Yenter v. Baker

248 P.2d 311, 126 Colo. 232, 1952 Colo. LEXIS 210

• Court: Supreme Court of Colorado
• Decided: August 27, 1952
• Docket: 16925
• Status: Published

Opinions

Mr. Justice Stone

delivered the opinion of the court.

Section 1, article V, of the Colorado Constitution, relative to initiative and referendum, provides, inter alia, that, “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 * * * . The first power hereby res-served by the people is the initiative, and at least eight per cent, of the legal voters shall be required to propose any measure by petition * * * . Initiative petitions * * * 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 secretary of state shall submit all measures initiated by or referred to the people for adoption or rejection at the polls, in compliance herewith. * * * . The text of all measures to be submitted shall be published as constitutional amendments are published, and in submitting the same and in all matters pertaining to the form of all petitions the secretary of state and all other officers shall be guided by the general laws, and the act submitting this amendment, until legislation shall be especially provided therefor.”

Subsequent to the adoption of said article V of the Constitution, the general assembly passed an act, being chapter 147, S.L. Colo. ’41, pertaining to initiative and referendum petitions in which it is provided in section 1 that after the title of a proposed amendment shall be fixed, “the secretary of state shall cause to be published once each week for two successive weeks in each county of the state * * * a true copy of the title and the text * * * which publication shall be completed within thirty days from the date the titles and submission clause” shall have been fixed. It further is provided in section 2 of the act that no petition for any initiative law “shall be of any force or effect unless filed with the secretary of state at least eight months before the election at which they are to be voted upon.”

Petitions were filed with the secretary of state for initiation of a constitutional amendment to provide for levy of a severance tax, and by the action here sought to be reviewed, plaintiffs, as citizens, taxpayers and owners of oil and gas interests within the state, sought to have the secretary of state enjoined from placing said proposed amendment on the ballot and prayed for judgment of the court declaring the petitions for said amendment invalid on the- grounds, first, that said petitions were not filed eight months before the general election, as required by section 2, chapter 147, S.L. Colo. ’41; and, second, for the reason that the publication of the title, ballot title, and submission clause was not completed within thirty days from the date on which they were fixed, as required by section 1, chapter 147, S.L. ’41.

By answer the secretary of state and the sponsers of the petitions challenged the validity of the legislative requirement that petitions be filed eight months before the election, on the ground that it violated and restricted the right provided in the Constitution to file initiated petitions at.least four months before the election, and asserted the sufficiency of the publication of the title, ballot title and submission clause under the requirements of section 1 of the statute. It was stipulated between the parties that affidavits on file in the office of the secretary of state showed publication within the time required by statute except in the county of Saguache where the second publication was on a date six days after the expiration of thirty days from the date on which the title, ballot title, and submission clause had been fixed. After such answer and stipulation the trial court, on motion for summary judgment, held that both statutory requirements on which plaintiffs relied were invalid as in violation of Article V of the Constitution, and gave judgment denying the injunction and dismissing the complaint.

As to the first ground of asserted insufficiency of the proposed amendment, the Constitution provides that amendment must be filed “at least four months” before the election, while the statute provides that no petition shall be of any force unless filed “at least eight months” before the election. Plaintiffs in error insist that we must interpret the words “at least four months,” not as establishing a minimum requirement which would always permit the filing of amendments at any time not less than four months prior to election, but as permitting the legislature to increase the minimum time requirement beyond such four months period; that the action of the legislature increasing the requirement to eight months was procedural in character, and that the statute was enacted to protect the public against fraud and to safeguard the initiative amendment from abuses.

In considering this contention we note: First, it is universally held that such initiated provisions shall be liberally construed in order to effectuate their purpose; to facilitate and not to hamper the exercise by the electors of rights granted thereby. Brownlow v. Wunsch, 103 Colo. 120, 83 P. (2d) 775; Vandeleur v. Jordan, 12 Calif. (2d) 71, 82 P. (2d) 455; State ex rel. v. Kozer, 108 Ore. 550, 217 Pac. 827. A construction as here urged would not be liberal nor effectuate the purpose of the constitutional provision.

