People ex rel. Moore v. Perkins

137 P. 55, 56 Colo. 17, 1913 Colo. LEXIS 307

Opinions

Mr. Justice Hill

delivered the opinion of the court:

This is an action in quo warranto in the name of the People on Relation of Mareellus P. Moore. Its object is to test the title of the defendants in error to the offices of commissioners of the city and county of Denver. By this method it is sought to have declared void the enactments which purport to create the so-called, commission form of government, and the nonpartisan system of election for this city and county. The trial court sustained the validity of these enactments, as well as the validity of the election of the defendants in error as such, commissioners under the nonpartisan system of elections provided for therein. There is no dispute concerning the facts. They disclose that a charter had been framed and was adopted by the people of the city and county of Denver in March, 1904, in conformity with the provisions of article XX of the state constitution. This charter provides for a board of supervisors consisting of seven members to be elected at large, also a board of aldermen of not less than sixteen nor more than twenty-one, to be elected by wards. It also provides for the election of a mayor and certain other executive and judicial officers, and for the appointment of certain other executive officers. In other words, it provides for a complete system of municipal government by what has heretofore been recognized as the mayor form, consisting of two legislative bodies, with a power of veto resting in the mayor, etc. The plaintiff in error, prior to the attempted change, was an alderman duly qualified and the term for which he was elected has not expired.

Upon February 14th, 1913, a special election was held within and for the city and county of Denver, at which were submitted, separately, by prior initiation of certain electors in the manner, so far as details are concerned, as provided for by the .charter, two certain propositions in writing. Each was designated therein “Amendment to the charter of the city and county of Denver.” One of these propositions by repeal of certain sections of the old charter, the amendment of others, and the adding of new sections, purports to make certain chánges in the form of government from the mayor form so-called, as above described, to the commission form • so-called, with five commissioners to take the place of the mayor and legislative council; they are also to perform certain other duties. The other purports, by the same method, to enact whatds commonly known as the non-partisan system of election; this includes what is called the preferential system of voting. The result of the election was for the adoption of each of these designated amendments, and the regular procedure provided for by the then charter appears to have been followed in declaring them adopted. Upon May 20th following, as provided for in one of the amendments, another election was held. This was conducted under what is termed the non-partisan system of elections as authorized in the other amendment. At this election the defendants in error, except James F. Markey, were, in the manner provided by this amendment, duly elected to the offices of commissioners. Mr. Markey was elected to the office of auditor, which had been created by one of the amendments. They all qualified and assumed to - enter upon the duties of their respective offices. This resulted in the ouster of the plaintiff in error and certain other officers then holding certain offices in existence under certain sections of the old charter, which sections the latter enactments purport to amend or repeal.

It is claimed that these so-called amendments are invalid for the reasons following: First, that they constitute a new or revised charter, which could only be submitted or adopted through the medium of a charter convention. Second, that if they are amendments that the manner of submission to the electors was such as to afford no opportunity to the voters of lawfully exercising their right of franchise and that they were consequently not legally adopted. Third, that the call for the election at which they were submitted was not published as required by the constitution. If these enactments are amendments to the charter which was in existence at the time of their purported adoption, it becomes unnecessary to consider the question of how a new charter can be secured, for which reason we will first consider the question of whether they are amendments. The authority for the adoption of the charter which these enactments purport to amend, as well as the manner in which it can be amended, is to be found in article XX of our state constitution. This court has repeatedly held that this article is a grant of power to the inhabitants of the city and county of Denver, and that it authorizes them to do what it specifically states they can do and such other matters as must be necessarily implied from the language used.

The material parts of sections 4 and 5-necessary to be considered in this controversy read as follows:

