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the prerogative writs, will be regarded as an intermeddler. It appears by the information and more fully by the briefs of counsel in behalf of the relator, that the relator has suffered no wrongs peculiar to himself, but on the contrary the relator appears in this court as a champion of the state, and for the ostensible purpose of protecting govern

mental franchises from abuse."

Clearly therefore the right of the relators to maintain this proceeding must be founded upon the latter grounds above stated.

In State ex rel. Linde v. Taylor, 33 N. D. 76, 83, L.R.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1918A, 583, Judge Christianson, in the opinion of the court concerning this original jurisdiction, said:

"It is well settled that this jurisdiction will not be exercised to vindicate private or local rights regardless of their importance, but it is reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises, or the liberties of its people." While it is true that the relator in this case,

in his capacity of a citizen and taxpayer of the state, has a sufficient interest to invoke this court's prerogative jurisdiction as a relator, still the real plaintiff is the state. The private relator, in his capacity as a citizen and taxpayer, merely informs the court of the infringement which has been or is about to be made upon the sovereignty of the state, or its franchises or prerogatives, or the liberties of its people, and the court by virtue of the power granted by the Constitution commands that the suit be brought by and for the state, even though the attorney general may refuse to bring this action or consent to its institution.

"This transcendent jurisdiction is a jurisdiction reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises, or the liberties of its people; the state uses it to punish or prevent wrongs to itself or to the whole people; the state is always the plaintiff and the only plaintiff, whether the action be brought by the attorney general, or, against his consent, on the relation of a private individual under the permission and direction of the court." State ex rel. Bolens v. Frear, 148 Wis. 456, 500, L.R.A.1915B, 569, 134 N. W. 673, 135 N. W. 164, Ann. Cas. 1913A, 1147; State ex rel. Linde v. Taylor, 33 N. D. 84, L.R.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1918A, 583.

Under 157, Compiled Laws 1913, it is the duty of the attorney general to appear for and represent the state before the supreme court in all matters in which the state is interested as a party.

Under 3376, subd. 9, the attorney general and state's attorneys are the only public prosecutors, in all cases, civil and criminal, wherein the state, or county, is a party to the action.

It is therefore manifestly the proper practice in all cases where the exercise of the original jurisdiction of this court upon a prerogative writ is demanded, and where the state is the real plaintiff, to make the application by or through the consent of the attorney general, or, in the event of his refusal to act, to bring such fact to the attention of this court for its consideration in the allowance or granting of such writ.

The attorney general is the chief law officer of the state. Upon him is the duty imposed to appear for and represent the state in which the state is interested as the State.

Upon the refusal of the attorney general to institute the proceeding requested, the situation is as stated by Judge Bruce in the opinion of the court in State ex rel. McArthur v. McLean, 35 N. D. 212, 159 N. W. 847, wherein he said: "In the case at bar the attorney general of the state has expressed his willingness that the proceedings shall be brought, but has refused to bring them himself, as he considers that it is not a case in which his office should be concerned. The case, therefore, is similar to one in which an application has been made to the attorney general to institute the proceedings, but he has refused to do so, and where an application is made to this court by a private citizen to bring them. It is not, therefore, a case in which the state as a state is seeking to exercise its sovereign power and to assert its prerogative, but a case in which a private citizen and voter and a candidate for public office, who is more or less affected by the matter, seeks the protection of this court on the ground that the sovereign rights of the state or its franchises are after all the sovereign rights and franchises of all its citizens and that all of its citizens are interested in having the political and elective machinery of the state properly administered."

As stated in State v. Nelson County, 1 N. D. 101, 8 L.R.A. 283, 26 Am. St. Rep. 609, 45 N. W. 33, these prerogative writs are ordinarily issued upon motion of the attorney general; as chief law officer

of the state, upon whom the duty is imposed to represent and appear for the state when the state's interests are concerned, it is peculiarly proper that matters publici juris, affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people involving in some way the general interests of the state at large, and concerning which the prerogative writ of this court is sought, should be first addressed to his attention for his direct action or refusal to so act.

See State ex rel. Taylor v. Lord, 28 Or. 498, 31 L.R.A. 473, 43 Pac. 471.

It is true that the refusal of the attorney general to institute or to consent to the instituting of such proceeding does not prohibit this court from exercising its original jurisdiction in such cases, but it should be made to appear to this court, not only that the chief legal adviser of this state, and representing its interests, has been advised and has refused to institute the action for the state, but also that, nevertheless, under the facts presented, this court should take original cognizance of the subject-matter upon the relation of a private individual. State ex rel. Moore v. Archibald, 5 N. D. 359, 376, 66 N. W. 234; State ex rel. McArthur v. McLean, 35 N. D. 203, 159 N. W. 847; State ex rel. Twichell v. Hall, No. 3647, post, 459, 171 N. W. 213.

