I dissent. I think the writ should issue. It is my view that the courts have no authority initially to pass upon the qualifications of signers or the genuineness of signatures on a referendum petition. The legislature has reposed that function, first in the county clerks and then in the Secretary of State. (Sec. 101, Rev. Codes; compare State ex rel. Case v. SuperiorCourt, 81 Wash. 623, 143 P. 461, Ann. Cas. 1916B, 838;Edwards v. Hutchinson, 178 Wash. 580, 35 P.2d 90.) Only for arbitrary or fraudulent action on the part of the Secretary of State are the courts warranted in interceding. (State ex rel.Buck v. Board of County Commissioners, 21 Mont. 469,54 P. 939; State ex rel. Peck v. Anderson, 92 Mont. 298, 13 P.2d 231.) *Page 606
The petition in the district court does not question the good faith of the Secretary of State. The charge of forgeries made in the complaint in the district court, and the other irregularities therein asserted to nullify the referendum petitions, are matters which, in my opinion, should be addressed to the Secretary of State and not to the district court.
Whether the Act in question is subject to referendum is, of course, a question for the courts, but to avoid unnecessary delay in determining that question finally, I think we are warranted in issuing the writ, even though there may be right of appeal from the lower court's ruling thereon. (State ex rel. Jerry v.District Court, 57 Mont. 328, 188 P. 365.)
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