“Sec. 4. The charter and ordinance's of the city of Denver as the same shall exist when this amendment takes effect, shall, for the time being only, and as far as applicable, be the charter and ordinances of the city and county of Denver; but the people of the city and county of Denver are hereby vested with and they shall always have the exclusive power in the making, altering, revising or amending their charter and, within ten days after the proclamation of the governor announcing the adoption of this amendment the council of the city and county of Denver shall, by ordinance, call a special election, to be conducted as provided by law, of the qualified electors in said city and county of Denver,, for the election of twenty-one taxpayers who shall have been qualified electors within the limits thereof for at least five years, who shall constitute a charter convention to frame a charter for said city and county in harmony with this amendment. Immediately upon completion, the charter so framed, with a. prefatory synopsis, shall be signed by the officers and members of the convention and delivered to. the clerk of said city and county who shall publish the same in full, with his official certification, in the official newspaper of said city and county, three times, and a week apart, the first publication being with the call for a special election, at which the qualified electors of said city and county shall by vote express their approval or rejection of the said charter. If the said charter shall be approved by a majority of those voting thereon,' then two copies thereof (together, with the vote for and against) duly certified by the said clerk, shall, within ten days after such vote is taken, be filed with the secretary of state, and shall thereupon become and be the charter of the city and county of Denver. But if the said charter be rejected, then, within thirty days thereafter, twenty-one members of a new charter convention shall be elected at a special election to be called as above in said city and county, and they shall proceed as above to frame a charter, which shall in like manner and to the like end be published and submitted to a vote of said voters for their approval or rejection. If again rejected, the procedure herein designated shall be repeated (each special election for members of a new charter convention being within thirty days after each rejection) until a charter is finally approved by a majority of those voting thereon, and certified (together with the vote for and against) to the secretary of state as aforesaid, whereupon it shall become the charter of the said city and county of Denver and shall become the organic law thereof, and supersede any existing charters and amendments thereof.”

“Sec. 5. The citizens of the city and county of Denver shall have the exclusive power to amend their charter or to adopt a new charter, or to adopt any measure as herein provided;

“It shall be competent for qualified electors in number of not less than five per cent of the next preceding gubernatorial vote in said city and county to petition the council for any measure, or charter amendment, or for a charter convention. The .council shall submit the same to a vote of the qualified electors at the next general election not held within thirty days .after such petition is filed; whenever such petition is signed by qualified electors in number not less than ten per cent of the next preceding gubernatorial vote in said city and county, with a request for a special election, the council shall submit it at a special election to be held not less than thirty nor more than sixty days from the date of filing the petition; Provided, That any question so submitted at a special election shall not again be submitted at a special election within two years thereafter. In submitting any such charter, charter amendment or measure, any alternative article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others. Whenever the question of a charter convention is carried by a majority of those voting thereon, a charter convention shall be called through a special election ordinance as provided in section four (4) hereof, and the same shall be constituted and held and the proposed charter submitted to a vote of the qualified electors, approved or rejected, and all expenses paid, as in said section provided.

‘ ‘ The clerk of the city and county shall publish, with his official certification, for three times, a week apart, in the official newspaper, the first publication to be with his call for the election, general or special, the full text of any charter, charter amendment, measure, or proposal for a charter convention, or alternative article or proposition, which is to be submitted to the voters. Within ten days following the vote the said clerk shall publish once in said newspaper the full text of any charter, charter amendment, measure, or proposal for a charter convention, or alternative article or proposition, which shall have been approved by a majority of those voting thereon, and he shall file with the secretary of state two copies thereof (with the vote for and against) officially certified by him, and the same shall go into effect from the date of such filing. He shall also certify to the secre tary of state, with the vote for and against, two copies of every defeated alternative article or proposition, charter, charter amendment, measure or proposal for a charter convention. * * *

“No charter, charter amendment or measure adopted or defeated under the provisions of this amendment shall he amended, repealed or revived, except by petition and electoral vote. ’ ’

It will be observed from the language used in both sections 4 and 5 that the people of Denver were given the exclusive power to amend their charter. Section 5 in substance provides that it shall be competent for qualified electors in number not less than five per cent, etc., to petition the council for any measure or charter amendment or for a charter convention. This is followed with, a method as to what shall then be done. As we interpret the language there used, it means that they may petition for any amendment; that in the manner used the word “amendment” is unqualified and unlimited, and that they are entitled in this manner to have submitted anything included within the definition of the word “amendment” unless there is something to be found elsewhere in article XX which would tend to limit or confine its meaning to a narrower scope. We have been unable to find anything elsewhere in the article which would tend to sustain such a claim. This limits the question as to whether these two amendments constitute a new charter or whether they are in fact amendments to the existing charter. We are of opinion that they come within the definition of the word “amendment” when unlimited in its scope as here used. Webster’s New International Dictionary, 1911 edition, defines the word “amendment” “In public bodies; any alteration made or proposed to be made in a bill or motion by adding, changing, substituting or omitting.”

