State ex rel. Linde v. Hall

Goss, J.

This court issued an order to show cause why it should not issue an original writ of injunction to stay further proceedings in capital removal instituted by the filing with the secretary of state ©f a peti-. tion for submission of a proposed amendment to § 215 of the state Constitution. Relator asserts among other things that the second subdivision of § 202 of our state Constitution, purporting to authorize initiative and referendum amendment thereof, is not self-executing, and therefore that said petition is void, and that submission of any proposition thereunder should be enjoined.

Respondent, secretary of state, asserts that this court is without jurisdiction or power to interfere with his official action, asserting that when so acting he is a legislative agent of the people and fulfils a legislative function in submitting said matter to vote; and that to stay submission of the question at the coming election, or to make any judicial inquiry as to the legality of the petition filed, is not only judicial interference with legislation in course of enactment, but it is an unwarranted and unconstitutional usurpation of legislative power by the judiciary.

This contention will be first noticed. It is premised upon the erroneous basic assumption that the enacting of a constitutional amendment is an exercise of a legislative power confided as legislative subject matter upon the legislative department of government, as is ordinary legislation. While in a sense such may be a political or legislative matter for determination as a political question, Red River Valley Brick Co. v. Grand Forks, 27 N. D. 8-27, 145 N. W. 725, yet in its submission for adoption or rejection neither legislative province nor power is involved. Whether the people by initiative petition or by legislative proposal amend the fundamental law, they are in either instance “merely acting under a limited power conferred ... by the people, and which might with equal propriety have been conferred upon either house, or upon the governor, or upon a special commission, or any other body or tribunal. The extent of this power is limited to the object for which it is given, and is measured by the terms [of the Constitution] in which it has been conferred, and cannot be extended by the legislature to any other object, or enlarged beyond these terms. ... In submitting propositions for the amendment of the Constitution, the legislature is not in the exercise of its legislative power or of any sovereignty of the people that has been intrusted to it, but is merely acting under a limited power conferred upon it by the people.” Livermore v. Waite, 102 Cal. 118, 25 L.R.A. 312, 36 Pac. 426, involving a capital removal from Sacramento to San Jose attempted by constitutional amendment; Chicago v. Reeves, 220 Ill. 274, 77 N. E. 237-240; Collier v. Frierson, 24 Ala. 108; and Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3.

“The legislature in executing its functions [in proposing constitutional amendments] does not legislate in a technical sense. The result does not need the approval of the governor. The duty is ministerial in character. There is good reason why the manner of procedure so far as material — and the people must be presumed to have settled the question of what is material — must be followed. The power to make law, within fundamental limitations, is inherent in the division of the government formed for that purpose. It does not need any express grant, bub does not include making or proposing fundamental law. The power to so propose is a special grant, and must be exercised within the scope of the grant.” State ex rel. Postel v. Marcus, 160 Wis. 354, 152 N. W. 423.

A lucid exposition of this principle is also found in Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915C, 200, and note citing much authority. Submission for adoption by ballot of a new Constitution proposed by the Indiana legislature was there enjoined. The syllabus reads: “The power to declare the law vested in the judicial department of government covers the whole body of law fundamental [constitutional] and ordinary, and hence whether a legislative action is void for want of power in that body, or because the constitutional forms or conditions have not been followed or have been violated, may become a judicial question, and hence the supreme court has jurisdiction to determine and declare that Acts 1911, chapter 118, providing for the submission by the legislature of a proposed new constitution to the vote of the electors, is void as not within the power of the legislature.” This covers both the jurisdiction of courts over, and the propriety of the remedy of injunction against, submission of a proposed Constitution, when the result must be a nullity. Every contention of respondent is there answered, and the authorities are collected and analyzed so fully that but little, if anything, is left unsaid.

The same distinction is drawn in Carton v. Secretary of State, 151 Mich. 337, 115 N. W. 433, where it is said: “The constitutional convention is indeed the child of the law, but of the organic law, and not a legislative enactment. In this state the Constitution is the charter of the [subsequent constitutional] convention, and its sole charter.”

