People v. Prevost

55 Colo. 199

• Court: Supreme Court of Colorado
• Decided: April 15, 1913
• Docket: No. 7802
• Status: Published

Opinions

Chiee Justice Musser

delivered the opinion of the court:

The plaintiff in error brought an action in the nature of quo warranto to test the validity of the charter of the city of Pueblo, claimed to have been framed and, on September 19,1911, adopted by the electors, pursuant to the provisions of section 6 of article XX of the Constitution, as that section existed at that time. By this charter, commission form of government was provided for the city. A general demurrer was sustained to the complaint, and, the plaintiff not pleading further, the action was dismissed. at his costs. It is to review this judgment and the action of the court in sustaining the demurrer that this writ of error is prosecuted.

The discussion, which will now determine this case, makes it unnecessary to state the contents of the complaint or to discuss the alleged defects which it was therein alleged and claimed rendered the charter void. After the judgment, and at the general election in November, 1912, the people of this state adopted an amendment to section 6 of article XX of the constitution, which is popularly called “The Home Rule Amendment,” and which was proposed under the initiative and referendum provisions contained in section 1 of article Y of that instrument. It was conceded at the oral argument, and it is undoubtedly true, that if the so-called “Home Rule Amendment” was legally proposed and adopted, so that it became a valid part of the constitution, the alleged defects in the charter and government of the city have been cured, if they ever existed, and that, therefore, the judgment must be affirmed.

It appears that there were a number of constitutional amendments, proposed by the general assembly, and under the initiative, that were submitted to the people and voted upon at the election in November, 1912. In addition to the Home Buie Amendment to section 6 of article XX, another amendment to that article was proposed and voted upon. It is claimed that amendments to ten articles, in all, were proposed, by the general assembly in part, and under the initiative in part, filed in the office of the secretary of state and voted upon, and that amendments to at least six articles had been so filed before any proposed amendment to article XX appeared. It seems to be the position of the plaintiff in error, that, when proposed amendments to six articles, whether all were proposed by the general assembly, or all by the initiative, or in part by the one method and in part by the other, have been filed in the office of the secretary of state for submission to the people, any amendment to any article other than one of the six already affected, thereafter filed, would be a nullity even though submitted to the people and by them adopted at the election. It is claimed that this result is brought about by section 2 of .article XIX of the constitution, and section 1 of article V thereof. Section 2 of article XIX provides that the general assembly may propose any amendment or amendments to the constitution, and for the manner of their proposal, publication, and their submission to the qualified electors of the state for approval or rejection, and closes with a proviso that if more than one amendment be submitted at any general election each shall be voted upon separately and the votes thereon cast separately counted,- and then ends -with this sentence: “But the general assembly shall have no ppwer to propose amendments to more than six articles of this constitution at the same session.” Section 1 of article Y, which contains the initiative and referendum provisions, so far as it can have any bearing upon any question in this discussion, is as follows:

‘ ‘ Section 1. The legislative power of the State shall be vested in the General Assembly consisting of a Senate and House of Eepresentatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the General Assembly, and also reserve power at their own option to approve or reject at the polls any act, item, section or part of any act of the General Assembly.

The first power hereby reserved by the people is the initiative, and at least eight per cent, of the legal voters shall be required to propose any measures by petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions for State legislation and amendments to the Constitution, shall be addressed to and filed with the Secretary of State at least four months before the election at which they are to be voted upon.

The second power hereby reserved is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health or safety, and appropriations for the support and maintenance of the department of state and state institutions, against any act, section or part of any act of the General Assembly, either by a petition signed by five per cent, of the legal voters or by the General Assembly. * * * * The veto power of the Governor shall not extend to measures initiated by, or referred to the people. All elections on measures referred to the people of the State shall be held at the biennial regular general election, and all such measures shall become the law or a part of the Constitution, when approved by a.majority of the votes cast thereon, and not otherwise, and shall take effect from and after the date of the official declaration of the vote thereon by proclamation of the Governor, but not later than thirty days after the vote has been canvassed. This section shall not be construed to deprive the General Assembly of the right to enact any measure. * *

The Secretary of State shall submit all measures initiated by or referred to the people for adoption or rejection at the polls, in compliance herewith.”