When the former charter is considered in connection with the changes brought about by these enactments, it is convincing of the facts that they are amendments only. A new charter would be an instrument complete within itself. When these amendments are considered alone they fall far short of such an instrument and will be found to cover but a portion of the questions necessary to be included in a charter for the government of any municipality. For instance, they fail to cover or change the question of the appointment of many appointive officers and employees provided for in other portions of the charter; they fail to make any provisions concerning their duties or for their salaries; such matters as civil service, the fire and police department, the public health, the fiscal management of municipal affairs, finances, public utilities and the control thereof, franchises and public improvements, or, most of them are left untouched with the exception of a few instances where it is provided that a commissioner shall become the head of certain departments which were heretofore in control of certain boards or some elective officer. The charter prior to amendment appeared to cover all questions of municipal government. It consisted of approximately three hundred sixty sections. The two amendments under consideration amend approximately twenty sections, add twenty new sections and repeal about twenty sections, possibly by implication certain paragraphs in some few other sections, leaving approximately three hundred sections untouched and without the greater part of which no charter for any municipality would be anywhere near complete.

It is true that the amendments are, in a way, a departure from the system heretofore provided for the management of the municipality. In this respect, they are different and are new, so far as the number of officials is concerned; but regardless of this they are germane to the subject of municipal government, that is the only proper subject embodied in the charter, and they pertain to and effect this subject, each covering a separate and distinct branch thereof. This brings them within practically all the definitions of the word “amendment” as defined in all the authorities cited. The fact that in a way they present something new or different in the management of municipal affairs in no way militates against their being amendments. It is common knowledge that commission government in some form, has, within the past few years, been adopted in many cities in the United States, but regardless of this they still continue to be municipalities and their charters pertain only to local self-government. "When these changes are analyzed it will be found that the difference is not so great as the term used might imply; for instance, under the old system there" were two legislative bodies consisting of about twenty-five members; under the new, but one legislative body consisting of five members. In each instance they are elected by the people. The new body enacts ordinances, etc., the same as the old; in this respect their powers and duties are identical. Under the old system a mayor was elected by the people' with a power of veto; under the new system the commissioners elect one of.their number as mayor, but without any power of veto. Under the old system certain city offices were created with the incumbents thereof designated to perform the duties pertaining to certain county and precinct offices, as provided by article XX; while under the new system the commissioners are designated to perform the duties pertaining to most, if not all, of these county offices and the number of city offices wherein the incumbents were designated to perform the duties of county and precinct officers has been- materially reduced. It will thus be observed that about the only changes of any consequence are the reduction in the number of officials heretofore provided for the management of the city’s affairs and the withdrawal from the mayor of the power of veto, but in a way this power has been vested in three members of the commission, as that number can defeat any proposed legislation.

In Livermore v. Waite, 102 Calif. 113, 36 Pac. 424, 25 L. R. A. 512, cited by counsel for plaintiffs in error, it is said, “the significance of the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. ’ ’ This covers the amendments under consideration. The lines of the original instrument cover the question of local self-government for the city and county of Denver. The amendments include such additional changes within the lines of the subject covered by the original instrument, viz., local self-government, as are thought will improve or better carry out the purposes for which it was framed.

By the adoption of article XX to our state constitution, we embodied therein radical changes by consolidating the city and county of Denver and allowing it to designate the persons therein who should perform the duties pertaining to county offices, as well as granting to it the right to make its own charter, a power theretofore resting in the legislature. The validity of this amendment has been sustained. — People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. 34; People v. Cassiday, 50 Colo. 503, 117 Pac. 357.

In Denver v. Hallett, 34 Colo. 393, 83 Pac. 1066, as well as in. Londoner v. People, 52 Colo. 15, 119 Pac. 156, we held that article XX was intended to grant home rule to the city and county of Denver and other municipalities, and to bestow, upon them every power possessed by the legislature in making their charter. This being true, if the matter was still in the hands of the legislature and a legislator was drafting the title to a bill concerning this subject, if he followed the repeated suggestions of this court, he would make it broad enough upon the general subject to include all appropriate matters pertaining thereto. In such case any matter pertaining to local self-government covered in the general title would be germane by way of amendment.

This court, as well as the court of appeals, has repeatedly sustained sundry and different kinds of amendments to the former charter, some of which made radical changes in the management of its affairs. — Cunningham v. Denver, 23 Colo. 18, 45 Pac. 356, 58 Am. St. Rep. 212; In re City of Denver, 18 Colo. 288, 32 Pac. 615; Darrow v. People, 8 Colo. 426, 8 Pac. 924; Carpenter v. People, 8 Colo. 116, 5 Pac. 828; Brown v. City of Denver, 7 Colo. 305, 3 Pac. 455; City of Denver v. Barron, 6 Colo. App. 72, 39 Pac. 989.