For another-recent decision to the same effect see Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann. Cas. 1914B, 916: The syllabus reads: “A determination of whether an amendment to the Constitution has been validly proposed and agreed to by the legislature is to be had in a judicial forum where the Constitution provides no other means for such determination. The act of the secretary of state in publishing and certifying to the county commissioners proposed amendments to the Constitution is in its nature ministerial, involving the exercise of no discretion, and if the act is illegal it may be enjoined in appropriate proceedings by proper parties, there being no other adequate remedy afforded by law. Where an alleged illegal ministerial official act has relation to legislative action, such action may be considered by the courts in determining the validity or invalidity of the ministerial act. This is not an interference by the courts with the legislative department of the government.” The opposite is true. Mandamus will not lie to compel submission under the initiative of an ordinance which would be void if enacted. State ex rel. Davies v. White, 36 Nev. 334, 136 Pac. 110, 50 L.R.A.(N.S.) 195, and note. Mandamus was issued to compel election on recall petition ignored by city coupcil where petition was legal and regular. Good v. San Diego, 5 Cal. App. 265, 90 Pac. 44. “The duty of the council is purely ministerial,” and action can be compelled by mandamus. Conn v. Richmond, 17 Cal. App. 705, 121 Pac. 714, 719; Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222; McBee v. Brady, 15 Idaho, 761, 100 Pac. 97; Vincent v. Mott, 163 Cal. 342, 125 Pac. 346; State ex rel. Lynch v. Fairley, 76 Wash. 332, 136 Pac. 374; State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440-504, 15 L.R.A. 561, 51 N. W. 724; Solomon v. Fleming, 34 Neb. 40, 51 N. W. 304; Cascaden v. Waterloo, 106 Iowa, 673, 77 N. W. 333; Macon v. Hughes, 110 Ga. 795, 36 S. E. 247; De Kalb County v. Atlanta, 132 Ga. 727, 65 S. E. 72.

South Dakota, Oklahoma, and Colorado have apparently declared a different rule. State ex rel. Cranmer v. Thorson, 9 S. D. 149, 33 L.R.A. 582, 68 N. W. 202; Threadgill v. Cross, 26 Okla. 403, 138 Am. St. Rep. 964, 109 Pac. 558; People ex rel. O’Reilly v. Mills, 30 Colo. 262, 70 Pac. 322; and Speer v. People, 52 Colo. 525, 122 Pac. 768 (an affirmance by an equal division of justices). An election will- not be enjoined for irregularities in the. petition or procedure, as distinguished from an absence of law for the entire proceeding. Pfeifer v. Graves, 88 Ohio St. 473, 104 N. E. 529; Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235, Ann. Cas. 1912A, 729.

But that the sufficiency of the petition is a judicial question, as well as the propriety of the remedy of injunction, has already been passed upon by this court in adjudicating the insufficiency of a petition for a state-wide referendum upon a legislative enactment, and holding it to be a judicial question, and in which proceedings in referendum were enjoined because void. State ex rel. Baker v. Hanna, 31 N. D. 570, 154 N. W. 704. On original writ this court therein declared: “As a referendum sets aside or suspends the will of the people as expressed by legislative act, petitions for a referendum should be required to comply strictly with the mandatory constitutional provisions under which a referendum is authorized. To require less is the equivalent of amending said constitutional provisions by court fiat, as well as to be derelict in enforcing the Constitution itself.” The cases cited in State ex rel. Baker v. Hanna, supra; State ex rel. McNary v. Olcott, 62 Or. 277, 125 Pac. 303; State ex rel. Halliburton v. Roach, 230 Mo. 408, 139 Am. St. Rep. 639, 130 S. W. 689; Hammett v. Hodges, 104 Ark. 510, 149 S. W. 667, and above authorities, also fully sustain that holding and these conclusions, i. ethat the secretary of state acts but ministerially. Hence his acts in submitting proposed constitutional amendments to the electorate are subject to judicial review; and the same is in no sense invading or usurping any legislative function.

But counsel reasons that by abuse of judicial review legal passage of any constitutional amendment might be abridged or prevented through staying the process of its adoption, as by enjoining publication of notice or wrongfully and illegally keeping it off the ballot. However this may be, the question is but an incident of the fully recognized judicial power and province to determine constitutionality of legislative act and to declare laws unconstitutional. The same argument of alleged judicial domination of the legislative arm of government has been applied against that power and province of the judiciary. But it has always been accepted that the power to determine constitutionality of legislation is vested in courts, and that such is a judicial question pure and simple. Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915C, 221, citing a page of authority. This question was settled” in the pioneer case of Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60.

But possible results of an abuse of judicial power will not be presumed upon which to found a reason for denial of court review in such instances. Powers of a court of equity are not measured by what might be done through an arrogant and high-handed abuse of its legitimate authority. The following from Worman v. Hagan, 78 Md. 152-165, 21 L.R.A. 716, 27 Atl. 616, commenting upon a possibility of abuse of executive power as a factor in determining judicial issues presented is apropos. “It may be asked what is to be done in case the governor should violate his duty and wrongfully proclaim an amendment as adopted which in point of fact had been rejected. It would not be becoming in this court to suppose that such a contingency would ever happen. The courtesy due to the executive department forbids us to entertain such a conjecture.”

