordinary act by which the people establish the structure and mechanism of their government. Cooley, Constitutional Limitations (8th Ed.), p. 355; Jameson, Constitutional Conventions, pp. 84-86, 422 and 586; Hoar, Constitutional Conventions, pp. 80-82; 16 Am.Jur.2d, Constitutional Law § 26; [citations]. Essentially, a constitution is fundamental legislation directly by the people acting politically in their sovereign capacity, while a law is a rule of conduct prescribed by the legislative agents of the people under and subject to the delegated limitations of the previously ordained superior legislation, the Constitution.” 229 A.2d at 394.
This extraordinary authority of a legislature to deal with amendment or revision of the constitution was considered by this court in Holmberg v. Jones, 7 Idaho 752, 65 P. 563 (1901).
*826“The first question presented is fraught with much embarrassment. The court is asked to hold that what is claimed to be a part of the constitution is unconstitutional, — a very delicate question, to say the least. It will be seen, • from a reading of the provisions of section 1, art. 20, quoted above, that the' power to propose amendments has been granted by the people to the legislature. While the power of the legislature to enact laws is inherent, so far as legislative enactment is concerned, yet the power to propose amendments to the constitution is not inherent. The power to make constitutions and to amend them is inherent, not in the legislature, but in the people. This being true, should the so-called amendment be held void for the reason that the resolution proposing it did not receive a sufficient number of votes in the lower house of the legislature? The amendment was proposed by a department of the government authorized to propose it. It was duly published, and every voter must be presumed to have been familiar with its terms. It was, in the manner provided by the constitution, so far as the question of its adoption or rejection is concerned, submitted by ballot to the voters of the state for adoption or rejection, and was by a large majority (13,322 for, 2,677 against) adopted. The only irregularity is the fact that it did not receive the votes of two-thirds of the members of the house. It cannot be questioned but that any voter of the state, by proper proceedings in the district court, or in this court, could have obtained a writ of prohibition restraining the secretary of state from certifying the question of adopting said proposed amendment to the various county auditors. The official ballot could have been protected against the improper submission of such question, and could have been purged of the presence of such question thereon, by proper judicial proceeding. * * *.” 7 Idaho at 758, 65 P. at 564.
While the foregoing quotation from Holmberg v. Jones is dicta, nonetheless it is persuasive regarding the authority of the legislature to act in the area of amendments or revision of the constitution.
The case of Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1 (1912), involves a factual' situation very similar to the one at bar.. The Indiana Supreme Court held that the' legislative power which the constitution bestowed on the general assembly is the power to make, alter and repeal laws. The grant of legislative power in the-constitution did not transfer from the people to the legislature all the legislative power inhering in the former. The court also quoted Jameson on Constitutional Conventions, “That, whenever a Constitution needs a general revision, a convention is-indispensably necessary.” (99 N.E. 1 at p. 7.) The court went on,
“The presence of this article [a provision of the Indiana constitution similar to article 20 section 2 of the Idaho constitution] * * * fights against the-contention that the general grant of legislative authority bears in its broad arms by implication any power to formulate and submit proposed organic law whether in the form of an entire and complete instrument of government to-supersede the existing one or single amendment. For if the General Assembly have the greater power, unfettered power, under the general grant, what necessity could there have existed for giving the lesser, special power, with the checks and limitations accompanying it?”' 99 N.E. 1 at p. 8.
The Indiana court said further, and I believe this to be the fundamental principle of constitutional revision:
“ * * * [It is the rule] that, where the means by which the power granted shall be exercised are specified, no other or different means for the exercise of the power can be implied even though considered more convenient, or effective, than the means given in the Constitution.” 99 N.E. 1 at p. 16.
*827'That court summed up its decision by .saying:
“* * * [T]he act of 1911 is invalid for a want of power in that body to -draft an entire Constitution and forthwith submit it to the people under its general legislative authority, if the instrument be conceded to be a new Constitution and not merely amendments; and that, if it be considered as merely a series of amendments, it is a palpable evasion and disregard of the requirements and checks of article 16 [similar to art. 20, § 2 of the Idaho constitution], and is for that reason void.” 99 N.E. .1 at p. 19.,
Other cases and authorities have held that when the constitution prescribes by its own terms the method and manner in which it may be changed, altered or revised, such limitations must be strictly observed. See Holmes v. Appling, 237 Or. 546, 392 P.2d 636 (1964) ; Revira-Cruz v. Gray, 104 So. 2d 501. (Fla.1958); McFadden v. Jordan, 32.Cal.2d .330, 196 P.2d 787 (1948). See also Jameson, Constitutional Conventions, Ch. VIII (2d ed. 1869); and Cooley, Constitutional Limitations, p. 81 (8th ed. 1927).
The procedures adopted by the legislature in enacting the resolution involved liere have completely eliminated two essential steps for a revision of a constitution which, in my opinion, are mandatory under our present constitution. Those are, (1) the submission to the electors of the state the question as to whether or not they ■desire a constitutional convention to be called, and, (2) the actual calling of the •constitutional convention, which convention would be comprised of members who were selected by the electors for the sole purpose of revising the constitution.