It should also be borne in mind that in its method of enacting laws and amendments thereto, the legislature is limited by certain restrictions contained in the constitution. Article Y provides that no law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house so as to change its original purpose. Also, that no bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title, but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed. No such provisions are to be found in article XX in providing for initiated amendments to a charter. This is further evidence of the correctness of our conclusion that the word “amendment” as therein used was intended to be unqualified and unlimited in its scope.

Article XX authorizes the city and county of Denver to make its charter, which in a sense is its constitution, concerning local affairs; the state constitution provides the method by which it can be amended. This does not include the restrictions placed upon the legislature in the enactment of laws, or any restrictions other than the word “amendment” would imply. This makes the rules pertaining to amendments to. constitutions more applicable to those under consideration, than amendments pertaining to general laws; such being the case, the principles recognizedby this court in Nesbit v. The People, 19 Colo. 441, 36 Pac. 221, are applicable, wherein Mr. Justice Elliott, in speaking for the court, calls attention to this distinction and the reasons therefor, as follows:

“The power of the general assembly to propose amendments to the constitution is not subject to the provisions of article 5 regulating the introduction and passage of ordinary legislative enactments. A proposed amendment to the constitution need not be restricted, like an ordinary legislative bill, to a single subject; the only restriction is, that ‘ amendments shall not be proposed to more than one article of this constitution at the same session.’ Const., art. 19, sec. 2. It is not essential that the subject of a proposed amendment shall be expressed in its title; a proposed amendment need not have any title except as it designates the article of the constitution to be amended. In changing a proposed amendment to the constitution during its passage through either house, it is not necessary, that such change should be printed, nor that the original purpose of the proposed amendment should be strictly adhered to.—Koehler v. Hill, 60 Iowa 543.

“Section 2 of article 19 prescribes the method of proposing amendments to the constitution, and no other rule is prescribed. It is not, therefore, by the ‘legislative’ article, but by the article entitled ‘amendments,’ that the legality of the action of the general assembly in proposing amendments to the constitution is to be tested. Article 19 is sui generis; it provides for revising, altering and amending the fundamental law of .the state, and is not in pari materia with those provisions of article 5 prescribing the method of enacting ordinary statutory laws. The distinction is obvious. When an ordinary legislative bill, free from constitutional objection, is introduced and passed by both houses of the general assembly, as provided by article 5, it becomes, when approved by the governor (or without his approval when passed by a two-thirds vote of both houses), a valid and binding law; thus, an act of ordinary legislation is fully and finally consummated, and thus a statutory law is brought into existence, by virtue of the power vested in the legislative department of the government.

“But in proposing an amendment to the constitution, the action of the general assembly is initiatory, not final; a change in the fundamental law cannot be fully and finally consummated by legislative power. Before a proposed amendment can become a part of the constitution, it must receive the approval of a majority of the qualified electors of the state voting thereon at the proper general election.. When thus approved it becomes valid as part of the constitution by virtue of the sovereign power of the people constitutionally expressed. ’ ’

In Falconer v. Robinson, 46 Ala. 340, it was held that an act is amended when it is in whole or in part permitted to remain, and something is added to or taken from it, or it is in some way changed or altered to make it more complete or perfect, or to fit it the better to accomplish the object or purpose for which it was made or some other object or purpose.

In Cantini v. Tillman, 54 Fed. 969 (C. C.), it is said :

“Nothing is more common than to amend by striking out one section and by inserting another, or by striking out several sections and by inserting one or several; and if it be competent to amend by striking out and insert ing one, two, three, four sections, clearly it is competent to -strike out all the sections, and to insert others, in pari materia. Striking ont all after the enacting words, and inserting, is nothing but an amendment, and is governed by the same rules as other amendments.” See also Hammond v. Clark, 136 Ga. 313, 71 S. E. 479, 38 L. R. A. (N. S.) 77; Brake v. Callison, 122 Fed. 722 (C. C.); State v. Wright, 14 Ore. 365, 12 Pac. 708.

A proposed change from the commission form to the mayor form was under consideration in State ex rel Hindley et al v. Superior Court, 70 Wash. 352, 126 Pac. 920. The city of Spokane had by charter convention adopted the commission form of government; thereafter the requisite number of citizens who desired to go back to the mayor form petitioned the council to call a special election for that purpose; they refused. The court held the method which controlled was provided for in their charter. The portion involved reads:

‘ ‘ This charter may be amended by a majority vote on such amendments. The provisions of this charter, with, respect to submission of legislation to popular vote by the initiative, or by the council of its own motion, shall apply to and include the proposal, submission and adoption of amendments.”

