The contention that section 1, article 7, of act No. 108, p. 290, of 1935, conflicts with amendment No. 7 of the Constitution is blandly dismissed by the opinion with, "This is not an initiated act as provided for in the amendment. It is merely a submission to the legal voters of the county on the question of the sale of liquor and is more in the nature of a referendum than an initiative petition." I would have been glad to have been informed as to just why the election held to determine whether liquor should or should not be sold in White county was not an initiated measure and in what respects it is "more in the nature of a referendum," rather than have to content myself with a mere ipse dixit. Without enlightenment, I am unable to perceive in what respect it differs from an initiated measure and in what particular it is in "the nature of a referendum."
On March 28, 1936, certain persons who represented themselves as qualified electors filed a petition praying that a special election be held in White county to determine whether or not spirituous, vinous, or malt liquors be sold in that county. The election was held as prayed, resulting in prohibition of the sale of liquor being voted. Prior to that date, by operation of a general law, the sale of liquor in White county was authorized.
The effect of this was to legislate locally for White county which could only be accomplished by authority of amendment No. 7 and was and could only have been an *Page 77 initiated measure to be submitted at a regular election. Therefore, that part of act 108 of the Acts of 1935 providing the measure be submitted at a special election is in direct conflict with the plain mandate of the Constitution.
The law authorizing the sale of liquor throughout the state was enacted at the legislative session of March 16, 1933. That part of the I. R. Amendment (No. 7) providing for a referendum "against any general act, or any item of all appropriation bill, or measure passed by the General Assembly" directs the manner and method by which the "referendum" may be invoked. Among the acts directed is that it shall be by petition filed with the secretary of state not later than ninety days after final adjournment of the Legislature. The Legislature itself cannot provide for the referendum, for the only power and authority for such a proceeding or for the initiation of a measure must be found in the language of amendment No. 7. Therefore, the local option features of act No. 108, supra, conferred no authority on the people not already possessed by them nor could it prescribe a method for the exercise of that authority different to that named in the Constitution.
I think the trial court's judgment should be affirmed; and I, therefore, dissent.