Approved in Gottstein v. Lister, 88 Wash. 462-498, 153 Pac. 595, testing constitutionality of the prohibition amendment to the Washington Constitution.

Learned counsel for respondent also contend that jurisdiction should be denied for the reasons (1) that all questions for decision are moot, as the people may by negative vote reject the proposed amendment; (2) that the proper exercise of judicial inquiry should be confined to passing upon the validity of amendments as passed, and not to interfere in the progress of their passage; and (3) that relator has shown no peculiar personal or financial interest in the proposed amendment sufficient to entitle him to maintain this action.

These objections were all advanced and answered in Ellingham v. Dye, supra. As to the first and second that court said: “If the legislature was without power to formulate and present the proposed organic law to the people, as we have seen it was, chapter 118 is void, and the mandate of that body that the ballot shall be encumbered with the question of its adoption is of no more force than that of any citizen without authority under the Constitution. The question involved is no more than whether ministerial acts threatened to be done in carrying out the provisions of an unconstitutional act may be enjoined. This, as we have seen, may be done. And there is also authority for the intervention of the courts before proposed constitutional changes have been passed upon by the votes of the electors, and the result declared;” citing Carton v. Secretary of State, 151 Mich. 337, 115 N. W. 429; Wells v. Bain, 75 Pa. 39, 15 Am. Rep. 563; Livermore v. Waite, 102 Cal. 113, 25 L.R.A. 312, 36 Pac. 424; Holmberg v. Jones, 7 Idaho, 752-758, 65 Pac. 563; Tolbert v. Long, 134 Ga. 292, 137 Am. St. Rep. 222, 67 S. E. 826, all closely parallel to this case at bar. These authorities also uphold a taxpayer’s right to sue even though his financial hurt be so small as to amount to, as in Ellingham v. Dye, “but the price of a postage stamp.” It is there said “the small proportionate sum of the cost of the election which would fall upon appellee as a taxpayer is not in itself sufficient to destroy his competency to sue. Where a suit is brought by one or more for themselves and all others of a class jointly interested, for the relief of the whole class, the aggregate interest of the whole class constitutes the matter in dispute.’ Brown v. Trousdale, 138 U. S. 389, 34 L. ed. 987, 11 Sup. Ct. Rep. 308.”

The same claim of want of interest could be advanced after a void amendment had passed to an action to raise its invalidity. It would be hard to find a person having a special interest differing from that of' every citizen and taxpayer, and the void amendment on such a standard of necessity of interest to sue for years might go unchallenged by one: having power to do so, and constitutional rights of every citizen meanwhile be abridged.

Having jurisdiction to proceed with this inquiry, the all-important question propounded by petitioners will be answered. If their contention is sound, that the second subdivision of § 202 of our fundamental, law but authorizes legislation facilitating amendments thereto by initiative, and is not self-executing, and therefore inoperative, as yet no such legislation having been provided, it follows that no valid petition to initiate a constitutional amendment has been filed, and the threatened act of the secretary of state would in any event but result in a nullity. In other words, the question presented is whether subdiv. 2 of § 202 of our Constitution, as amended, is self-executing. The following, taken from Cooley’s Constitutional Limitations, was adopted in State ex rel. Ohlquist v. Swan, 1 N. D. 5-13, 44 N. W. 492, as one test as to whether a constitutional provision is self-executing, viz: “A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles without laying down rules by means of which those principles may be given the force of law.” This test is settled law, and nearly every case on the subject quotes it. “It has been said that the question in every case is whether the language of a constitutional provision is addressed to the courts or to the legislature. Willis v. Mabon (Willis v. St. Paul Sanitation Co.) 48 Minn. 140, 16 L.R.A. 281, 31 Am. St. Rep. 626, 50 N. W. 1110; State v. Kyle, 166 Mo. 287, 56 L.R.A. 115, 65 S. W. 763. A provision that the legislature should make suitable provisions for carrying a constitutional amendment into effect is obviously addressed to the legislature,, and is indicative of the intention that such amendment should not become effective until made so by an act of the legislature.” 6 R. C. L. 58: citing Tuttle v. National Bank, 161 Ill. 497, 34 L.R.A. 750, 44 N.E. 984; State ex rel. Toledo v. Lynch, 88 Ohio, St. 71, 48 L.R.A.(N.S.). 720, 102 N. E. 670, Ann. Cas. 1914D. 949; Ex parte Wagner, 18 Ann. Cas. 197, and note (21 Okla. 33, 95 Pac. 435) and also note to 7 Ann. Cas. 628. “One of the recognized rules is that a constitutional provision is not self-executing when it merely lays down general principles, but that it is self-executing if it supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected, or the duty which it imposes may be enforced without' the aid of a legislative enactment. In other words, it must be regarded as self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination and construction of its terms, cmd there is no language indicating that the subject is referred to the legislature for action.” 6 R. C. L. 59, citing Willis v. Mabon, supra. “Indeed the question has been said to be one of intention in every ease.” 6 R. C. L. 57, citing Illinois C. R. Co. v. Ihlenberg, 34 L.R.A. 393, 21 C. C. A. 546, 43 U. S. App. 726, 75 Fed. 873; Tuttle v. National Bank, 161 Ill. 497, 34 L.R.A. 750, 44 N. E. 984; Newport News v. Woodward, 7 Ann. Cas. 625, and note, (104 Va. 58, 51 S. E. 193). “A constitutional provision is 'self-executing where no legislation is necessary to give effect to it.” 6 R. C. L. 57; State v. Caldwell, 50 La. Ann. 666, 41 L.R.A. 718, 69 Am. St. Rep. 465, 23 So. 869. And the nature of the subject matter may also be decisive of the question, as instanced by constitutional guaranties of personal rights and liberties, merely rules of law operating directly as self-executing mandates and guaranties. But with such we are not concerned, they being without the scope of the inquiry, as subdiv. 2 of § 202 under consideration purports to relate to procedure, viz., the method to be followed and the conditions imposed in amending our fundamental law by the initiative.

