Daly v. Beery , 45 N.D. 287 ( 1920 )

Grace, J.

The plaintiff, a taxpayer, resident, and elector of Grant county, brings this action against tbe defendants, to restrain and enjoin them from causing the official printing and publications of tbe county of Grant to be published or printed in any newspaper of Grant county, other than tbe Grant County Leader; and from paying, or causing to be paid, any of tbe money of Grant county, for any county and official printing or publication, to other than tbe Grant County Leader.

The complaint, in substance, sets forth: That the plaintiff is a resident, elector, and taxpayer of Grant county; that Beery is the duly elected, qualified, and acting county auditor of Grant county, and that the other defendants above named are the duly qualified and acting county commissioners thereof; that the Grant County Leader is printed and published in that county, and was, about the 1st day of August, 1919, by the state publication and printing commission, under the provisions of chap. 188 of the Session Laws of 1919, designated as the official newspaper in and for that county; that the county commissioners above mentioned, in disregard of the provisions of chap. 188, at the first meeting of the board, held in Carson, the county seat of Grant county, did, on the 5th day of January, 1920, by resolution, designate three newspapers, other than the Grant County Leader, as the official papers in and for Grant county; namely, Carson Press, New Leipzig Sentinel, and Shield Enterprise; that none of said papers last mentioned were designated as official newspapers by the state publication and printing commission, though they have complied with the requirements of article 82 of chap. 38, of the Political Code of the state of North Dakota, as contained in the Comp. Laws 1913; that the defendants, at their January, 1920, meeting, awarded to the said three newspapers official reports of the board of county commissioners, for publication, and that they have printed and published the same; and that, unless the defendants are restrained, they will continue to cause the publication of all subsequent proceedings of said board of county commissioners, and all legal and official printing and publication of Grant county, to be published and printed in the three newspapers above mentioned; and, unless restrained and enjoined, will cause the money of Grant county to be expended, for said publication and printing at legal rates.

The defendants demurred to the complaint, on the grounds that it does not state facts sufficient to constitute a cause of action.

The demurrer, in further allegations, challenges the constitutionality of chap. 188, claiming it is unconstitutional on the ground that.it is in conflict with chapters 58 and 61, and what is commonly designated as the home-rule provisions of the Constitution, which are §§ 166 to 173, inclusive; and further claim that it contravenes the 14th Amendment to the Constitution of the United States; and maintain that it abridges their privileges and immunities, as citizens of the United States, and deprives them, as such, of due process of law; and maintain that the law in question confers an arbitrary and unreasonable power upon the state publication and printing commission, by conferring upon them the authority to name the official newspapers of the various counties of the state, in which the publication of process and notices, and other matters, the publication of which is required or authorized by law, must be published. The demurrer was heard before W. C. Crawford, Judge, who entered an order sustaining it.

We may consider the sections of the Constitution involved, in the order in which they are above set forth. Section 58 thereof is as follows : “No law shall be passed except by a bill adopted by both houses, and no bill shall be so altered and amended on its passage through either house as to change its original purpose.”

Section 61 is as follows: “No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated thereby only as to so much thereof as shall not be so expressed.”

In the preamble, found at the very beginning of our Constitution, and as an appropriate heading to the Bill of Bights, which consists of the first twenty-four sections thereof, stand the following expressive wbrds: “We, the people of North Dakota, grateful to Almighty God for the blessings of civil and religious liberty, do ordain and establish this Constitution.”

Section 2 of the Bill of Bights is as follows: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have a right to alter or reform the same whenever the public good may require.”

By § 25 of the Constitution, prior to its amendment by article 26, the legislative power was vested in a senate and house of representatives. Since its amendment, the legislative power is vested in the house and senate, excepting as reserved to the people, by the constitutional amendment to § 25, which provides a method for the initiating of law, by the people, irrespective of the legislature, and the referending of laws enacted by the legislature, each of such powers to be exercised under the conditions named in said constitutional amendment.

The will of the people, as expressed in law by the legislature or a law initiated and adopted by them, or law passed by the legislature and referended, and favorably passed upon by them, is tbe supreme law of this state, and can be declared invalid by the courts, only for two reasons, viz.: (1) That it is contrary to a provision or provisions of the Constitution of the state; (2) that it contravenes a provision or provisions of the Constitution of the United States.