The procedure originally proposed by the legislature when it enacted S.L.1965, Ch. 317, (p. 891), was in full conformity with the constitutional provision. When the legislature subsequently passed the joint resolution submitting the issue of •constitutional revision directly to the people without having first complied with the constitutional convention procedure,- It ignored its prior enactment of S.L.Í965, Ch. 317 (p. 891) which is still on the books. The legislature assumed' authority by its own mandate which, in my opinion, it did not have.
The conclusion that art. 20, § 3 is exclusive is further compelled by an examination of that section together with the other sections of art. 20. The Idaho legislature ■ has followed a procedure in substantial conformity with that set out in art. 20, § 1 of the Idaho constitution; yet, § 1 of that article says nothing about revisions. It speaks only of amendments. Surely, if the drafters of our constitution had intended that art. 20, § 1 procedure be available for revision as well as amendments, they would have taken the simple step of including revisions in that section.
The legislature has seen to it that a constitutional convention will never, again be necessary or open to argument in Idaho by means of art. 17, § 1 of the .proposed constitution^ which provides:
“The legislature, two-thirds of the members of each house concurring, may propose a new constitution, or a revision of or amendments to, the constitution i}C í|í Sji 3}
The inference from this proposal is - clear-The legislature is aware of the obvious meaning of § 3 as it presently stands and is nevertheless 'avoiding its mandate with a resulting enhancement of the legislature’s own power in the future. That is, the legislature may now initiate and control the constitutional revision process. Such a fundamental check on the power of a branch of government as a constitutional convention is being set aside in the name of expediency and by means of tenuous interpretation.
Furthermore, when art. 20 is read'as. a whole, the interpretation appellant proposes is also inconsistent with § 2. That section provides that amendments proposed by the legislature shall be voted on individually. The legislature is not constitutionally permitted to submit a number of amendments *828to be voted on as a whole. Therefore, could it possibly be allowed to submit a number of amendments so substantially altering the existing document as to be within the definition of a revision, and avoid the prohibition of § 2? If the legislature could not propose amendments in the method attempted, than a fortiori it could not propose a total revision by the proposed method.
Moreover S.J.R. No. 3, 1967 S.L., p. 1569, submitted to the electors an amendment of art. 20, § 2, which proposed that § 2 read as follows:
“If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately, provided that if any proposed amendment is submitted to the legislature by a duly authorised constitutional revision commission for approval and submission to the electors, it may embrace as one question any or all subjects contained within any one Article of the Constitution and related subjects within any other Articles of the Constitution.”
This resolution was voted on in the general election on November 5, 1968 and was defeated. Certainly this has a bearing on the issue as to whether or not a complete revision can be submitted by the legislature for one vote by the people when the legislature has previously been denied the power to submit to the people at one time an amendment embracing more than one provision.
The appellant cited two cases upon which heavy reliance is placed as authority to uphold its position as to the validity of the contested procedure. Those cases are: Wheeler v. Board of Trustees, 200 Ga. 323, 37 S.E.2d 322 (1946), and Gatewood v. Matthews, 403 S.W.2d 716 (Ky. 1966). As pointed out by the majority opinion the authoritative value of Wheeler in this factual situation is diminished by reason of the fact the issue of validity of a constitutional revision was presented to the court after the proposed revision had been approved by the electorate.
Insofar as the Gatewood case is concerned, the opinion was severely criticized by the dissent to that opinion. Also, the position of the majority was well exposed by a case comment in 81 Harvard Law Review 693 (1968), wherein it pointed out,
“Furthermore, it is not accurate to say, as the court did, that 'the legislature does nothing unless and until the people ratify * * for the procedure sanctioned by Gatewood has the effect of significantly increasing the legislature’s power to initiate and control the process of constitutional revision. In fact, the legislature alone decided to have a new constitution drafted. The check provided by the requirement that the voters ratify this decision was circumvented, if not overridden in view of the popular feeling evidenced by the electorate’s previous rejection of the legislature’s proposal to call a convention. * * *. [81 Harv.L.R. p. 695]
“ * * * [Although' the court seemed to suggest that requiring final ratification instead of popular participation at the drafting stage had the advantage that ‘the people [then] need not rely on a representative to speak for them,’ the use of a convention of elected delegates may itself frustrate simple majorities attempting to carve out positions of power in the fundamental law; to the extent that the' effect of constitutional change on interest groups can be predicted, the negotiations at the convention are likely to produce a tradeoff of preferences which in theory will accommodate the different interests represented. Thus, the court’s implicit conclusion that ‘the people’ in whom ‘[a] 11 power in inherent’ in Kentucky are a simple majority of those voting flies in the face of the requirements under the prescribed procedures which put some restraints on the power of such a ma*829jority to revise the constitution. [81 Harv.L.R. p. 696]
“ * * * If the prescribed revision procedure really was obsolete, the proper method for changing it was by amendment, but, in fact, the people of Kentucky rejected a proposed amendment which would have abandoned the requirement for legislative action at two successive sessions. The electorate’s response to other legislative proposals for constitutional change similarly belies the existence of any emergency or revolution in progress. Indeed the constitution submitted to the people under Gatewood suffered an ignominious defeat. Thus, it seems particularly ironic in Gatewood to justify the legislature’s actions on a theory of popular sovereignty. Surely neither popular recalcitrance nor indifference can excuse departures from the constitution. [81 Harv.L.R. p. 697]”
Thus, it is my opinion that the judgment of the trial court should be affirmed.
SPEAR, J., concurs in this dissent.