Applying these tests, we inquire: (1) Was it the intent of those adopting said subdiv. 2 that it should be considered as addressed to the legislature for that body to provide legislation to make it effective by defining its use, safeguarding against its abuse, and further the expressed intention of the amendment, or, instead, should it be considered as any other law and addresed to the court ? If the former, it is not self-executing; if the latter, it is. Then again: (2) Does it by its terms indicate that the legislature shall supplement it by procedure necessary to make it effective, or, on the contrary, is it so complete' that it “supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected or tbe duty which it imposes may be enforced without the aid of legislative enactment?” These questions must be answered, if possible, from the language of the constitutional provision itself, but if that is ambiguous or the answer doubtful, then the field of inquiry is widened, and rules applicable to construction of statutes are to be resorted to. In fact, a wider field of inquiry for information is proper where, needed in construing constitutional provisions than legislative enactment. “Constitutions are to be construed as the people construed them in their adoption, if possible, and the public history of the times should be consulted and should have weight in arriving at that construction,” are the words of that eminent jurist, Judge Cooley, People ex rel. Bay City v. State Treasurer, 23 Mich. 499, quoted and approved last year in a case closely parallel to this in facts in State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28, Ann. Cas. 1916B, 810. And is there any. ambiguity in subdiv. 2 of § 202 ? Is there any necessary thing omitted therefrom ? Is it complete or incomplete ? It reads, so far as material to this inquiry: “Any amendment or amendments to this Constitution may also be proposed by the people by the filing with the secretary of state at least six months previous to a general election of an initiative petition containing the signatures of at least 25 per cent of the legal voters in each of not less than one half of the counties of the state. When such petition has been properly filed, the proposed amendment or amendments shall be published as the legislature may provide for three months previous to the general election and shall be placed upon the ballot to be voted upon by the people at the next general election.” The well-established rule for construction of constitutional law is “that constitutional provisions, like statutes, always operate prospectively, and not retrospectively, unless the words used or the objects to be accomplished clearly indicate that a retrospective operation was intended.” 8 Cyc. 145. As there is nothing in the constitutional provision to indicate any reference was had by it to past legislation, how did those adopting this provision intend notice of proposed amendments to be given ? The answer, in the language of this constitutional provision, is “as the legislature may provide.” And does this mean as the legislature has provided or, instead, as the legislature shall by future enactment provide? Again the constitutional mandate, necessarily mandatory and prohibitive because under § 21 of the Constitution: “The provisions of this constitution are mandatory and prohibitory unless by express words they are declared to be otherwise” — emphatically answers “as the legislature may provide,” necessarily indicative of future legislative provision for publicity of such proposed amendments before any shall be submitted for adoption under this subdivision.