If a law duly enacted by any of the methods above mentioned is not invalid for either of the causes above stated, it stands as an expression of the supreme will of the people of this state, and, under the Constitution, the courts have neither authority nor power to declare it invalid.

In this connection, it is well to bear in mind, that the powers of government, either state or Federal, are divided into three separate classes, viz., legislative, executive, and judicial. These powers are exercised by three distinct and separate branches of government, corresponding in name with the classes of powers mentioned.

If each of the branches, in consonance with the provisions of the Constitution, would exercise such powers only, as is thus distributed to it, and will fully recognize that the other co-ordinate branches of the government have certain duties distributed to each of them, which it is their right, duty, and privilege under the Constitution, exclusively to exercise, the harmonious operation and conduct of government, and the exercise of governmental powers, would become less difficult, and there would be less conflict in the operation of such delegated powers, and the supreme will of the people, when legally expressed, under the Constitution, would much more readily be carried into effect.

With these observations in mind, we may proceed to determine whether the charge, that chap. 188 is unconstitutional, contains any merit. If it is not unconstitutional, it must follow that it is a valid and subsisting law, and that it has been such ever since thirty days after its adoption by the voters, at an election held pursuant to law, where it was voted upon as a referended measure and there received a majority of the votes voting thereon.

The law is claimed to be unconstitutional, and contrary to the provisions of § 58 of the Constitution, in this, — that the bill for the act was so altered and amended, in its passage in the senate,' as to change its original purpose.

Chapter 188 was Senate Bill No. 157. The original purpose of the bill as expressed in its title, as originally introduced, is as follows: “An Act Creating a State Publication and Printing Commission, Prescribing Its Duties and Powers, and Repealing All Acts and Parts of Acts Conflicting Therewith.”

It made no reference to the appointment of an official newspaper in the counties in which should be printed the official proceedings of the board of county commissioners of the county, or in which all legal notices were required to be published. While, in the bill, as amended, and as it became a law, such provisions were inserted.

The full requirements, in this regard, may be better understood from a reading of chap. 188.

It is claimed that this change in the bill, this amendment, changed the original purpose of the bill, and for this reason, the law, under § 58, is rendered unconstitutional. With this contention, we disagree.

The purpose of the original bill was to create a state publication and printing commission, and the prescribing of its duties and powers.

An examination of the title of the bill will disclose that the bill intended to create a state publication commission and a state printing commission. These state the original purpose of the bill.

Publication and printing, each, have a well-understood signification. Publication means to make known, a notification to the public at large, either by words, writing or printing. Printing means the impress of letters or characters upon paper, or upon other substance.

The first implies the means of conveying knowledge or notice; the second implies a mechanical act. Any means, therefore, which would give notice to the public, of any matter desired to be brought to their knowledge, would be classed as publication.

Though the bill as introduced contained no reference to the appointment of an official newspaper in each of the counties of the state, in which all legal publications were required to be made, the original purpose of the bill was not changed by the amendment which did so provide for the amendment, as will be disclosed by a reading of chap. 188, which relates to publication of certain matters, and though they are not included in the original bill, they were matters connected with its purpose, viz., publication.

The title of the original bill also contained words which would direct attention to the fact that the duties and powers of the state publication commission were set forth in the bill, and hence one’s attention is thereby immediately directed to tbe bill, to determine wbat those powers are.

If the powers and duties are such that, when exercised, they relate to some matter of which it is desired to give the public notice; in short, if they relate to publication, they are within the purpose of the original bill, and germane to it.

The real purpose and intent of the bill, as amended, and which be<came chap. 188, is expressed by § 5 thereof, which is as follows: “The intent of this act is to co-ordinate publication of all state legal notices, publications, reports and laws of every kind and nature and under one supervising head, to have definite and certain legal newspapers in this state, so that information can be readily secured concerning any legal publication, and to economize in the matter of state printing; and to keep a complete system of files where legal publications of every kind, in the state can be readily found. This act shall receive a liberal construction in order to effectuate the purposes and intent thereof.”