Whenever a constitutional amendment is attacked on account of some alleged violation of the constitution in its submission, it is a universal rule that it must appear beyond a reasonable doubt, both as to law and fact, that the constitution has been thus violated before the amendment will be overthrown. People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. 34. Even were the law with respect to amendments to six articles, as the plaintiff in error claims it is; that is, that when amendments to six articles have been filed an amendment to another article thereafter filed is void (which we do not concede), he has not made it appear beyond a reasonable doubt that such a law was violated in the submission of the Home Rule Amendment. In order to arrive at that conclusion, he contends that a statute relating to the publica,tion of initiated laws, which was itself initiated and voted upon at the election in November, 1912, was a constitutional amendment, though in*form a statute. This measure was initiated as a statute and submitted and voted upon as such. There was nothing in or about it that in any manner indicated that those who had initiated it or the people who voted upon it, had a thought or a suspicion that it was a constitutional amendment or intended for one. At the same election there was submitted a constitutional amendment amending the section relating to the publication of constitutional amendments and the statute evidently was framed and voted upon with the idea in mind that the constitutional amendment would be adopted. ,The plaintiff in error asserts that the publication of constitutional amendments was controlled by the constitution, and that the statute would have been unconstitutional as such. After claiming that the statute would have been unconstitutional if adopted, he contends that the measure, though to all other appearances and indications a statute, was in fact a constitutional amendment. Reduced to its last analysis, the argument is this: If an initiated measure contravenes the constitution, though it is in form a statute, professedly intended as such with nothing about it to indicate that it was intended for a constitutional amendment, nevertheless it is a constitutional amendment. Such a position cannot be maintained in reason or logic. To say that the people could thus, without intending to do so, and unwittingly, amend their constitution, is a proposition that carries with itself its own refutation. The only reasonable thing that can be said of a measure that in form and to all indicated intents and purposes is a statute which' contravenes the constitution, is, not that it is "a constitutional amendment, but that it is itself unconstitutional.

It is further said in the brief of the plaintiff in error: “If we eliminate the so-called statute, the effect of which is to amend article V, there were filed amendments to six articles, to-wit: * * * before any amendment was proposed to article XX. ’ ’ In arriving at this conclusion, he maintains that a proposed new article, to be numbered XXI, and popularly called “the state wide prohibition amendment,” was in fact an amendment to article XVIII. The proposed article XXI prohibited the manufacture in or importation into this state of any intoxicating liquors for sale or gift and prohibited the sale or keeping for sale of any intoxicating liquors, but provided that the handling of intoxicating liquors for medicinal or sacramental purposes might be provided for by statute. Article XVIIIis captioned “miscellaneous” and consists of eight different sections bearing no particular relation to each other.

If we understand the plaintiff in error aright, his argument seems to be that after the constitution was first adopted no new articles could be added, but that any-proposed new article that was germane to any of the matters in any of the articles other than article XVIII be- ' came a part of the article to which it was germane, and if it was not germane to any of the other articles then it became a part of article XVIII. He has not called our attention to any authorities to sustain this position and we know of none. On the contrary, the case of People v. Sours, supra, is directly against it. He contends secondly, that because section 5 of article XVIII commands the general assembly to prohibit by law the manufacture in or importation into this state and the sale of spurious, poisonous or drugged spirituous liquors, or spirituous liquors adulterated with any poisonous or deleterious substance, the prohibition amendment was clearly an amendment by addition to article XVIII. He cites no authorities to support this contention, but contents himself with its mere assertion. In the case of Schwartz v. People, 46 Colo. 239, 104 Pac. 92, it was contended that on account of the presence of section 5 of article XVIII in the constitution, the general assembly had no power to legislate with respect to any liquors but such as were therein mentioned. This court, however, did not accept that theory. On the contrary, it held that no one ever had an inherent, natural or common law right in Colorado to carry on the business of dealing in intoxicating liquors, and on page 250 it was said:

“It must therefore be accepted, beyond chance of controversy, that the legislature of Colorado has the full right and power by law, to provide such ways and means to prohibit and suppress the sale of any kind of intoxicating liquors as it may see fit, and as the exigencies of the case seem to it to require and demand, unless by express ■ constitutional inhibition, or necessary implication, that right and power has been withdrawn.”