Furthermore, a very serious question is presented upon the proposition whether this court should take original jurisdiction of the subject-matter involved at this time upon the application as made by the relators therefor.

No right of the relators or of any citizen of the state, either personal or property, is immediately threatened with invasion or abrogation. Though the matter is affected with a great public interest and although it vitally concerns the fundamental law of this state, the sovereign powers of the state, its franchises or prerogatives, are not in any manner threatened with immediate infringement, whether the writ issue or not, unless it be premised that affirmative action will be taken by the legislative assembly to make such proposed amendments a part of the Constitution of this state.

To warrant the assertion of such original jurisdiction, the interests of the state, the threatened invasion of its franchises or its prerog

atives, or of the rights and liberties of its people, should be both primary and proximate, not indirect and remote, thereby creating such a contingency which requires the interposition of this court to preserve and protect the same. State ex rel. Moore v. Archibald, supra.

This court does not sit as a monitor for either the legislative or executive branches of our government. It neither advises nor rebukes contemplated action of a co-ordinate branch of the government. Its power necessarily is not only persuasive but compelling. The exercise of original jurisdiction in this matter at this time must necessarily commend by judicial intervention the state board concerning their action on the proposed amendments. This necessarily means that this court must either commend, interrupt, or interfere with the action of the legislative assembly thereupon.

Liberally this court has exercised its original jurisdiction in the issuance of prerogative writs. It has been extended sufficiently far. It should now be recognized and established that this court will not exercise its original jurisdiction in matters of this kind, beyond the limits herein stated.

2. Jurisdiction over the Subject Matter at This Time.

Again, the serious attention of this court is addressed to its very jurisdiction at this time over the subject-matter and to the judicial action necessarily involved in the cognizance or consideration thereof. This, in part, has been mentioned heretofore in this opinion. The primary question with which we are confronted is to determine. whether the initiation, submission, adoption and ratification of proposed amendments to the Constitution under the initiative power is fundamentally the exercise of a political or legislative power, or whether the acts of the agencies designated to accomplish such amendment are ministerial in their nature so as to present thereby a judicial question for the courts to review such acts during the course of the proceedings to accomplish such amendment.

It is well settled that the judicial power will not interfere in any action or proceeding which involves by such action or proceeding the exercise of a political or legislative action. The relators do not deny this general principle. They contend that the action of the state

board cannot be classed in any manner as legislative in its character. That it is ministerial and therefore subject to the review of this court. The question presented is not easily determined and is not free from many difficulties in the construction of the powers of the judiciary in connection with and over the co-ordinate legislative and executive de partments of our government in making a change in our fundamental law. The principal question involved also involves the corollary proposition of the right or power of the judiciary to interfere with any proceeding or action, made pursuant to statutory direction, and not contrary thereto, when the effect thereof is to establish a judicial admonition, advice or inhibition of contemplated action by the legislative assembly, a co-ordinate department of the government. If the initiation, submission and adoption of the proposed amendments concerned is from beginning to the end, from the time of the initiative petitions signed by the people to the time of ratification by the legislative assembly, an undertaking, through the exercise of the sovereignty of the people, in a legislative way to formulate the fundamental law of the state, or an amendment thereof, is legislative in its character, and the agencies designated by the sovereign power to accomplish such change or amendment of the fundamental law, are acting within and pursuant to a power conferred, it is clear that the judiciary has no power to interfere.

This broad principle is not only fundamental, but it must also be recognized as basically essential in the preservation of our tripartite theory of government and in the prevention of any judicial usurpation or interference in any legislative proceeding. 4 Federalist, p. 329; State ex rel. Taylor v. Lord, 28 Or. 498, 31 L.R.A. 482, 43 Pac. 471; Hawkins v. Governor, 1 Ark. 570, 33 Am. Dec. 346; State ex rel. Twichell v. Hall (No. 3647) post, 459, 171 N. W. 213; Ohio ex rel. Erkenbrecher v. Cox (U. S. D. C. Ohio, Jan. 4, 1919) 257 Fed.

334.

The relators, however, contend that the initiation and adoption of such proposed amendments is not in any sense a legislative act.

There is a noticeable lack of harmony or uniformity among the authorities and in decisions concerning what constitutes a proceeding legislative in its character so as to inhibit judicial interference. To some extent this lack of harmony can be explained by drawing a sharp

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