(dissenting).
The facts of this case are very simple and have been stipulated. For the purposes of the initiative, appellants were required to collect 25,260 signatures meeting the requirements of law. Appellants collected about 28,011 signatures in all, but 5,000 of these were not certified by the clerks of the district courts as valid under the law. Thus, the Secretary of State refused to place appellants’ proposal on the ballot.
The majority opinion concludes that signers of an initiative petition must be “registered electors.” This adds but another term to those already present in the constitution and statutes relating to elections.
Idaho Const, art. 3, § 1 provides in part that “legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people.” It should be noted immediately that the phrase “under such conditions [etc.]” is placed between the words “may” and “initiate.” The phrase therefore modifies the verb “may initiate” and does not in any way qualify the term “legal voters.” The legislature was given no power to tamper with the term “legal voters” nor has the legislature attempted to add qualifications to such term.
Legislation prescribing the “conditions” and “manner” in which “legal voters” may initiate legislation is contained in I.C. §§ 34 — 1801 to 34 — 1822. The term “legal voter” is used in every relevant section,1 while the term ■ “elector” appears only in § 34— 1807 2 and “qualified elector” appears only in § 34-1814.3 This latter section provides: “Every person who is a qualified elector of the State of Idaho may sign a petition for the * * * initiative for any measure which he is legally entitled to vote upon.” Again it should be immediately noted that the phrase, “which he is legally entitled to vote upon,” refers to "measure,” and its purpose does not necessarily indicate that the qualified elector must also be registered in order that he may actually vote, as the intervenor contends.
The majority equates the term “qualified elector” as it appears in I.C. § 34 — 1814 *487with the term “legal voter.” This having been accomplished, the majority turns to the constitution art. 6, §§ 2 and 4, to find that a qualified elector must be registered. Hence, by the majority’s reasoning, the legal voter must also be registered.
There are several flaws in this conclusion. The first is that the majority opinion ignores the substantial body of law which states that a legal voter is one possessing the substantive qualifications to be a voter, whether registered or not.4 The term “legal voter,” especially in the context of the initiative provisions where it is used in opposition to the narrower term “elector” or “qualified elector,” is broad and encompasses persons meeting the requirements of citizenship, age and residence and lacking other substantive disabilities.
The second flaw of the majority’s conclusion is in making registration a substantive qualification for voting. Assuming, as the majority opinion does, that a “legal voter” is equivalent to a “qualified elector,” the further assertion that to be a “qualified elector” one must be registered does not withstand analysis. It is true that Idaho Const, art. 6, § 2 provides that every citizen of the United States over twenty-one who meets the residence requirements is “if registered as provided by law, a qualified elector.” However, several cases decided by this Court have squarely held that “registration [was not] intended as one of the substantive qualifications of an elector. Registration was intended only as a regulation of the exercise of the right of suffrage, and not a qualification for such right.” 5 These holdings are in accord with the great weight of authority to the effect that registration is merely a mechanical adjunct to the electoral process whose function is limited to the ascertainment of whether persons in fact possess the substantive qualifications necessary to be a voter.6 The purpose of registration is to protect the purity of the ballot box from fraud by inquiring whether voters actually possess the substantive qualifications to vote. The purpose of requiring that a voter be of a certain age and have a certain residence and citizenship and lack various disabilities is to insure that only those with a genuine stake in our society be permitted to vote. It thus does not comport with our law to reason that registration is a substantive qualification to vote.
Registration is the mechanical condition precedent to exercise of a qualified franchise. It is a convenient manner to check legal voters, but it is only one of various ways the legislature contemplated. The majority, by its holding that signers of a petition must be “registered electors,” invalidates or renders superfluous that part of I.C. § 34-1807 which states that the Secretary of State “shall * * * count * * * signatures proved to be the genuine signatures of legal voters [by means of an appearance before a notary].” The legislature, by enacting this, proviso, could not have meant to make registration the sine qua non of the signature validation process. By this provision the legislature recognized that a legal voter is not necesarily a registered voter.
*488The intervenor also relies upon Idaho Const, art. 6, § 4, which provides that “the legislature may prescribe qualifications, limitations, and conditions for the right of suffrage, additional to those prescribed in this article * * for support in its assertion that the legislature could make registration a qualification for voting.7 Without conceding such to be the case it is to be noted that the legislature has nonetheless not enacted such legislation. Qualifications of voters are set out in Chapter 4 of Title 34, I.C., wherein there are no qualifications other than citizenship, age, residence, and freedom from enumerated disabilities.8
I would submit, therefore, that the signers of an initiative petition need only be “legal voters” as is used in Idaho Const, art. 3, § 1, and as was defined at the time of its adoption and should not be enlarged upon.
. “Legal voter” appears three times in § 34-1801, two times in 34-1805, three times in 34-1807, and one time in 34-1814.
. Four times.
. One time.
. 29 C.J.S. Elections §§ 1(7) and 1(8) (1965); Branstetter v. Heater et al., 269 Ky. 844, 108 S.W.2d 1040 (1937); In re Ray, 26 N.J.Misc. 56, 56 A.2d 761 (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 (1912); State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327 (1920); Benson v. Gillespie, 62 Colo. 206, 161 P. 295 (1916); Woodward v. Barbur, 59 Or. 70, 116 P. 101 (1911).
. Wilson v. Bartlett, 7 Idaho 271 at 276, 62 P. 416 at 417 (1900), following Territory v. Evans, 2 Idaho 651, 23 P. 2.32, 7 L.R.A. 646 (1890), and quoted with approval in Jaycox v. Varnum, 39 Idaho 78 at 84, 226 P. 285, at 286 (1924).
. 29 C.J.S. Elections § 95 (1966); Minges v. Board of Trustees, 27 Cal.App. 15, 148 P. 816 (1915); Garrison v. Rourke, 32 Cal.2d 430, 196 P.2d 884 (1948); 37 Cal.Ops.Atty.Gen. 16 (1961); Earl v. Lewis, 28 Utah 116, 77 P. 235 (1904); Tennent v. Stacy, 48 Wash.2d 104, 291 P.2d 647 (1955); Cooley, Constitutional Limitations 906-907 (1903).
. Intervenor’s Brief, p. 17.
. See I.C. § 34r-401.