Prom this it is clear that if the general assembly of .Colorado would have enacted as a. statute the state wide •prohibition amendment in its very words, such statute would not have contravened the constitution of Colorado or any article or section thereof. If as a statute it would not have been contrary to any article of the constitution, how can it be said that as a constitutional amendment it would have amended any article ? The plaintiff in error could have argued that the state wide prohibition amendment would have been an addition to our bill of rights as well as to argue that it would have been an addition to article XVIII. Eliminating the statute which plaintiff in error claims was a constitutional amendment, and which has been shown was not such, the most that is asserted in the brief of plaintiff in error, or in any other brief contending for the invalidity of the Home Eule Amendment, is that when the first proposed amendment to article XX was filed with the secretary of state, there were then already filed amendments to six articles, and this conclusion is arrived at by saying that the state wide prohibi- ' tion amendment was an amendment to article XVIII. It is in this manner that it is attempted to demonstrate, beyond a reasonable doubt, that the constitution was violated in the submission of the Home Eule Amendment. We have a right to assume that the utmost has been contended for that the conscience of the plaintiff in error or counsel would permit them to contend for.

If we were to adopt the conclusions as to fact and law with reference to the filing of amendments as claimed by ' plaintiff in error, except with respect to the proposed statute and that the prohibition amendment was an amendment to article XVIII, it appears that when the first proposed amendment to article XX was filed in the office of the secretary of state there had been filed in that office amendments to bnt five articles of the Constitution. Such is the .fact, for excluding the said proposed statute and the prohibition amendment, the amendments. filed, proposed by the general assembly and by the initiative, to and including the first proposed amendment to article XX were as follows: Two amendments to article X; two, to article XI; two, to article XIY; one, to article XY; one, to article XIX, and one, to article XX. The last was filed on June 29, 1912, at 11 o’clock a. m. instead of 11:30 as inadvertently said by plaintiff in error, and was an amendment to section 7. The Home Rule Amendment was filed the last of all the proposed amendments, and, as has been seen, is an amendment to section 6 of article XX. The prohibition amendment was. proposed under the initiative provisions of the constitution and not by the general assembly. The plaintiff in error includes it in his enumeration as an amendment to article XYTII which it plainly was not, nor was it an amendment to any other article by implication or otherwise. The limitation in section 2 of article XIX extends only to amendments to articles, which is recognized by plaintiff in error when he insists that the prohibition amendment was an amendment to article XYIII. A grave doubt has thus arisen as to the existence of the principal and necessary fact upon which the whole argument of plaintiff in error must rest. It is not necessary to resolve or remove this doubt since a majority of the court thinks that the plain language of section 1 of article Y is against the contention of plaintiff in error no matter what the true meaning of section 2 of article XIX may be, and places the determination of this case solely on that language.

Before we discuss this, however, we deem it necessary to exclude from applicability in this case a certain argument made by plaintiff in error, in which he asserts that if the limitation of the right granted to the general assembly in section 2 of article XIX to propose constitutional amendments is not extended to such proposal by tbe initiative, then tbe limitations upon tbe general assembly to enact laws are not applicable to such enactment under the initiative and referendum. "We think that the necessary premises and logical discussion of these two questions are so different that the determination of the one is not determinative of the other. The one relates to a limited right with reference to a detail of procedure for the purpose of aiding the people in the exercise of their power to amend the constitution, a power which the people always possessed and never passed to any agency and which the general assembly never had. The other relates to limitations upon a complete power of the general assembly vested in it by the constitution, and such limitations were written at a time when statutes could be enacted and the legislative power of the state, except as to the constitution, exerted only by the general assembly. The question now under discussion does not involve the internal validity of an amendment or statute; the' other involves the internal validity of statutes. Besides the question now before us is determined without reference to the fact that the limited right granted in section 2 of article XIX is in terms to the general assembly. These considerations impel us to say that the argument referred to is not pertinent to this case.

The plain affirmative declarations of section 1 of article V is contrary to the proposition advanced by plaintiff in error. He has resorted to many rules of construction in order to support his theory. Buies of construction, if applicable, prove helpful, but if not applicable they may lead astray and are not to be resorted to. When the language of the constitution is plain and unambiguous there is no room for construction. What the words declare is the meaning and courts have no right to add to or take from that meaning.. People, ex rel. v. May, 9 , 10 Pac. 641. People v. Cassidy, 50 Colo. 503, 117 Pac. 357.