In that case, as here, it was urged that amendments referred to and provided for in their charter were only such revisory or supplemental changes as the showing of the present charter might suggest, and should not be held to refer to amendments which alter or annul the basic plan or principle upon which the city government was founded. This contention was not sustained. The commissioners who for this reason had refused to call the election were compelled to do so. Without being understood as approving or rejecting all the reasons given, we are of opinion that the conclusion reached by the Wash ington court was sound, and that there, as here, where the word “amendment” is used without limitation that any matter which is germane to the principal subject, to-wit, that of municipal government, is proper to be submitted as an amendment. The case of State ex rel v. City of Portland et al, 65 Ore. 273, 133 Pac. 62, is also relied upon by defendants in error, but upon account of the difference between their constitution and charter provisions and ours we think it is unnecessary to attempt to apply its principles to the facts under consideration.

In City and County of Denver et al v. New York Trust Company et al, 229 U. S. 123, 57 L. Ed. 1101, 33 Supreme Court Reporter 657, the supreme court of the United States sustained the validity of section 264a, which was an amendment to this charter initiated by the people and voted on at the May, 1910, election. This section was in relation to certain public utilities; it created a public utilities commission and designated its first members instead of leaving them to be elected in accordance with the provisions of section 198 of the charter; it also prescribed a different mode of acquiring a municipal water plant than that provided in article IX of the charter. It authorized the issuance of bonds and contains many other provisions upon the water subject. The voter was required to accept or reject it in its entirety; he was given no opportunity to vote for or against its different provisions, or for or against the commissioners named in the act. In commenting upon this subject the court said:

“But it may be added that we think all the provisions of the amendment have such a relation to the principal subject, namely, the public utilities of the city, as to permit their inclusion in a single amendment. Of the other two branches of this objection it is enough to say that the amendment supersedes pro tanto the original provisions of the charter with which it is not in accord. The pur pose in adopting it was to introduce something new, — -to make a change in existing provisions, — and being adopted conformably to the constitutional and charter requirements, the new or changed provisions became at once a part of the charter, thereby supplanting or modifying the original provisions to the extent of any conflict.”

We are not unmindful of the language used in this case which counsel for plaintiff in error claim sustains their contention that this is a new or revised charter. It is:

“In the briefs some reference is made to Speer v. People, 52 Colo. 325 (122 Pac. 768), where the supreme court of the state recently had before it a proposed amendment radically and extensively changing the form of the city government. The opinions rendered in the case disclose some differences of opinion upon the question whether what was proposed could be regarded as a mere amendment, but the question was not decided and nothing was said in the opinions that tends to sustain the objection now made to § 264a.”

By this language we do not understand that the question here was under consideration in that case, or that it was meant to intimate that a change could not be made by amendment from the mayor form to the commission form. According to our views the language hereinabove first quoted would indicate that the court was of opinion that such changes could be made, for the reason that in referring to section 264a it states, ‘ ‘ The purpose in adopting it was to introduce something new, — to make a change in existing provisions.” As we understand it, the object of all amendments is to make changes, something different, or something new, or, to eliminate something if desired.

The contention that the manner of their submission was such as to afford no opportunity to the voters of law fully exercising their right of franchise, is not well taken. The claim that the two amendments, by their terms, are made inter-dependent so that neither may be effective unless both are adopted, is not altogether sustained by the record. The adoption of the commission government amendment does not appear to be dependent upon the adoption of the nonpartisan election amendment. It is true that its last paragraph says:

“The foregoing amendment shall not go into effect until at the same election when it is adopted or at some subsequent election an amendment shall be adopted providing for commissioners to assume the duties herein provided for, and designating the time when said commissioners shall take office, and it shall then go into effect when said commissioners do take office.”

This means that it shall not take effect until some provision be made for the election of commissioners, and not then until they shall assume the duties of their offices. In this respect this amendment was not self-executing. We do not understand that this fact makes it void.—8 Cyc. 752; Ex parte Wall, 48 Calif. 279, 17 Am. Rep. 425.

It is true, as contended, that the adoption of the first portion of the nonpartisan election amendment, vis., that providing for the election of commissioners, was contingent upon the adoption of the commission government amendment; we do not understand that this makes it void ah initio.

In Dillon on Municipal Corporations, 5th Ed., Yol. 2, at page 905, it is said:

“Municipal ordinances, otherwise valid, may, like an act of' the legislature, be adopted to take effect in future and upon the happening of a contingent event.”

In Cooley Constitutional Limitations, 7th Ed., at page 164, the author states:

“But it is not always essential that a legislative act should be a complete statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event.”