Second, the initiative and referendum constitutional amendment provides that it shall be in all respects self-executing. It is not a mere framework, but contains the necessary detailed provisions for carrying into immediate effect the enjoyment of the rights therein established without legislative action. We said in Town of Lyons v. City of Longmont, 54 Colo. 112, 129 Pac. 198: “A constitutional provision is a higher form of statutory-law, which the people may provide shall be self-executing, the object being to put it beyond the power of the legislature to render it nugatory by refusing to pass laws to carry it into effect.” An equally important object of self-execution is to put it beyond the power of the legislature to render it nugatory by passing restrictive laws.

“Only such legislation is permissible as is in furtherance of the purpose, or as will facilitate the enforcement, of such provision, and legislation which will impair, limit or destroy rights granted by the provision is not permissible.” Baker v. Bosworth, 122 Colo. 356, 222 P. (2d) 416, quoting 16 C.J.S. 99.

“If a constitutional provision is self-executing * * * then any legislation respecting the provision must facilitate enforcement and not curtail or limit any right created and conferred by the provision. If a legislative act undertakes to limit the provisions of the Constitution, then in a contest, the Constitution survives and the act falls.” Barker v. St. Louis County, 340 Mo. 986, 104 S.W. (2d) 371.

“The power to impair would be the power to destroy.” Kitchens v. City of Paragould, 191 Ark. 940, 88 S.W. (2d) 843.

“All such legislation must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it.” Cooley’s Constitutional Limitations, Eighth Edition, p. 171.

The legislative requirement that petitions must be filed- at least eight months prior to election, beyond question narrows and limits the right provided in the Constitution to file them not less than four months prior to the election. The fact, as urged, that proponents of other amendments in the past have been able to procure sufficient signers within the shorter period does not support a conclusion that the right provided by the Constitution is not seriously curtailed, narrowed or limited thereby.

Third, the rights reserved by the people included that to enact constitutional amendments “independent of the general assembly.” “Independent: not dependent; not subject to control, restriction, modification, or limitation from a given outside source.” Black Law Dictionary. To construe the constitutional amendment as contended by plaintiffs in error would make the initiative process in a vital provision dependent upon the general assembly. It would necessarily result either in giving the general assembly authority to modify and limit the minimum time for filing petitions to such an extent as virtually to nullify the constitutional provision, or in putting the burden and responsibility on the court to determine whether the legislative limitation was reasonable or unreasonable, and thus ultimately would require that the petitions be filed at such time prior to the election as might be determined by a court. Plainly it was not the intent of the people, in making the self-executing constitutional amendment, to leave the fixing of the time within which petitions must be filed either to the legislature or to the courts. The people reserved to themselves the power of initiative enactment.

Fourth, in the constitutional provision the people provided the times and methods of procedure and specifically declared the limit of legislative discretion by saying: “The text of all measures to be submitted shall be published as constitutional amendments are published, and in submitting the same and in all matters pertaining to the form of all petitions the secretary of state and all other officers shall be guided by the general law's, and the act submitting this amendment, until legislation shall be especially provided therefor.” As we held In re House Resolution No. 10, 50 Colo. 71, 114 Pac. 293, the phrase “until legislation shall be especially provided therefor” was intended to and does refer merely to the submission of initiated and referendum measures and matters pertaining to the form of petitions. Therefore it does not apply to the time of filing, or to the necessary number of petitioners. As to these matters, legislation enacted to facilitate the carrying out of the provisions of the Constitution and to prevent fraud may not avoid or restrict the minimum requirements set out in the Constitution.