Section 1 of article Y of the constitution, as it now stands, containing- the initiative and referendum provisions, does not, on its face, place upon the required percentage of voters any limitation as to the number of amendments that may be so proposed. It is said in that section that “the people reserve to themselves the power to propose * * amendments to the constitution and to enact or reject the same at the polls independent of the general assembly,” and there is no hint or suggestion in the section that the number of such amendments that may be proposed and submitted to the people at any one election is at all limited, except as it may be limited by the provision that the proposed amendments shall be filed with the secretary of state at least four months before the election at which they are to be voted upon, and the provisions relative to the form and manner of the proposal. It affirmatively appears in the section that no limit was intended on the number that may be proposed, for it is declared therein that, “The secretary of state shall submit all measures initiated by * * the people for adoption or rejection at the polls in compliance herewith.” If it vas intended that only a certain number should be proposed, why was the secretary of state commanded to submit all that may be filed with him? When that officer was directed in positive terms 'to submit all, it cannot be said that he shall submit only a certain number, and if all must be submitted it cannot be said that those above a certain number that are submitted are on that account void. No one has any right to say that the people intended that all that are proposed shall be submitted to them, but that only a certain number of those that are submitted and perhaps adopted should be valid. Again the article says: “All elections on measures referred to the people of the state shall be held at the biennial regular general election, and all such measures shall become the law or a part of the constitution, when approved by a majority of the votes cast thereon,” etc. In reading this we must do so in the light of the fact that the people always possessed the sole right to amend the constitution and never limited themselves as to the contents of amendments to it. Taking this fact into consideration, when the section commands, as it does, that all constitutional amendments proposed in compliance therewith shall be submitted and that all submitted shall become a part of the constitution, when adopted, it seems quite clear that no limit was intended.

There is nothing in the section that in any way affects what the general assembly may do, save that, with certain exceptions, any act, section or part of any act of the general assembly may be referred to the people and by them adopted or rejected at the polls. There is a provision in it that the ‘ ‘ section shall not be construed to deprive the general assembly of the right to enact any measure.” This may not refer to the proposal of constitutional amendments, but taken in connection with the whole act it is obvious that it was not intended that the general assembly should be interfered with in its right to propose contitutional amendments. Under the contention of plaintiff in error, the number of amendments that are proposed under the initiative may equal the number which he says can be proposed, before the general assembly has a chance to propose any, and thereby the right of the general assembly would be entirely taken away, or vice versa, the general assembly may propose the limited number, in which event the right of proposal under the initiative would be gone. The section says that the power to propose constitutional amendments is reserved to the people independent of the general assembly, and there is nothing in the section that modifies this independence in any way, except that the section shall not be construed' so as to deprive the general assembly of the right to enact any measure, by reason of which the general assembly may amend or repeal any initiated law that is adopted by the people at the polls. In Re Senate Resolution, 54 Colo. 262, 130 Pac. 333.

What the plaintiff in error is asking this court to do is not to construe -the constitution, but to amend it by construction, and this no court has the right or power to-do. The argument made is based largely on the wisdom and policy of leaving the number of amendments that may be proposed by the initiative as unlimited. The wisdom or policy of that is not a judicial question, but a political one, to be fought out on the hustings, and determined by the people at the polls. The people have the sovereign right to amend their constitution if they so desire, and courts have no power to amend it for them. The briefs point out that dangers may arise from the unlimited proposal of amendments to the constitution, and seem to express a fear of the abuse which the people may make of their power. We have no right to assume such a result, for such argument, if heeded, would sweep away our present form of gbvernment. It is said in section 1 of article II of our constitution, “That all political power is vested in and derived from the people; that all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.” We cannot be unmindful that this court must not usurp power, or abuse its right of construction, or lose sight of the dangers which may arise, not only to the- state, but to the court itself from such usurpation and abuse. It is just as important for the preservation and just administration of the government of this state that the power of courts should be exerted only within The limits of the constitution, and be not abused, as it is that the power of the people, the general assembly or the executive department should he so exerted and not abused.