In State v. Noyes, 30 N. H. 279, it is said:

“It is not at once apparent .that there can be any sound objection to the enactment of laws to take effect upon the occurrence of future events, such as the legislature may prescribe. ’ ’

In Pueblo County v. Smith, 22 Colo, at page 541, 45 Pac. 360, 33 L. R. A. 465, this court said:

“It will be conceded that the powers conferred upon the legislature to make laws cannot be delegated to any other body or authority, except as the principle may be modified by the second maxim. It is, however, not essential that the law should take effect immediately upon its leaving the hands of the legislature. Its operation may, under certain limitations, be made to depend upon a contingency. ’ ’

To the same effect in principle are: People ex rel Rhodes v. Fleming et al, 10 Colo. 553, 16 Pac. 298; State v. Parker, 26 Vt. 357; Bull v. Read, 13 Grat. (54 Va.) 78; Burnside v. United States, 7 Cranch 382, 3 L. Ed. 378; Peck v. Weddell, 17 Ohio St. 271.

It is claimed that the form of the ballot violates the provisions of section 179 of the charter which provides that the official ballot shall, by proper words, show the nature of the instrument to be voted on, and shall give to each voter the right to place a cross mark upon his ballot showing clearly his intention to vote for or against any measure, charter amendment, proposal for a charter convention or any ordinance, and, in case any separate or alternative proposition be submitted the ballots shall be prepared so as to enable the voter to express his intention in regard to each proposition. By this method it was intended that each voter should have the right to vote for or against each measure, charter amendment, or ordinance, or for or against a charter convention. We think the substance of this section was complied with in this respect. The fact that the going into effect of a portion of one of the amendments was contingent upon the adoption of the other, did not make it a noncompliance with this section. Whether when applied to a portion of the one amendment it would be a mere futile and senseless procedure as contended for by counsel, is a matter with which we have no concern. By the adoption of article XX the whole people of the state saw fit to delegate to a very limited number of the inhabitants of the city and county of Denver the power to initiate proposed amendments to their charter. The authorities all seem to hold that the going into effect of such an amendment can be made contingent upon the happening of other events. In case this small per cent of the electors is enforcing futile and senseless proceedings, and will persist in so doing, as counsel argue, the remedy lies with the people to amend the constitution in a manner which will prevent it. This court is not possessed of that power. In The People v. Cassiday, supra, in referring to article XX, which grants this privilege, we said:

“It is not only a part of the constitution, but it is there to stay, until the authority which voted it in shall vote it out. It, as any other part of the constitution, is to be given force and effect according to its plain intent, purpose and meaning.”

It is claimed that the language upon the ballot submitting the amendment providing for commission form of government is calculated to mislead the voter. An examination of the ballot when considered with the result of the election shows this contention to be incorrect. The ballot discloses that there were four separate and distinct propositions submitted. The first was for or against a nonpartisan system of election. The second was for or against initiated amendment that gives immediate nonpartisan commission government to the city and county of Denver. The third was for or against the holding of a charter convention to adopt a non-partisan commission form of government for the city and county of Denver. (The validity of such a designation we give no opinion concerning.) The fourth pertains to the property and rates of a telephone company. The electors voted to adopt the first, second and fourth, rejecting the third. It is not contended that the vote upon each was not sufficient to disclose an intelligent expression of the people upon these questions, though the submission clause to the amendment concerning commission government might appeal to us as disclosing a strong partiality for the adoption of that measure, and to a certain extent be unfair in its caption, or was somewhat in the manner of a campaign document, as counsel suggest. It is not alleged that it misled any voter, but to the contrary it stands practically admitted that there was a decided expression by the electors upon all of these questions. This same contention was raised in People v. Sours, supra, pertaining to the title under which article XX of the state constitution was submitted, in which case it was said, “There is no proof that any elector was deceived by the title under which the amendment was submitted.” Not only is this the case here, but the record shows that 26,842 votes were cast for or against this amendment. This fact, coupled with the absence of any allegation that any elector was deceived or misled by the submission clause, is sufficient to convince us that there is no valid foundation for this contention.

It is claimed that while the form of submission purports to submit only two amendments, there were, in fact, a large number of distinct and separate amendments submitted and voted upon as one amendment. In this respect great stress is placed upon the argument wherein it is claimed that the two amendments were interdependent, which contention has heretofore been disposed of. It is claimed that inasmuch as the commission form of government amendment makes regulations concerning the duties of the commissioners as the city council, and provides that the doing of certain things shall be a sufficient cause to declare the office vacant, and that as' it eliminates the veto power of the mayor and provides for a reduction in the number of other officers, that these and other matters were separate and distinct propositions upon which the people had a right to express themselves separately. It is also claimed that the section in the election amendment which changes the time for city elections, and the section which prohibits political parties from naming candidates as such, and the section which increases the term of office of the election commission, are distinct and separate questions upon which the elector had a right to be heard separately.