Plaintiffs’ counsel rely on State ex rel. v. Howell, 77 Wash. 651, 138 Pac. 286, where there was involved a similar constitutional provision that initiated petitions should be filed “not less than four months before the election.” The statute provided that petitions must be filed “within ten months” before the election. We note two important distinctions. Our constitutional amendment reserving to the people the authority to initiate legislation gave back to the legislature authority to provide by statute only matters connected with submitting the amendment and matters pertaining to the form of petitions, while the Washington Constitution provided more broadly that “legislation may be enacted especially to facilitate its operation.” More important, while the constitutional amendment in each state provided the same minimum time, our provision being “at least four months before the election,” and that of Washington “not less than four months before the election,” the statute there challenged made no attempt to change such minimum time but established a maximum time of ten months, and-the court held that, because the Constitution established no maximum time and the electorate changed greatly from year to year, establishment of such a maximum time was a reasonable provision to make for orderly procedure and facilitate the operation of the amendment. We are not here faced with a provision by the legislature to establish a maximum time where the Constitution established only a minimum, but rather with a provision to establish a new minimum other than that fixed by the Constitution.

Plaintiffs also rely upon Miller v. State, ex rel., 130 Miss. 564, 94 So. 706, where the constitution provided that public schools should be maintained “at least four months during the scholastic year,” and it was held that a longer term was not prohibited. That case is in line with In re Kindergarten Schools, 18 Colo. 234, 32 Pac. 422, and Alexander v. People ex rel., 7 Colo. 155, 2 Pac. 894, and other cases referred to in the annotation appearing in 91 A.L.R. 1021. The constitutional section involved in the Alexander case provided that, “the removal of county seats shall be provided for by general law, and no county seat shall be removed unless a majority of the qualified electors of the county * * * vote therefor * * The legislature thereafter provided that “not less than two-thirds of all the legal votes cast shall be necessary to effect the removal of the county seat of any county in this state.” We held that statute to be valid. There, the legislature was vested with complete power with reference to the removal of county seats, subject only to the limitation of the Constitution that it should not be moved unless a majority of the electors of the county voted therefor; but here the legislature has been divested of all power concerning the initiative except as to submitting the measures initiated and matters pertaining to the form of petitions.

In the annotation at 91 A.L.R. 1021, in which Alexander v. People, supra, is cited, the annotator said: “Under constitutional provisions investing the legislature with discretion as to the submission of a special proposition to popular vote, it is generally held, * * * that the legislature may require a vote in favor of the proposition in excess of the minimum specified in the Constitution before the law shall become effective.” (Emphasis supplied.)

Where the legislature is vested with power, subject to limitation, it has authority to make any restriction not less than that named in such limitation; but where, as here, the legislature is divested of all discretionary authority and the Constitution as part of a self-executing provision sets a limitation, the legislature may not make any other limitation than that provided in the Constitution.

In Ex Parte Smith, 24 Okla. Crim. 415, 218 Pac. 708, there was involved a constitutional provision that any person manufacturing or selling any intoxicating liquor should be punished “by a fine not less than fifty dollars and by imprisonment not less than thirty days for such offense.” Thereafter Smith was convicted under a statute making it a felony to make or possess mash fit for distillation, and the question arose whether the minimum punishment provided by the Constitution might be modified or increased by the legislature. The court said:

“The fact that a provision in a Constitution is self-executing does not necessarily preclude the Legislature from legislating on the same subject. Such provision may be supplemented by appropriate laws designed to make it more effective, within the bounds reserved by the Constitution and not exceeding the limitations specified. (Citing authority.)

“Usually, if a constitutional provision supplies the rule for its enforcement and fixes a penalty for its violation, it is not only self-executing, but also limits the power of the Legislature to change the penalty. (Citing authority.)” Accordingly, it was held that the statute was in conflict with the constitutional provision, and the legislature without authority to enlarge the minimum set by the Constitution.