In scanning this constitutional provision as to whether it is or was intended to be complete as to procedure, and, as such, ready-made for use without further legislation, it is also noticeable that the necessarily ministerial duty of determining whether the petition invoking the power of amendment of the Constitution is sufficient to be “properly filed” is made to depend entirely upon whether it contains “the signatures of at least 25 per cent of the legal voters in each of not less than one half of the counties of the state.” This is the only constitutional measure of its sufficiency. The question then naturally arises from what and upon what basis shall the secretary of state compute its sufficiency as to numerical requirements ? The answer is by “(all) the legal voters in each of not less than one half of the counties in the state.” But how many legal voters are there in each of said counties, and how shall their number be determined? The legislature knew that this standard was, even if certain, hard of ascertainment, and not provided for by general law applicable to this constitutional provision. Otherwise, why did they, in proposing and adopting the corresponding initiative and referendum amendment as to legislation, amending § 25 of art. 2 of the state Constitution, adopted by the same two legislatures and considered at the same times and as a companion measure to this subdiv. 2, find it necessary to particularize by inserting in a much more definite, lengthy, and complete constitutional amendment a measure of computation of ordinary legislation in the words, “The whole number of votes cast for secretary of state at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted.” Why was such omitted here if it was considered so complete as to be self-executing ? Shall we find that, notwithstanding this definite provision in less important initiative constitutional guaranties, the legislature and the people in adopting this subdiv. 2 did so with an intent that it should be left without definite rule as to means of áscertainment and for the conjecture or ascertainment in any way possible of the respondent. Certainly a census or enumeration was not intended to be taken. Tet how without that, in a close case as to numbers, can that officer ascertain, with such a degree of exactness as should be required when proceedings looking to the alteration of the Constitution itself is in course of progress, facts necessarily involving computations and enumerations in at least twenty-six different counties, or one half the counties of the state ? If future legislation declaring some standard for guidance and computation was not intended, then why, may we ask, was the same legislature so specific in the less important constitutional provision as to initiative and referendum of ordinary legislation ? In the light of what it did as to the latter, it cannot be said that failure to be more definite here was the result of oversight. Rather, such discriminating particularity evidences an intentional deliberate omission. The more reasonable conclusion must be that here, as in also the matter of publication of notice of the proposed amendments, it was intended only to grant a mandate to succeeding legislatures to carry subdiv. 2 into effect by appropriate legislation.

And this conclusion is further strengthened when it is found that neither the form nor the substance of the enacting clause is provided for an initiative petition to be filed under subdiv. 2. If this 'was the only uncertainty, it might be doubtful whether it alone would warrant the determination that future legislation was intended before it should be held self-executing, but it is especially significant that these matters are here omitted, while the corresponding amendment as to initiative of legislation has provided both for an enacting clause and its form, by the following: “The enacting clause of the initiative bills shall be, ‘Be it enacted by the people of the state of North Dakota.’ ” What.should be the enacting clause for proposed amendments by initiative under subdiv. 2 ? Should it read: “Be it resolved by the people of the state of North Dakota,” or “Be it resolved by the people of the state of North Dakota with the senate and house of representatives thereof concurring?” Or is an enacting clause to be omitted entirely; if so, what in the petition for initiative is to indicate the action taken ?

Another question arising is whether the constitutional amendment proposed by initiative is to be printed in full upon the ballot or the substance thereof merely stated in general terms, requiring resort .to .the original initiative petition filed. Snbdiv. 2 is silent as to these important matters of procedure. Is not this omission further indication that matters of detail were to be left to the legislature, and that, in the language of the authorities, subdiv. 2 is “addressed to the legislature ?” It would seem so.

That a court is justified in resorting to concurrent acts of the legislature or matters of legislative and current history known to all men of ordinary understanding and intelligence at the time of the adoption of this subdivision 2 has the sanction of all authority. “In ascertaining the intent in adopting an amendment to the Constitution providing for the referendum of new laws, courts may resort to the history of such legislation, the contemporaneous construction, the changes made, the context and subject matter, and the purpose and spirit of the act, and the form in which the idea has been fashioned in other states.” Syllabus in State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28, Ann. Cas. 1916B, 810. In the opinion it is there said: “Following an agitation sustained by persistent propaganda the plan [initiative and referendum] was framed in words and adopted as a part of the fundamental law in several, states of the Union. The state of Washington, though not the first to adopt an amendment to its Constitution, did not borrow the idea from any of the states which had adopted it. The agitation in its favor did not ripen quite so soon in this state; but, at the time other states adopted it, the idea of direct legislation was a live question which, like most questions of great public interest, became so persistent that it could be settled only by adoption or rejection. It must be kept in mind that the theory of direct' legislation and the referendum is a thing neither new nor original. On the other hand, the purpose, the limitations on the legislature, and reservations of the people attempting its exercise, are to be gathered from the words, context, subject matter, reason, and spirit of the enactment, just as any other law or declaration of fundamental right is to be ascertained. In ascertaining the purpose and its limitations and reservations we may well look to the form in which the idea has been fashioned in other states and their experiences, assuming that the legislature and the people had these in mind, and if evil, that they intended to avoid them; if good, that they intended to adopt them. . . .