It will thus be seen that the interpretation which the legislature has placed upon the purpose and intent of the law relates largely to publication of certain matters which are of vital interest to the public.

The title of the original bill provides for a state publication commission, and prescribed its powers and duties; and the intent of the law, as amended, is in consonance with the duties, powers, and purpose of the state publication commission, and deals largely with the matter of publication.

So long as the amendment related to publication, or the powers and duties of the commission, it is germane to the purpose expressed in the original bill.

Another very important matter to be taken into consideration is that § 25 of the Constitution has been amended so that the legislative power of the state is not exclusively vested in the legislature.

The people, by constitutional amendment, article 26, reserve the power, first to propose measures and to enact or reject the same, as proposed. Second, to approve or reject, at the polls, any measure or item, section, part, or parts of any measure, enacted by the legislature.

Each of these powers is a legislative power, and, if procedure is had under either, it must be by petition, as prescribed by law.

If the legislature pass a valid act, which does not contain an emergency clause, and the whole of the act is referended, it does not become a law until approved by a majority of tbe votes cast thereon, and then not until thirty days after the time of election, at which such law is voted upon.

Article 26 of the Constitution, which amends § 25, provides: A petition initiating or referending a law shall have printed thereon a ballot title, which shall fairly represent the subject-matter of the measure, and the names of at least five electors, who shall constitute the committee for the petitioners, and who shall represent and act for the petitioners.

As we construe that language, it is not necessary that the ballot title on a referendum petition shall be the same as the title of the act referended; that is, it is not necessary that the ballot title be identical in words and language with the title, as passed by the legislature. But, that such ballot title is sufficient, so far as the title thereof is material, if it fairly represent the subject-matter of the measure.

From this it would appear that the filing of a referendum petition, containing a ballot title, as required by article 26, is a separate and independent legislative step, by the people, to legislate upon the subject-matter of the law referended; that the title of the act, as passed by the legislature, has no peculiar bearing, nor does it govern as to what the ballot title on the petition shall be. For, in referending a law, the people are acting in their sovereign capacity, and independent of the legislature, in exercising the legislative power reserved to them.

Under article 26 the secretary of state is required to print and mail to each elector a publicity pamphlet, containing a copy of each measure, together with its ballot title, to be submitted at any election; and, by requiring such publication, the people are acting in the legislative capacity.

When a valid act passed by the legislature has been referended, and the steps required by article 26 have been taken, in referending such act, and a majority of the voters voting upon such act vote favorably thereon, at a state-wide election, or at a special election called pursuant to law, such act becomes a law, by reason of the exercise of the legislative power of the people, and not by reason of the exercise of legislative power by the legislature.

It may be concluded that if the constitutionality of chap. 188 were to be measured by §' 58 of the Constitution, exclusively, which we will show, in a subsequent paragraph, is not true, it would, nevertheless, as we view the matter, be a valid act, as it is not contrary to the provisions of that section, in that the purpose of the act is not changed, though the scope of it, to some extent, may be; but this is not sufficient reason to declare the act a contravention of that section.

This act is also attacked on the ground that it is contrary not only to §58, but to § 61 of the Constitution.

We will now discuss these two constitutional provisions from another viewpoint, and, perhaps, will be able to show their inapplicability, as organic law, with which to measure the constitutionality of the act in question, in that they are applicable only to acts passed by the legislature, and not to acts initiated by the people or acts of the legislature referended by them. In other words, the Constitution has been amended, and a provision inserted in it, by which the title of laws initiated by the people, or an act of the legislature by them referended, is exclusively governed.

This is a specific provision of the organic law, adopted at a time subsequent to the time of adoption of §§ 58 and 61, which governs, exclusively, in what are necessary requirements of the enacting clause in initiative measures, and, as well, what shall constitute the title thereof,, or the title to laws referended, when the same are voted upon, as prescribed by such amendment, which is article 26.

