Alexander v. People ex rel. Schofield

• Decision Date: 18 January 1884
• Court: Colorado Supreme Court
• Parties: ALEXANDER, Clerk, etc., and others v. PEOPLE, etc., ex rel. SCHOFIELD.

2 P. 894

7 Colo. 155

ALEXANDER, Clerk, etc., and others v. PEOPLE, etc., ex rel. SCHOFIELD.

Supreme Court of Colorado

January 18, 1884

The state constitution is a limitation upon the plenary power of the legislature, and is to be consulted, not to see whether a contested enactment is authorized therein, but to see if it is prohibited.

While in a conflict between a provision of the constitution and a statute, the constitution must always be enforced as the paramount law, still the presumption is that no such supposed conflict exists, and that the act is valid.

In regard to the removal of county seats, the constitution limits the power of the legislature as to the removal without a vote of the people, the minimum of years that must elapse between successive submissions of the question, the qualification of the voters, and the minimum vote necessary for a removal. Outside of this minimum limit the jurisdiction of the legislature is unrestrained, and the act of 1881, providing that a two-thirds vote shall be necessary to effect the removal of a county seat, is valid and not in conflict with section 2, art. 15, of the constitution, which provides that 'no county seat shall be removed unless a majority of the qualified electors * * * vote therefor.' This negative provision vests no absolute right of removal in the majority.

The practical effect of negative phraseology is different when a constitution or a statute is to be construed.

In this case the proceedings of the constitutional convention are of no assistance in interpreting the constitution; the question before us is merely as to the interpretation of the language which was finally adopted by the people.

Error to the district court of Custer county.

John. R.

Smith, H. Townsend, A. J. Rising, and Wells Smith & Macon, for plaintiff in error.

Blackburn & Dale, for defendants in error.

BECK C.J.

By an act of the legislature entitled 'An act to regulate elections for the removal of county seats,' approved February 11, 1881, it was, among other things, enacted '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.'

The record before us presents the question whether the provision above cited is in conflict with section 2 of article 14 of the constitution of this state, which is as follows:

'Sec. 2. The general assembly shall have no power to remove the county seat of any county, but 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, voting on the proposition at a general election, vote therefor; and no such proposition shall be submitted oftener than once in four years, and no person shall vote on such proposition who shall not have resided in the county six months and in the election precinct ninety days next preceding such election.'

In their interpretation of the above section, counsel for plaintiffs in error lay much stress upon the clause, ' The general assembly shall have no power to remove the county seat of any county.' They agree that the legislature is thereby prohibited from making any enactment respecting the vote requisite for a removal different from that named in said section 2, the same being unalterably fixed therein. They say the negative form of expression employed in the clause, 'no county seat shall be removed unless a majority of the qualified electors of the county voting on the proposition at a general election vote therefor,' carries with it by necessary implication the affirmative proposition, that if a majority do vote therefor the county seat shall be removed. Hence, they affirm with great confidence that a bare majority is the ultimatum of the constitution as to the vote which shall authorize a removal, and that the legislature has no power to say that the vote shall be either greater or less, its power being restricted to the single duty of prescribing the necessary machinery for the removal.

On the part of defendant in error it is contended that the vote mentioned in section 2 was only intended as a limitation upon the power of the legislature to authorize a removal by a smaller vote. In support of this view counsel cite the familiar doctrine that state constitutions are not grants of power to legislative assemblies, but limitations only; that plenary power in the legislature for all purposes of civil government is the rule, and that prohibition to exercise a particular power is an exception. They insist that the ordinary meaning of the clause in issue is that the general assembly shall not enact that less than a majority vote may remove, but may require a greater vote; also, that there is no provision in the constitution, expressed or implied, which prohibits the passage of a law requiring a greater vote to authorize a removal.

The questions involved in the case have been ably and thoroughly discussed. Counsel on both sides say they are all easy of solution, yet they manifest a confidence little short of absolute certainty that the propositions which they announce in support of their respective theories are impregnable, and that the reasons assigned and authorities cited to sustain the same are conclusive. Perhaps the great confidence entertained in these opposing views may be accounted for in part upon the theory suggested by Judge COOLEY in his Constitutional Limitations, p. 49; that the different points of view from which different individuals regard constitutions incline them to different views of the instruments themselves. The whole controversy depends upon the solution of the single question whether that portion of the law of 1881 which requires a two-thirds vote to remove a county seat is in conflict with the constitutional provision that no county seat shall be removed unless a majority of the electors voting on the proposition vote therefor.

The nature of the investigation upon which we are about to enter renders the following citation from the pen of Chief Justice SHAW peculiarly appropriate: 'The delicacy and importance of the subject may render it not improper to repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of an act of legislation, passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed in their judgment beyond reasonable doubt.' Case of Wellington, 16 Pick. 95.

The following is also appropriate respecting the duty of courts in such investigations: 'Being required to declare what the law is in the cases which come before them, they must enforce the constitution as the paramount law whenever a legislative enactment comes in conflict with it.' Cooley, Const. Laws, (5th Ed.) 193.

There would be greater force in the arguments employed to demonstrate the invalidity of the laws of 1881 if the state constitution, like the national constitution, was a grant of enumerated powers. In such case we would look into the constitution to see if the grant was broad enough to authorize the legislature to declare what vote should be necessary to remove a county seat. But the legislature being invested with complete power for all the purposes of civil government, and the state constitution being merely a limitation upon that power, we look into it not to see if the enactment in question is authorized, but only to see if it is prohibited. Another rule is that when the validity of an act of the legislature is assailed for a supposed conflict with the constitution, the legal presumption is in favor of the validity, and before the court will be warranted in declaring it void, a clear conflict with the constitution must be shown to exist. The removal of county seats is a subject over which the law-making power has plenary jurisdiction and control. In the absence of constitutional restriction a removal could be authorized upon any vote, great or small, which that body deemed advisable, or without any vote at all.

Looking into section 2, art. 14, of the constitution, we note four principal limitations upon the power of the legislature over this subject: First, the power to remove a county seat without a vote of the people is taken away second, the minimum necessary to effect a removal is prescribed; third, a minimum limit is fixed as to the number of years that must elapse between successive submissions of the question; fourth, the power of the legislature is limited as to the qualifications of the voters. The section requires the passage of a general law on the subject, the evident purpose of the requirement being that such law shall provide the regulations and prescribe the qualifications and requirements necessary and proper for the exercise of the right under consideration. And but for constitutional limitations this law might provide for submitting the question of removal every year; it might qualify as an elector any resident of the county, without reference to the time of his residence therein or the precinct in which he resides; or it might enact that a plurality instead of a majority vote should effect a removal. Such a law would clearly be in conflict with constitutional restrictions. It...