“Several years before the legislature submitted the amendment to our Constitution the people of Oregon had adopted the initiative and referendum with practically no limitations. ... It was a matter of common knowledge that under this unbridled license to refer legislation the state university had been denied the benefit of an appropriation for its support and maintenance. That one of the state institutions, exercising an essential function of the state, had been crippled and embarrassed, and but for the pledge of private credit would have been destroyed for a time at least.....We may well assume that the people of this state had no intention of falling into the error that Oregon had made, and so framed their Constitution that our government and its institutions should not be put to the embarrassments that might follow an agitation which could be supported and a-vote compelled by a number of electors so small that it may be said to be merely nominal.” This is recited as well illustrative of the right of courts to resort, in construing constitutional provisions, to matters of history and experience had by other states from the adoption of similar principles as a part of their Constitutions. The importance of this will develop later in a comparison of similar constitutional provisions with our own, developed from, if not taken almost verbatim from, the same constitutional provisions of Oregon discussed in this Washington case.

Under this situation, with the duty confronting us of taking judicial notice of the source from which sprung our constitutional provisions as to initiative of constitutional amendments and initiative and referendum of ordinary legislation and similar contemporaneous legislative action, which includes, besides our present two constitutional and statutory initiative amendments, all those additional concurrent resolutions that passed the legislature of 1911, providing for recall of the judiciary and all public officers by popular vote, and introduced by Senator Bessesen as a companion measure to chap. 93, of the Session Laws of 1911, introduced by the same gentleman, providing for a wide-open initiative and referendum on all legislative matters, and which has become our present constitutional amendment as to initiative and referendum on legislative matters; and again that the same legislature passed chap. 94, a house bill, introduced by Representatives Doyle and Ployhar, providing for recall of all public officers, and legislation by the initiative and referendum of all kinds of legislation; and for the future adoption of amendments to the state Constitution, and amended procedure in impeachment, all in one lengthy and elaborate concurrent resolution, — each and every of these provisions specifically and carefully provide that they shall be self-executing, in words or effect that “this amendment shall be self-executing, but legislation may be enacted especially to facilitate its operation,” and showing not only an expressed intent, but careful attention, to provide that they should be self-exeeuting, and as guarding against leaving anything essential for future legislatures to make operative, should they become fundamental law.

