(dissenting).
I dissent. All of the issues raised here revolve around essentially one question: Whether or not the signer of an initiative petition is required to be an actual registered voter.
This court has held in the case of Territory v. Evans, 2 Idaho 651, 23 P. 232, 7 L.R.A. 646 (1890), that registration is only for the purpose and as a precaution to prevent fraud in elections.
The petitions here in particular have been properly certified that the people signing the petition possess all of the qualifications of a qualified voter. There has been no allegation that there was any fraud and there has been no question raised that the people signing all of these petitions were not qualified voters.
In the absence of any showing of fraud, this court should not hold that the signer of an initiative petition should be an actual registered voter. To do so is depriving these people of a constitutional right upon a technicality which has no basis here. It *485is not the registration of a voter that makes him qualify, his actual qualifications are the ones that count. Since the petitions have been certified that the people signing have the qualifications of a voter and no question has been raised in this regard, it is my feeling that the lower court was in error and that this court is in error in not reversing the lower court.
Furthermore, in the constitutional amendment providing for initiative it provides that legal voters are the ones who may sign such petitions. Without citing any authority whatsoever, the majority has held that a legal voter is a registered voter. Case after case throughout the United States has held that a legal voter is one who possesses the qualifications but need not be registered : Branstetter v. Heater, 269 Ky. 844, 108 S.W.2d 1040, (1937); In re Ray, 56 A.2d 761, 26 N.J.Misc. 56, (1947); State ex rel. Marcum v. Wayne County Court, 90 W.Va. 105, 110 S.E. 482 (1922); State v. Billups, 63 Or. 277, 127 P. 686, 48 L.R.A. 308 (1912); Woodward v. Barbur, 50 Or. 70, 116 P. 101 (1911); State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327 (1920); Benson v. Gillespie, 62 Colo. 206, 161 P. 295 (1916).
In the constitutional enactment providing for initiative the constitution provided that legal voters are the ones who may sign such petition. The legislature, in going beyond that requirement, violated the constitutional provision and any provision in the law that’s enacted by the legislature requiring that the signers of the initiative be registered is invalid.
Again, it is stated with emphasis that the lower court should be reversed.