Manifestly, what is a proper title to an initiated or referended law should not be determined by §§ 58 or 61, but by article 26, which was specifically enacted and adopted, as part of- the Constitution of this, state, for the purpose of determining what is necessary to be stated and set forth in the title of either an initiated measure, or a law which has-, been referended. The case of State ex rel. Gibson v. Richardson, 48 Or. 310, 8 L.R.A.(N.S.) 362, 85 Pac. 225, has been cited in support of respondents’ contentions, with reference to chap. 188 being in contravention of § 61 of the Constitution. As we view the matter, that case is not authority for respondents’ contention.

Section 20 of article 4 of the Constitution of Oregon provides that “every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.”

This is, in substance, largely synonymous with § 61 of our Constitution.

Article 4 of the Constitution of Oregon was amended so as to provide for the initiative and referendum. The provisions therein, in that regard, are largely synonymous with those of article 26, with this important exception, — no provision is made for what shall be stated in the title of an initiated measure, by the petition or otherwise, nor any provision for a ballot title to an initiated measure or a referended act, as does our article 26; and, hence, under the Oregon Constitution, as •amended, whether the title to an initiated measure or the title to a referended act embraces more than one subject is a question to be determined by § 20 of article 4 of its Constitution, in the same manner as if the same question arose in reference to an act passed by the legislature, exclusively.

While, on the other hand, § 61 of our Constitution is not the organic law of our state, which determines the validity and sufficiency of a “title to an initiated measure, or an act of the legislature referenced to the people, but that is solely and exclusively determined by article 26, which provides what the ballot title shall contain, how it shall be published, and notice thereof brought home to the electors by mailing to them, as provided by law, a copy of the measure initiated or the act referended.

It is clear that § 61 relates to acts passed by the legislature only; of course, at the time § 61 was adopted, the initiative and referendum was not within the contemplation of the members of the constitutional -convention.

Article 61 has no reference to the initiative and referendum; those subjects are fully provided for in article 26. It lays down the whole procedure for measures initiated by the people, or an act of the legislature referended by them, and it is self-executing.

Much stress is placed by respondents upon the decision of State ex rel. Standish v. Nomland, 3 N. D. 427, 44 Am. St. Rep. 572, 57 N. W. 85. That case construes § 61 of the Constitution. It does not, and ■manifestly could not, construe article 26, as that has been adopted at a very late date. That is a well-reasoned case, as applied to the construction of § 61. It has no application, however, in construing article 26, •for article 26 is entirely different from § 61; and it may further be observed that article 26 is just as much a part of the Constitution as § 61, and it is just as. much the duty of the court to give effect to the former as to the latter.

The case of Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595, Ann. Cas. 1917D, 1008, cited by respondent, is subject to the same objection as State ex rel. Gibson v. Richardson, supra. Article 2 of § 1 of the Washington Constitution, prior to its amendment, was substantially the same as § 25 of our Constitution before its amendment by article 26.

Article 2 of § 1 of the Washington Constitution was amended, so as to reserve part of the legislative power to the people, by the process of initiative and referendum. An examination of the same, as amended, discloses the same condition as exists in the amendment to the Oregon Constitution, to which we have above referred; that is, there is no provision in it, as in ours, that, when a measure is initiated, or an act of. the legislature referended, that the petition shall have printed thereon a ballot title, which shall fairly represent the subject-matter of the measure, etc.

Neither does it contain any provision for such extensive publicity as ours; for instance, the mailing of a copy of the initiated measure or referended act, to each voter, etc.

In the absence of providing for a ballot title, if an initiative measure, in the state of Washington were submitted or an act of the legislature were referended, and if the same were adopted by the people, at a proper election, and the constitutionality of such law was thereafter challenged, upon the ground that the title thereof embraced more than one subject, that question would likely have to be determined under § 19 of the Washington Constitution, which is as follows: “No bill shall embrace more than one subject, and that shall be expressed in the title.” That provision is the same, in substance, as § 61 of our Constitution.

In other words, in amending article 2 of § 1 of the Constitution of Washington, no provision was made, such as is contained in article 26 of our Constitution, which provides for a ballot title, and determines what it shall contain, thus, clearly making § 61 inapplicable to our initiative and referendum.

