which there will always be a diversity of opinion. When the Legislature has declared it is necessary, etc., a small per cent of the people, viz., five per cent, would have the right, in the first instance, to challenge the correctness of its decision by signing a petition to refer; it would then be necessary for the Secretary of State to determine the question; if he did not agree with them, it could then be taken to the courts as in this case, but if he agreed with them, and no one took sufficient interest in it to attempt to have him enjoined, it would then go on the ballot at the next election, and in case the people rejected it, yet later on or during the interim some one sought to have it recognized and enforced as an existing law, and the courts held that the declaration of the legislature was true, and for this reason it was not a subject to be referred, I take it that it would be a valid law all the time, and all subsequent actions by the petitioners, the Secretary of State, the election officials and even the electors in voting to reject it, would be a nullity, for if it was not a subject to be referred and was a valid law when this was attempted, it would thus remain regardless of this method of procedure in attempting to get rid of it. In Town of South Ottawa v. Perkins, 94 U. S. at page 267, 24 L. Ed. 154 it is said:

"That which purports to be a law of a State is a law, or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. And whether it be a law, or not a law, is a judicial question, to be settled and determined by the courts and judges.

*

*

This was quoted with approval in Arkansas Tax Commission v. Moore, 103 Ark. 48, wherein it was held that the question of necessity, etc., was for the legislature to determine. See also Wilkes Co. v. Coler, 180 U. S. 506, 45 L. Ed. 642, 21 Sup. Ct. 458, and Rogers v. State, 72 Ark. 565, 82 S. W. 169. The same uncertainty would

apply to every law of this nature during the entire ninety days following the adjournment of every session of the general assembly, and where questions of fact are involved, concerning which there may always be a difference of opinion. Other illustrations could be given, but these are sufficient to convince me that had the legislature and the people thus intended they would have said so in language which would not be susceptible of a different, and, as I view it, a more rational construction.

Mr. JUSTICE WHITE Specially concurring:

I concur in the affirmance of the judgment of the trial court, but am unwilling to approve all the language of Chief Justice Gabbert in disposing of the matter.

The controversy involved is between two agencies of the legislative department of the government, in the exercise or attempted exercise of power, and were it not for certain reasons, which I shall presently state, I would be inclined to the view that a proper construction of the initiative and referendum provision of the Constitution did not invest the General Assembly with the power, for the purposes of legislation, to finally determine whether a legislative act was of the character that could not be referred to a vote of the people. On the contrary, I would, perhaps, hold with the Supreme Court of Washington, State ex rel. Meath, 84 Wash. 302, 147 Pac. 11, -that the declarations of the general assembly in that regard are subject to review by the courts, and whenever a controversy arises between the two branches of the legislative department as to the correctness of declarations of that character the duty devolves upon the courts to determine the question. It is a matter of common knowledge that the initiative and referendum provision of our Constitution was taken from the constitution of the State of Oregon, and had, prior to its adoption here, been construed by the highest court of that state. Kad

derly v. Portland, 44 Ore. 118, 74 Pac. 710, 75 Pac. 222. It is also apparent that Oregon had taken it from the constitution of South Dakota, where it was adopted in 1898, and had previously been construed in that state. State ex rel. v. Bacon, 14 S. D. 394, 85 N. W. 602. In each state the highest court had held that in the process of legislation it was exclusively within the power of the General Assembly to determine whether a proposed act was necessary for the immediate preservation of the public peace, health or safety; and if it determined that it was, the act was not subject to referendum, and the courts had no power to review the action of the general assembly in the premises. Subsequent to those decisions the initiative and referendum was written into the Constitution of this State. It would, therefore, seem that under the well established rule that when a state adopts the constitutional or legislative provision's of another state, it also adopts the prior construction given to such provisions by the decisions of the courts of the state from which they are taken, we should follow the aforesaid decisions of the courts of Oregon and South Dakota. Bradbury v. Davis, 5 Colo. 265; Stebbins v. Anthony, 5 Colo. 348; In re Shapter's Estate, 35 Colo. 578, 85 Pac. 688, 6 L. R. A. (N. S.) 517, 117 Am. St. 216; Lace v. People, 43 Colo. 199, 203, 95 Pac. 302; Hallett v. Alexander, 50 Colo. 37, 50, 114 Pac. 490, 34 L. R. A. (N. S.) 3281, Ann. Cas. 1912B, 1277.

It is true the rule is not inflexible-Davis Iron Works Co. v. White, 31 Colo. 82, 71 Pac. 384,-nevertheless, when the adopting state has, as here, through its highest court, placed the same construction upon the provisions that had been given them by the decisions of the court of the state from which they are taken, it would seem, in order to have reasonable stability in the fundamental law and certainty in government, we should accept the matter as finally settled. Such construction was given the consti

tutional provision in question by this court in In re Senate Resolution, 54 Colo. 262, 130 Pac. 330. It may, perhaps, be true that the questions propounded in that case might have been answered without expressing an opinion. upon the referendum clause of the Constitution, and that technically the matter was not involved in the questions propounded. However, in a unanimous decision this court expressly stated that the matter was included in the questions propounded and that it was necessary to determine the same. Clearly, under such circumstances, it is no more than mere assertion to say that the language of this court in determining that question was obiter. Furthermore, it must be presumed that the people of the state in adopting the constitutional provisions were cognizant of the construction the language had already received; and were conversant also with the rule which is applied in considering the constitutional or legislative provisions adopted from another state. So, if the people desired to have the courts determine the question as to whether or not a legislative measure was subject to reference, they could and should have embodied in the constitutional provision the express declaration that the courts should do so. This they did not do, and I am unable to persuade myself that we should disregard well established rules of construction, and our own decision, and ascribe a new meaning to this constitutional provision. Unless the course I have indicated herein is pursued, the judiciary, I fear, will soon become an arbitrary, governmental agency, and justice be administered, not according to the law with consistency, equality and justice, but according to the capricious and varying judgment of those who, for the time being, are entrusted with the duty of administrating it.

SCOTT, J., dissenting.

The principle of direct legislation is comparatively new in our government and does not now obtain in a majority of the states. For this reason, what is known as the initiative and referendum constitutional provision has been construed by but few of our courts, and, as applied to the particular question involved in this case, the courts that have determined it are about equally divided. Hence, there cannot be said to be a weight of authority, considered from the standpoint of numbers of jurisdictions, in favor of either of the different conclusions.

Therefore, the provision of the Constitution should be construed in the light of the intendment of the people who adopted it, and in view of the improvement in popular government proposed to be accomplished by it.

At the beginning of the agitation for this reform, there was a popular belief among the people that by the strictly representative plan of expressing the popular will, the people were too frequently misrepresented and often betrayed. Indeed, so intense was this feeling that there arose a common cry that representative government was a failure.

There was, without dispute much to justify this feeling. Senatorial elections by the legislature in many instances had become a national disgrace. Refusal to enact laws repeatedly demanded by the people through their party platforms and otherwise, instilled the belief that corruption was rife, and that legislators were subject to the influence of privileged interests.

The refusal of legislatures to submit constitutional amendments, popularly demanded, which in most cases required a two-thirds vote in each house of the assembly, added to the feeling of wrong and injustice.

Out of all this there grew a conviction that the electorate was too distantly removed from their government,