All this legislation is what may be properly termed radical in kind. The counterpart is conservatism, and we find that these same legislatures, besides submitting these radical measures, also submitted a conservative proposed constitutional amendment to § 202, and which has without change become § 202, including subdiv. 2 thereof. And the significant fact is that § 202, as so proposed and passed, has.wholly failed to provide, except by barest and uncertain inference, if at all, that it shall be self-executing, while all the radical amendments specifically declare in common and exact language: “This amendment shall be self-executing, but legislation may be enacted to facilitate its operation,” language found verbatim in the initiative and referendum constitutional amendments of the Constitution of Nevada, also earlier taken from Oregon, State ex rel. Dotta v. Brodigan, 37 Nev. 37, 138 Pac. 914. The plain concurrent resolution, and the recall, and general initiative measure, the Ployhar bill, House Bill. No. 133 of the 1913 legislature,, all failed of adoption in the 1913. legislature. While the Gibbens bill, chap. 89, Session Laws 1911, and the Bessesen initiative and referendum as to legislation, concurrent resolutions, passed both legislatures and a vote of the people, and are constitutional amendments. This omission in the Gibbens measure, the present § 202, to provide that it shall be self-executing, is significant, in view of the fact that two legislatures had all these various principles before, them. This omission was by no mere accident. The measure itself was a conservative one and intended to be such, and as such it was not intended to be self-executory, And the history of these measures in the 1913 legislature is strongly corroborative of this conclusion. The constitutional section under discussion was again there introduced in original form by Senator Gibbens as senate bill No. 73. It early passed the senate and was messaged to the house. The house had passed the Ployhar-Blakemore bill as house bill No. 133, the original Ployhar-Doyle resolution passing the 1911 legislature, and this measure providing for the initiative and referendum, recall, and a provision for impeachment, the 1913 Senate repeátedly refused to pass; while the house, to coerce the senate, then refused passage of not only senate bill 73, this constitutional amendment measure, but senate bill 32, introduced by Senator Overson, the original Bessesen measure as to initiative and referendum of legislation, which had been passed as senate bill 93 of the 1911 session, and is our present constitutional amendment providing for the initiative and referendum of legislation. Late on March 7th, 1913, the last legislative day of that session, and during the last closing hour of the senate session, an attempt was made to pass house bill 133, the Ployhar-Blakemore measure. It failed in passage, and thereby there was passed up to the House of Representatives all responsibility for the defeat of all such legislation. The house recanted, and as a result senate bill 32 and senate bill 73 were passed at the very close of the 1913 session, and were messaged to the senate and signed. Consult Senate Journal, pp. 1517-1601, and 1619, and House Journal, pp. 2005, 2006 and 2063-2066, 2071, 2072. All these bills were hotly debated in every phase and very carefully and thoroughly considered and discriminately acted upon, the radical measure as to constitutional enactment being refused passage, while the conservative one was approved. And as a matter of current history it was known that the opposition to the enactment of any measure to permit constitutional amendment by initiative petition was strongly opposed by many firm believers in the prohibition plank, § 217 of our state Constitution, which prohibitionists considered might be jeopardized by any initiative system for constitutional amendment. Such opposition to the more radical measure in all probability caused its defeat, and the adoption instead of the constitutional amendment containing subdiv. 2 of § 202. In its formulation care was used that it should not be self-executing, and that the percentage of signers required should be comparatively high. And this leads to another and probably all-sufficient reason in itself to declare this provision not self-executing, strongly evidencing the legislative intent that future legislation was necessary to make it effective. We refer to the percentage required, and which is uncertain. A petition must contain signatures “of at least 25 per cent.” This is merely decluratory of a minimum, leaving to subsequent legislation to fix tbe minimum, which must be “at least 25 per cent,” and to classify and vary accordingly, if necessary, any required percentage to initiate different amendments to the Constitution as legislative wisdom may regard necessary in view of widely different constitutional subject matter. To illustrate, it is probably within the grant of legislative authority by subdiv. 2 for the legislature to declare necessary a higher percentage to initiate a constitutional amendment to operate to change the seat of government of this'state or the state university, the state agricultural college, its normal schools, and other public institutions fixed by the Constitution, or to amend the prohibition constitutional guaranty, than would be necessary to initiate a rule for taxation. Engstad v. Grand Forks County, 10 N. D. 54, 84 N. W. 577. All this was intended to be left to future legislative wisdom, Avith the limitation that “at least 25 per cent of the legal voters in each of not less than one half of the counties of the state” should be required in any event, but that the actual percentage to be required to operate under subdiv. 2 should be fixed by legislative act. And the same is probably equally true as to the period before an election at which an initiative petition to amend fundamental law shall be required to be filed. It is doubtful if it was intended to be left as indefinite for operative purposes as declared by the words of subdiv. 2, the only requirement as to time being “at least six months previous to a general election.” Would the filing of a petition one year and six months or two years before a general election he sufficient compliance with this provision? Likewise, it was left to legislative discretion to determine what should be placed upon the ballot in voting upon such a proposed amendment.

But not only does the history of the enactment and of the times point to this conclusion, but still even more conclusive reasons exist. Oregon was looked to as the place of origin of not only these ideas, but as the place from which these constitutional provisions themselves were taken. They had been tried there for years. As early as 1904 in Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222, this legislation had been passed upon and held not to be in conflict with § 4 of article 4 of the United States Constitution guarantying to every state a republican form of government. Since 1902 the Constitution of that state had contained the initiative and referendum provisions whose phraseology is very closely followed by our measures. And the supreme court of that state as early as 1907 had held Oregon’s constitutional provision self-executing in Stevens v. Benson, 50 Or. 269, 91 Pac. 577. So all that was necessary to have our subdiv. 2 of § 202 self-executing beyond all doubt was for our legislature to borrow the remainder of the constitutional provision, and provide in this act, as in chap. 86, Session Laws 1911, the Plain resolution, that “the secretary of state and all other officers shall be guided by the general laws and this act in filing and submitting' initiative and referendum petitions until legislation shall be especially enacted therefor.” The Oregon constitutional provision reads: “Petitions and orders for the initiative and for the referendum shall be filed with the secretary of state and in submitting the same to the people he and all other officers shall be guided by the general laws and the act submitting this amendment until legislation shall be especially provided thereforNotice their almost identical as well as peculiar phraseology. This has been held self-executing in Stevens v. Benson, supra. The same legislature in 1911 adopted it almost verbatim as to the Plain bill and also as to the Bessesen measure, our present constitutional provision as to initiative and referendum of ordinary legislation. There can be no doubt that this language came from the Oregon initiative constitutional provision quoted. But not content with that, the last clause of the present constitutional provision as to legislation states: “This amendment shall be self-executing, but legislation may be enacted to facilitate its operation.” If the companion measure to subdiv. 2 was carefully made self-executing, and subdiv. 2 was not intentionally made not self-executing, why was this provision purposely and deliberately eliminated or omitted fz'om szzbdiv. 2, while found in the corresponding amendment as to legislation, which also was made doubly certain by an explicit declaration that i$ should be self-executing.