The organic law, as contained in article 26, is the organic law in this state, by which the validity of the title of an initiative or referendum act is determined, while that state is left, exclusively, to their § 19, to determine when the title to a bill is proper and constitutional, and that section when adopted, as our § 61, was intended to apply to acts of the legislatures, and not to the initiative and referendum; yet that state has no other provision to determine the constitutionality of a bill challenged, on the ground of failure of the title to comply with the requirement of the Constitution; and, hence, they determine the constitutionality of the initiative and referendum bills in that state, when challenged on the ground of no proper title, by their § 19, while in this state, under article 26, that subject is specifically taken care of, and it, as our organic law, governs and specifically states what must be in the title of an initiated measure or a referended act.

Both the state of Oregon and the state of Washington have statutory provisions regarding a ballot title for initiated measures and referended acts, as well as provisions for publicity, but they have no such provision in either of their Constitutions.

The act is next attacked on the ground that it is subversive of the so-called home-rule provisions of the Constitution, above mentioned. We think this contention cannot be sustained, and are further of the opinion that there is no contravention of the constitutional provisions relative to the authority conferred upon the county commissioners, to regulate the fiscal affairs of their county.

Section 170 of the Constitution relates to the management of the fiscal affairs of the county, by the chairman of the township boards thereof, when township organization has been adopted by a majority vote of the legal voters of the county voting at a general election. It contains other provisions not necessary to mention here.

Section 171 of the Constitution relates to the continuing of township organization, and provides that where such has been adopted, whether it shall continue, is a matter which may be submitted to the electors of a general election in the manner provided by law, and if a majority of all the votes cast upon such question shall be against said system of government, then the system of township organization shall cease, and the affairs of the county shall then be transacted by a board of county commissioners.

Section 172 is as follows: “Until the system of county government by the chairman of the several township boards is adopted by any county the fiscal affairs of said county shall be transacted by a board of county commissioners. ' Said board shall consist of not less than three and not more than five members, whose terms of office shall be prescribed by law. Said board shall hold sessions for the transaction of county business as shall he provided by law.”

Section 173 of the Constitution: “At the first general election held after the adoption of this Constitution, and every two years thereafter, there shall be elected in each organized county in the state, a county judge, clerk of court, register of deeds, county auditor, treasurer, sheriff and state’s attorney, who shall be electors of the county in which they are elected, and who shall hold their offices until their successors are elected and qualified.

“The legislative assembly shall provide by law for such other .county, township and district officers as may be deemed necessary, and shall prescribe the duties and compensation of all county, township and district officers.

“The sheriff and treasurer of any county shall not hold their respective offices for more than four years in succession.”

In Funk & Wagnalls, New Standard Dictionary of the English Language, we find the following definition of the word fiscal: “Fiscal— is a financial secretary or minister.” “Of or pertaining to treasury or public finances of a government; financial.” “Fisc — a treasury of a kingdom or a state; money chest.”

In the case of State ex rel. Wiles v. Heinrich, 11 N. D. 37, 88 N. W. 734, this court, speaking through Judge Young, said: “The board of county commissioners have the general superintendence of the fiscal affairs of the county and constitute a board of audit for all claims and demands against their counties, the amounts of which are not fixed by law.”

This statement is principally based upon § 1907 of the Revised Codes of 1899, which is as follows: “Board to superintend fiscal affairs of county. It shall superintend the fiscal affairs of the county and secure their management in the best manner. It shall keep an account of the receipts and expenditures of the county and on the first Monday of July annually it shall cause a full and accurate statement of the assessments, receipts and expenditures of the preceding year to be made out in detail under separate heads with an account of all debts payable to and by the county treasurer, and it shall have the same published in at least one newspaper in its county. If there is no newspaper in the county the same shall be posted up at the usual place of holding its sessions.”

Section 1907 of 1899 Codes, in substance, and with an amendment, with regard to the time and number of regular meetings of the board' of county commissioners, is incorporated in § 3276, Comp. Laws 1913, which defines the duties of the board of county commissioners, with, reference to fiscal affairs of the county.

At this point, it is well to note that § 172 of the Constitution names the fiscal affairs of the county as a subject-matter which shall be under the control of the board of county commissioners, while § 173 of the Constitution states that the legislative assembly shall prescribe the duties of the different county officers, and the officers of a subdivision of the county, such as township and district officers, etc. This would include county commissioners. Hence, the duties of the county commissioners with reference to the conduct of the financial affairs of their county are not defined nor set forth by the Constitution. It leaves that to be accomplished by legislation.