We are of opinion that the matters above referred to are but incidents to the main objects sought to be accomplished by the amendments. The commission amendment provides for the commission form of government. To do this it was necessary to make changes in the charter so as to adapt its provisions to the conditions involved by the change. This could not be accomplished by declaring that the city and county of Denver should have a commission form of government, consisting .of five commissioners, one of whom, selected by themselves, should have the title of mayor. To obtain the object sought it was necessary to abolish many offices, to create others, and provide their duties, and to make other changes thought necessary in order to perfect a complete government under the commission system. We are of opinion that the changes referred to were germane to the principal subject and were made as incidents thereto. In People v. Sours, supra, it was said:

“That if an amendment embraces more than one subject, said subjects need not be separately submitted if they are germane to the general subject of the amendment, or if they are so connected with or dependent upon the general subject that it might not be desirable that one be adopted and not the other.”

If a bill were introduced in the legislature entitled “An act in relation to elections,” making a change in the dates thereof, it could not consistently be maintained that it was not covered by the title. We think this rule is applicable here and that the change of the date of election was germane to the election amendment; also, that the portion involving the terms of the election commissioners was germane to this amendment. By other provisions arrangements are made which will ultimately abolish the election commission and substitute in lieu thereof one election commissioner who, with the commissioner of safety and the auditor, will thereafter perform the duties now being performed by the election commissioners. It was necessary to make some arrangements concerning this question; it was but an incident to the main question. As said upon this subject in Wolfe v. Bronson, 115 Mo. 271, 21 S. W. 1125: “If all the provisions of the bill have a natural relation and connection, then the subject is single, and this too though the bill contains many provisions.” To the same effect is The State ex rel Hudd v. Timme, Secretary of State, 54 Wis. 318, 11 N. W. 785, wherein it is said:

“We think amendments to the constitution, which the section above quoted requires shall be submitted sep arately, must be construed to mean amendments which have different objects and purposes in view. In order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other. Tested by this rule, the propositions submitted to the electors Contained but one amendment. It is clear that the whole scope and purpose of the matter submitted to the electors for their ratification was the change from annual to biennial sessions of the legislature. It was so spoken of by the legislative bodies-which passed it, as well as by the electors who ratified it. To make that change it was necessary, in order to prevent the election of members of assembly, half of whom would never have any duties to perform, that a ^change should be made in' their tenure of office as well as in the times of their election, and the same may be said as to the change of the tenure of office of the senators.”

These cases were cited with approval by this court in People v. Sours, supra, which is in harmony with the views herein expressed. To the same effect are: State ex rel v. Allen, 178 Mo. 555, 77 S. W. 868; State ex rel v. Riplinger, 30 Wash. 281, 70 Pac. 748; City of Eugene v. Willamette Valley Co., 52 Or. 490, 97 Pac. 817.

As heretofore stated, it should be borne in mind that the method provided for the adoption of amendments like those under consideration is not confined to the limits prescribed in the constitution for the adoption of amendments to legislative enactments. When this fact is taken into consideration, together with the fact that the going into effect of such amendments can be made contingent upon the happening of some other event, the case of City of Denver v. Hayes, 28 Colo. 110, 63 Pac. 311, is not in conflict with the views herein expressed; it involved the issuance of bonds for eleven distinct and separate purposes having no connection with each other, which, as the court held, made it the submission of that number of distinct and separate questions concerning which it was held that the voter had the right to express his choice separately upon each. At the election under consideration there were four amendments submitted with the privilege given the voter to exercise his choice for or against each. According to our views all the provisions in the commission government amendment which have been called to our attention have a natural relation and connection with that subject; likewise all those in the nonpartisan election amendment have a natural relation and connection with that subject, making them proper to be thus submitted each as one amendment. This makes unnecessary any consideration of whether sundry and separate matters having no relation to each other can in this manner be submitted as one amendment.