• The plaintiff in error asserts that the Home Eule Amendment embraces several distinct amendments, which could not lawfully be submitted as a single amendment. As has been seen section 2 of article XIX provides that if more than one amendment be submitted at any general election, each of the amendments shall be voted upon separately, and votes thereon cast shall be separately counted. Conceding, but not deciding, that this applies to. measures initiated, we think the objection is not well taken. In the 8ours case, it was determined that the constitution does not require the submission of separate subjects, but only that each amendment be separately submitted, and that it is one amendment if the subjects are germane to the general subject of the amendment, or so connected with or dependent upon the general subject that one is not desirable without the other, even though other articles be incidentally affected, or constructively amended, or amended by implication. It has been determined again and again that the subject matter of article XX was Home Eule, or the right of self-government by Denver and other municipalities in the state relating to local and municipal matters. Section 6 of the article, as it stood before the Home Eule Amendment, gave to cities of the first and second class in this state the power to adopt charters and to govern themselves in relation to their local and municipal matters. The amendment to that section deals with the same general subject. It provides that the people of each city or town in this state, having a population of two thousand inhabitants, are vested with and shall have power to make, amend, add to or replace the charter of the city or town, which charter shall be its organic law and extend to all local and municipal matters. It provides that such city or town, and the citizens thereof, shall have the powers set out in sections 1, 4 and 5 of Article XX “and all other powers necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon, provide, regulate, conduct and control. ’ ’ Then follow certain enumerated matters stated separately and lettered from “a” to “h.” Subdivision “d” of these enumerated matters is as follows: “All matters pertaining to municipal elections in such city or town, and to electoral votes therein, on measures submitted under the charter or ordinances thereof, including the calling.or notice and the date of such election or vote, the registration of voters, nominations, nomination and election systems, judges and clerks of election, the form of ballots, balloting, challenging, canvassing, certifying the result, securing the purity of elections, guarding against abuses of the elective franchise, and tending to make such elections or electoral votes non-partisan in character.”

Subdivision “g” of these enumerated matters is as follows: “The assessment of property in such city or town for municipal taxation and the levy and collection of taxes thereon for municipal purposes and special assessments for local improvements; such assessment, levy and collection of taxes and special assessments to be made by municipal officials or by the county or state officials as may he provided by the charter. ’ ’

It is contended that subdivision “d,” which pertains to municipal elections, does not relate to a matter of local, municipal concern, or a local municipal matter under the decision in Mauff v. People, 52 Colo. 562, 123 Pac. 101. That opinion was written before the adoption of the Home Rule Amendment. If it was therein declared that municipal elections were matters of state, governmental control, the people thereafter, by the adoption of the Home Rule Amendment, declared in terms that municipal elections were local and municipal matters, upon which the people of municipalities had the power to legislate. Whatever may have been the law or the status of municipal elections before the amendment, their status now, by the adoption of that amendment, is fixed by legislative declaration of the people as local and municipal matter's. The Home Eule Amendment says that the charter shall extend to all local and municipal matters and that the people may legislate concerning those matters, and enumerates specifically some of the matters which are regarded as local and municipal, among which are all matters pertaining to municipal elections and municipal taxation, and after the enumeration of these several matters, it further says: “It is the intention of this article to grant and confirm to the people of all municipalities coming within its provision the full right of self-government in both local and municipal matters, and the enumeration herein of certain powers shall not be construed to deny to such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right.”

It is plain from this amendment that all matters pertaining to municipal elections specified in subdivision “d” and all matters pertaining to the assessment of property for municipal taxation, and the levy and collection of taxes therein for municipal purposes, and special assessments for local improvements, etc., specified in subdivision “g,” are declared local and municipal matters, and they have been so declared by the people themselves. If they were not so before the amendment they are so now, in the towns and cities of the state, having two thousand inhabitants, whose people elect to be governed under their own charter.

Plaintiff in error also asserts that the Home Eule Amendment is subversive of the state government and repugnant to the constitution of the United States. He does not point out how and in what manner it subverts the government, nor does he point ont what particular section of the federal constitution has been violated. We presume that this is a last mention of that idea that has been advanced by those who desired to overthrow article XX of the constitution, ever since that article was adopted, and which idea has vexed the courts, not only of this state, but of many others, to-wit, that the government proposed by the Home Eule Amendment is not republican in form. We are glad to say that at last that question has been fully settled, and we trust forever so far as courts are concerned. It is a political question purely, over which courts have no jurisdiction. Luther v. Borden, 7 How. 1, 12 L. Ed. 581. Pac. Tel. Co, v. Oregon, 223 U. S. 118, 56 L. Ed. 377, 32 S. Ct. 224.

The judgment is affirmed.

Judgment affirmed.

Decision 'en banc.

Mr. Justice G-abbert concurs specially.

Mr. Justice White dissents.

Mr. Justice Hill not participating.