From what has been said, it must follow that the duties of the board of county commissioners are such as are defined and enacted by legislative enactment. Whatever powers they possess, with regard to conducting the fiscal affairs of their county, are derived from the authority of law enacted by the legislature, or the lawmaking power of the state.

The very power to designate official newspapers, and to publish their proceedings therein, is not a power possessed by them, by reason of any constitutional provision, or by any so-called home-rule provisions of the Constitution, but it is a duty imposed upon them by law, formerly by §§ 3307 and 3308, Comp. Laws 1913, and now by chap. 188.

It is self-evident that, if the legislature, and the people, by the initiative or referendum, have the sole power of defining, and by due enactment of law, saying what are the duties of the county commissioners, they have the power and authority to have those duties changed or to add new ones, or withdraw, discontinue, or take away a duty once granted to them; as, for instance, the repeal of §§ 3307 and 3308, by the enactment of chap. 188, in so far as those sections conflict with the latter enactment.

This amounts to no more than a change in the manner of exercising a duty imposed upon the board of county commissioners, by the legislative power, and, it having the right to impose the duty, has the right to make the change, and the authority for doing so is found in § 173.

Chapter 188, in requiring all official publications and the publication of legal notices in one official newspaper of the county, to be designated by the state publication and printing commission, is based upon sound public policy.

It is a certain and direct means of affording residents of the county an opportunity to know of the publication, and gain knowledge of such matters. Even when §§ 3307 and 3308 were in full force, no publi-, cations were required to be made therein, excepting those which were official, such as the official proceedings of the board of county commissioners, etc. It contained no requirement, nor was there any other law requiring publication of legal notices to be made in the official papers.

The result was, as we all know, that in the publication of many legal notices, such as mortgage foreclosure, summons, etc., publication thereof was, designedly, often made in some newspaper in a distant part of the county from where the person entitled to have notice resided. This has often resulted in great loss of property and property rights to the debtor, or the one entitled to receive such notice.

To have one official newspaper in the county in which all legal and official publications must be made is, to a large extent, to eliminate the evil and injustice which too often resulted from permitting legal publications to be made in any newspaper in the county. Eor this reason, • chap. 188 tends to preserve and protect property and property rights, and prevents them from being invaded or taken away, without notice or due process of law.

The respondents have invoked the protection of the 14th Amendment to the Federal Constitution. On this subject, it is only necessary to state that chap. 188 in no way contravenes that amendment.

Article 25 of the amendments to the Constitution amended § 89 thereof, so that amended it reads as follows: “The supreme court shall consist of five judges, a majority of whom shall be necessary to form a quorum or pronounce a decision, but one or more o£ said judges may adjourn the court from day to day or to a day certain; provided, however, that in no case shall ány legislative enactment or law of the state of North Dakota be declared unconstitutional unless at least four of the judges shall so decide.”

The powers of the state government being distributed in three branches, the legislative, executive, and judicial, each of such branches are supreme while acting within their own sphere. Whatever enactments of law may be made by the legislative authority of the state is the law, subject only to the limitations that it must not contravene the provisions of the state or Federal Constitution.

These constitute the only grounds upon which the validity of a legislative act may be attacked, and these are the only grounds upon which the respondents may be heard to attack chap. 188.

In order for this court to declare chap. 188 unconstitutional, it would be necessary under the Constitution as amended, for four judges of this court to concur in the opinion, which would declare that law to be unconstitutional.

The order appealed from is reversed.

Neither party shall recover any costs.

Robinson, J., concurs.

Robinson, J.

This is an appeal from an order sustaining a demurrer to the complaint which challenges the validity of the Printing Act (Laws 1919, chap. 188).