It is claimed that the call for the election at which these amendments were submitted, was not published for the time prescribed by section 5 of article XX of the constitution and for this reason that the election is void. The date for the election was fixed in an ordinance which was signed by the council and mayor on January 24th,. 1913. This ordinance was published January 25th. The clerk published the text of the amendments with his call for the election upon January 24th, again on January 31st and also upon February the 7th, making three publications, a week apart, as required by the constitution. But it is claimed that the first publication upon January 24th was a nullity for the reason that the ordinance which fixed the date for the election did not become effective until January 25th, because section 13 of the charter provides that no ordinance shall take effect until'published, etc.; that the two publications made thereafter were the only legal ones; that a constitutional provision is manda tory and must be strictly followed, hence, these facts make the election void. The fallacy with this contention necessary to consider, is in its assumption that as the date fixed for the election was in an ordinance, that this action by the council in fixing the date was of no force and effect until the ordinance, as an ordinance, was in force. An examination of article XX of the state constitution will disclose that it makes no provisions for the calling of special elections like the one under consideration by ordinance. Section 5 provides that whenever petitions providing for the submission of amendments to the charter, etc., are signed by qualified electors in number not less than ten per cent, etc., with a request for a special election, the council shall submit it at a special election to be held not less than thirty nor more than sixty days from the date of filing, the petition, but it does not state that it shall be by ordinance. Section 4 provides that a special election shall be called by ordinance for the election of delegates to the first charter convention. Section 5 provides, first, for the calling of elections at which shall be submitted any measure, charter amendment, or the question of holding a charter convention. It then provides that when the question of a charter convention is carried at such election, that a charter convention shall then be called through a special election ordinance, etc., by providing in both instances that the call for the election, where a charter convention is to be held, must be by ordinance, and omitting it in the same act as to calls for elections like the one under consideration is convincing of the fact that such a requirement was not intended in elections of this kind. Section 179 of the charter does not provide that the call for such an election shall be by ordinance, while section 20 of the charter provides that any measure, charter amendment or proposal for a charter convention may be submitted to a vote of the qualified electors in the manner provided by the constitution, which it must be conceded would in any event be controlling. Tbe constitution not having provided that the call for this election be by ordinance, does the fact that it was included in an ordinance make the call inoperative and of no force and effect until the ordinance became effective as an ordinance? We do not think so. The council was not charged with the duty of giving notice of the election; that duty was imposed upon the clerk. Its duty wás limited to those matters provided for by article XX of the constitution and certain provisions of the charter, none of which provide that the act under consideration be by ordinance. The call for this election could have been by resolution or in some other appropriate manner and when thus provided for it would be effective at once. It is the act in compliance with the mandate of the constitution, and not the form, which should be looked to in order to ascertain if the constitutional requirement has been complied with. The pleadings disclose that the act of the council in calling the election and fixing the date therefor, was on or before January 24th, that being the date it is alleged that the ordinance was signed by the mayor and council. Such being the case, the allegation that it was done by ordinance can be treated as surplusage or considered as immaterial, under the well known rule, that when a thing is done in compliance with the mandate of the constitution; the doing of other things in excess of that requirement in connection with that required can be eliminated, and need not be considered. This principle was involved in Nisbet v. The People, 19 Colo. 441, 36 Pac. 221, where the court had under consideration an amendment to the constitution which the general assembly undertook to propose by bill, it was urged that while this was unnecessary yet as the general assembly undertook" to submit it in this manner, they were bound to observe the formalities required in the enactment of laws. The court held that its statutory character did not effect the validity of tlie proposed amendment included therein, since, as the court said, “Amendments may he proposed in any form or manner so long as the requirements of section 2 of article XIX are observed.” A case more directly in point is that of Hellman v. Shoulters, 114 Calif. 136, 44 Pac. 915, 45 Pac. 1057, where- the validity of certain actions of the council, not required to. be but which were taken by ordinance, were involved before they became effective as an ordinance. The question and conclusion arrived at as stated in the. syllabi are:

‘ ‘ The street law provides a complete scheme of procedure for street work, and the city charter cannot make a different procedure by requiring more or less publication of notice, and a publication of notice of intention to make a street improvement for two days only as provided by the street law, is sufficient, though it be in the form of the publication of an ordinance, which the city charter requires to be published for ten days before it can take effect, the ordinance being equivalent to a resolution so far as the street law is concerned, and being the basis for the two days’ notice provided for by that law, whether effective as an ordinance or not. ’ ’

To the same effect in principle are: City of Napa v. Easterby, 76 Calif. 222, 18 Pac. 253; McEneney v. Town of Sullivan, 125 Ind. 407, 25 N. E. 540.

It will thus be observed that the constitutional provision pertaining to the publication of the call for this election was in all respects strictly complied with.

Perceiving no prejudicial error, the judgment is affirmed.

Affirmed.

Decision en bane.

Mr. Justice White and Mr. Justice Gfabrigues dissent.