Oklahoma has held in Ex parte Wagner, 21 Okla. 33, 95 Pac. 435, 18 Ann. Cas. 197, that an identical omission by their legislature while adopting the same provision to their Constitution from the same source was in itself sufficient evidence of a legislative intent that similar constitutional provisions should not be self-executing. Upon that ground that court held them not self-executing. And Missouri in McGrew v. Missouri, P. R. Co. 230 Mo, 496, 132 S. W. 1077, declares to the same effect in the following language: “The general rule is that where one state borrows a constitutional provision from another state that has previously been construed by the courts of the latter state, such construction is presumed to have been adopted along with the provision; the reason for said rule is that if it were intended to exclude the previous construction, the legal presumption is that the terms of the provision would be so changed as to effect that intentionThis is only what was done and in law presumed as intended by the omission mentioned in failing to embody in subdiv. 2 of § 202 the Oregon provision making it self-executing, already construed in that state and adopted almost literally in the corresponding amendment authorizing the initiative as to ordinary legislation.

And this is no new rule of statutory or constitutional construction. In Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95, on an election statute construed in Wisconsin before its adoption here, it is said: “We are of the opinion that the Wisconsin authorities cited are controlling in this ease,” and all the votes cast in the city of Kenmare were thrown out, resulting in creating the county of Benville. See also Com. v. Hartnett, 3 Gray, 450; Pennock v. Dialogue, 2 Pet. 1, 7 L. ed. 327; Hogg v. Emerson, 6 How. 437, 482, 12 L. ed. 505, 524. And in State ex rel. Dotta v. Brodigan, 37 Nev. 37, 138 Pac. 914, a very similar amendment to their Constitution providing for the initiative and referendum, and which concluded with, “the provisions of this section shall be self-executing, but legislation may be especially enacted to facilitate its operation,” borrorved from the Oregon Constitution, was nevertheless held not to be self-executing because of other provisions incorporated therein tending to negative the express declaration that the same was self-executing, and to signify that further legislation was intended to be required to make it operative.

And it would seem improbable .that the legislature in submitting, and the people in adopting, this constitutional provision, intended it to be more than a direction to subsequent legislatures to provide, within the limitations therein declared, legislation providing procedure for constitutional amendment by initiative petition. This proposition of capital removal is illustrative in this, that a petition purporting to contain the names of thirty thousand electors of this state has been filed with the respondent, and upon that alone it is insisted that he must submit to tbe people tbe proposition of capital removal through the indirect means of amendment of the Constitution. There are no requirements as to verification of such a petition if this constitutional provision is self-executing. Only the signatures of 25 per cent of the electors in half the counties in the state, or, in other words, the approval of one-eighth of the electorate of the state, is all that is necessary if respondent be correct. While a corresponding removal of a county seat can only be brought about by a petition “verified by the affidavit of each of the signers thereof, stating that he is a resident of the county, a qualified elector therein, and that he personally signed his name thereto, knowing the contents and purposes of the petition” for removal; § 3233, Comp. Laws 1913, and that too by a petition of at least three fifths of the voters according to the votes cast at the last preceding general election, with the manner of submission upon the ballot specifically provided. It is hard to believe that either the legislature or the people would understandingly adopt this constitutional provision unless it was merely as a general rule authorizing legislation. While results of concrete application are not controlling, they may be looked to when the statute or constitutional provision is ambiguous, and where adopted with such a history as here.

We have no desire to thwart the public will or prevent a state-wide election upon any question, unless plainly required to do so. But we are convinced that this provision is not self-executing, and the supreme court of Indiana in Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915C, 200, at p. 227, has well expressed the frame of mind in which we find ourselves, in the following language: “Where the question presented to a court is a judicial question, it would be sheer, inexcusable cowardice and a violation of duty for it to decline the exercise of its jurisdiction,” and to decline to interfere and restrain the submission of this question when it is proposed to do so without any sanction of law. There is no law under which this petition is tendered and filed or under which it can exist in a legal sense as a petition.

The writ prayed for will issue, restraining further proceedings by the respondent in the submission to vote of the matter in question. It is so ordered.