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 council 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. e., that 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 selfexecuting 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, and 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 case." 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