The act in question creates a commission and makes it the duty of the commission to designate in each county a newspaper which shall be the official newspaper of the county until its successor shall be chosen by vote, as provided by chap. 181, Laws 1919. This chapter does provide that “at the first general election . . . after the passage . . . of this act, and at the general election in each even-numbered year, . . . the legal voters in each . . . county . . . shall be entitled to vote for such newspaper in said county as such voter desires to be selected as the official newspaper.” Thus it appears the power given the printing commission to designate a newspaper is merely a temporary expedient; it continues only until the voters have a chance to express their choice. That effectually knocks out all the little merit there may be on the home-rule objection.

The statute -was passed by nearly a two-thirds majority in each house. The yeas and nays were entered on the journal. Then a referendum was filed against this and six other acts, which were all duly submitted to the voters at a special election. The submission was pursuant to this constitutional amendment: “The secretary of state shall cause to be printed and mailed to each elector a publicity pamphlet containing each measure, together with its ballot title, to be submitted at any election.”

The publicity pamphlet mailed to each registered voter contains a copy of the act, its title, its ballot title, with the arguments for and against it, and in the newspapers the act in question was probably discussed more than any other measure ever submitted to the voters, because so many papers were opposed to it. The result was that nearly 112,000 votes were cast for or against the act, and it was approved by a large majority vote. Hence it has been doubly passed and approved. As the history of the act clearly shows, no one was misled or deceived by reason of any defect in its title. It was passed at the same time as chap. 187, entitled: “An Act Providing for the Selection of One State, County, and Municipal Newspaper in Each County, Prescribing the Manner of Its Selection and Duties.” To that title and to chap. 187 there is no objection. The title to chap. 188 is very short. It is, in effect: An Act Relating to the Publication and Printing of Legal Notices; or, an Act Concerning a State Publication and Printing Commission and Prescribing Its Duties. The name of the commission does, to some extent, indicate the line of its duties. It is a commission in regard to printing and publication, and of course it must relate to legal notices and documents, and not to private matters. The title of the act is merely a suggestive name by which it may be called and known. It never should attempt to give the details of the act; it never should exceed two or three lines.

When any measure is submitted to the voters the official ballot contains a short ballot title, thus (S. B. 157 — State Publishing and Printing Commission) the regular title of the bill, and the bill itself — and that is all. And when that is shown there is no reason for any deception. The vote on the bill was: Yes, 59,364; No, 52,450. There can be no just claim that the lawmakers or any voter was misled or deceived, or that the procedure was in any manner deceptive. In the pamphlet mailed to each voter there is a long argument against the bill under this heading: “State Publication and Printing Commission Law — Senate Bill No. 157.” But there is not a word of opposition to the title or the manner in which the bill was passed by the legislative assembly. Indeed, such objections would have been trivial and futile. The bill itself was before the voters in plain English, and it was for them to vote yes or no.

Section 61 of the Constitution, relating to the title of a bill, was passed as a direction or mandate to the legislative assembly. It has been liberally construed. It is held as a limitation to prevent deception and incongruous legislation. However, there is no reason why it should apply to an act or a measure submitted to the people, who have power to amend, make, and unmake their Constitution. The purpose of the Constitution was not to place a limitation on the people themselves, but on those to whom they have delegated certain powers, so as to prevent an abuse of the powers.

The rule is that every act passed by one legislative assembly may be repealed or amended by the next legislative assembly; but that rule does not apply to any measure submitted to and approved by the people. It may not be amended or repealed, except by a two-third majority of all the members elected to each house. It is, in effect, a constitutional amendment, and as such it should be respected by the courts. Nothing would seem more grossly absurd than for the court, on a trivial objection to a matter of procedure, to hold void an act approved by nearly two thirds of the lawmakers, and then by a great majority of the voters.

A recent amendment to the Constitution indicates the people have come to learn that judges are not infallible, and it is well to limit the power to annul even an act of the legislative assembly. It is provided: The supreme court shall consist of five judges, and no legislative enactment shall be held void unless at least four of the judges so decide. To this there might well have been added that no measure submitted to and approved by the people shall be held void by any court. The power which courts have assumed, by a bare majority of one, to hold void acts of Congress and legislative enactments, may soon be a thing of the 'past. If the court have the power, by any majority, to hold void an act submitted to and approved by the people, the power is too dangerous and arrogant for use, except on occasions very extraordinary. The order appealed from is reserved.

Bronson, J., being disqualified, did not participate.