In People ex rel. v. McCormick, 261 Ill. 413, 103 N.E. 1053, there was involved a constitutional requirement that no person should be elected to any office “who shall not have resided in this State one year next preceding the election,” and a subsequent statute requiring that a county commissioner in Cook County “shall have been a resident of said county for five years next preceding the election.” Appellee had resided in Illinois more than one year and less than five. The office of county commissioner was a constitutional office, and appellee was held eligible therefor notwithstanding the statute. The court said, “Where the Constitution declares the qualifications for office, it is not within the power of the Legislature to change or add to them, unless the Constitution gives that power.”

In Vanlandingham v. Reorganized School Dist. No. RIV (Mo.), 243 S.W. (2d) 107, there was involved a constitutional provision that any tax for school purposes should not exceed one dollar on each one hundred dollars of assessed valuation in city and town school districts, nor exceed sixty-five cents on a like valuation in other districts. The court held invalid a statute which attempted to restrict the limit of taxation in unincorporated town districts from one dollar to sixty-five cents. It said, “If a constitutional provision is self-executing * * * it necessarily follows that a statute is unconstitutional which is more restrictive than a self-enforcing constitutional provision.” See, also, Bolton v. White Motor Co., 239 Ala. 168, 194 So. 510.

While we have carefully considered anew the question here raised, we have interpreted heretofore the words “at least,” as used in an analogous situation in the same constitutional amendment, in Baker v. Bosworth, supra, and we find no reason for overruling or attempting to distinguish that decision. In the Bosworth case we were concerned with the number requirement, and here with the time requirement for petitioning. Each is a necessary step in the constitutional method of proceeding to initiate amendments. These requirements are equally procedural and equally basic. Decreasing the required time for signatures curtails the right of petition equally with increasing the required number of signatures. Change of either may make impossible the enjoyment of the right reserved by the Constitution, and in any event change of either curtails and narrows that right. Accordingly, after careful deliberation and with full respect for a coordinate branch of the government, we are compelled to the conclusion that the provision of the statute declaring petitions without effect unless filed with the secretary of state at least eight months before the election restricts petitioners in a right reserved to them by the Constitution and is invalid.

As to the contention of plaintiffs in error that the publication was not completed within the time fixed by the statute, it is affirmatively alleged in the complaint that the necessary funds were deposited with the secretary of state for publication as provided by law, and it is stipulated between the parties that such publication was properly made in each county of the state, with the exception of the county of Saguache wherein the second publication was made six days after the expiration of thirty days from the date when the title had been fixed. We think the timely publication of such an amendment in sixty-two counties of the state, with only five days delay in the sixty-third county—and that without fault of either the proponents of the amendment or of the secretary of state—-is a substantial compliance with the requirement of the statute. In Swanson v. State, 132 Neb. 82, 271 N.W. 264, the Constitution provided that proposed amendments should be published once each week for four weeks in at least one newspaper in each county, and the record showed that in one county the notice was not made correctly, and that in three others publications were not made the required number of times, yet, it was held to be in substantial compliance with the constitutional requirements. In Tausig v. Lawrence, 328 Pa. 408, 197 Atl. 235, the statute required that the secretary of the commonwealth “shall cause” the advertisement of a constitutional amendment to be published, as is provided in the constitutional'provision before us, and the court there said: “This does not require-the Secretary himself to go into each county and personally publish the advertisement; he causes it to be published when he places it in the hands of the recognized media for publication in time to permit its insertion * * * and with direction to publish before that time. * * * He cannot by such failure defeat the will of the people * * * . Nor will the submission of a proposed amendment be frustrated by the neglect or refusal of one or more newspapers to publish within the time time specified. To hold otherwise would render the adoption of amendments dependent on the action of newspapers, and if any of these should be opposed to them, it could frustrate their adoption.”

Accordingly, the judgment of the trial court is affirmed as to the dismissal of the action; but since we hold, as urged by the Attorney General, that the publication was in compliance with the provisions of the statute, we make no determination as to the validity of the statutory provisions requiring such publication; and the finding of the trial court, as to the invalidity of section 1, chapter 147, S.L. ’41, is not here considered or affirmed.

Mr. Justice Moore and Mr. Justice Clark dissent.