Baker v. Bosworth

• Citation: 222 P.2d 416,122 Colo. 356
• Decision Date: 14 September 1950
• Docket Number: No. 16548,16548
• Parties: BAKER, Secretary of State, et al. v. BOSWORTH et al.
• Court: Supreme Court of Colorado

Page 416

222 P.2d 416

122 Colo. 356

BAKER, Secretary of State, et al. v. BOSWORTH et al.

No. 16548.

Supreme Court of Colorado, en Banc.

Sept. 14, 1950.

John W. Metzger, Attorney General, Allen Moore, Deputy Attorney General, Frank A. Wachob, Assistant Attorney General, for plaintiff in error.

Ammons & Bromley, Grant, Shafroth & Toll, Douglas McHendrie, Richard D. Hall and Hubert D. Henry, all of Denver, for defendant in error.

Anthony F. Zarlengo and F. E. Dickerson, Denver, Amici Curiae.

HAYS, Justice.

Two questions are here presented for determination. (1) Is section 6(2a), chapter 86, 1945 Cum.Supp. '35 C.S.A., constitutional? In so far as pertinent, that section provides:

'No petition for any initiated law or amendment to the constitution shall be of any force or effect, nor shall said proposed law or amendment to the constitution be submitted to the people of the state of Colorado for adoption or rejection at the polls, as is by law provided for, unless the petition for the submission of such initiated law or amendment to the constitution be signed by at least fifteen per cent (15%) of the legal voters of the state of Colorado * * *.'

(2) Was the petition here considered circulated within the period specified by law?

With respect to the first question, section 1, article V, of the Constitution, provides, in so far as here material:

'The legislative power of the state shall be vested in the general assembly * * * 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 * * *.

'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 measure by petition * * *.

'The whole number of votes cast for secretary of state at the regular general election last preceding the filing of any petition * * * shall be the basis on which the number of legal voters necessary to sign such petition shall be counted.

'The secretary of state shall submit all measures initiated by * * * the people for adoption or rejection at the polls, in compliance herewith. * * * 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.

* * *

* * *

'This section of the constitution shall be in all respects self-executing.'

In construing this constitutional provision it is well at the outset to keep in mind the purpose sought to be accomplished by the people in the adoption of the initiative and referendum amendment, as enunciated in People ex rel. Tate v. Prevost, 55 Colo. 199, 134 P. 129, 133, from which we quote:

'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, and such argument if heeded, would sweep away our present form of government. It is said, in section 1 of article II of the 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.''

Concerning the same section, we said in Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775, 777:

'This section was adopted by popular vote at the general election in 1910 and by it the people reserved 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. Although by express words it is declared that this section in all respects shall be self-executing, it is clearly contemplated by its terms that legislation may be enacted to further its operation. Pursuant thereto the legislature has adopted certain facilitating statutes which appear in '35 C.S.A. as chapter 86 thereof. It has generally been held by the courts of all jurisdictions that a constitutional provision for the initiative and referendum and statutes enacted in connection therewith should be liberally construed. * * *

'We proceed to a determination of the controversy before us upon these considerations to the end that the constitutional right reserved to the people 'may be facilitated and not hampered by either technical statutory provisions or technical construction thereof further than is necessary to fairly guard against the fraud and mistake in the exercise by the people of this constitutional right."

With respect to similar constitutional provisions the supreme court of Oregon said in Stevens v. Benson, 50 Or. 269, 91 P. 577, 578:

'A constitutional provision is said to be self-executing if it enacts a sufficient rule by means of which the right given may be enjoined and protected. The language used, as well as the object to be accomplished, is to be looked into in ascertaining the intention of the provision. * * * It is plainly expressed in the provision itself in this case that its reserved rights are to be independent of the Legislature, and is sufficiently specific that it may be carried out without legislative aid. * * * It will also override and nullify whatever legislation, either prior or subsequent, would defeat or limit the right [citing cases]. And so the Legislature may enact laws to facilitate the enforcement of constitutional provisions that are self-executing, and such laws will be obligatory upon the court when intended by the Legislature to be mandatory, so long as they do not curtail the rights reserved or exceed the limitations specified therein.'

It is quite uniformly held as stated in 16 C.J.S., Constitutional Law, § 48, p. 99: '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. * * * A provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will.'

Plaintiff in error insists that because the Constitution provides that at least eight per cent of the voters are authorized to initiate constitutional amendments, that therefore the legislature is authorized to increase that number to fifteen per cent or more within its discretion. This precise point was considered by the supreme court of North Dakota in State ex. rel. Twichell v. Hall, 44 N.D. 459, 171 N.W. 213, 219, and there determined adversely to the contention of plaintiff in error. The court held that the phrase 'at least,' in reference to the number of signatures required to initiate constitutional amendments, is neither indefinite nor uncertain, and that when the constitutional minimum is reached, the petition contains all signatures necessary or required. It was there stated:

'The only requirement under subdivision 2 is that an initiative petition be filed 'containing signatures of at least twenty-five per cent of the legal voters in each of not less than one-half of the counties of the state.'

'It is plain to see that such petition could relate to any subject-matter, and if the Constitution is sought to be amended under the provisions of subdivision 2, the rule therein laid down as to the petition must be followed. We do not agree with the language in State ex rel. Linde v. Hall [35 N.D. 34, 159 N.E. 281] that the percentage is uncertain. The percentage is stated in no equivocal terms. The petition must contain not less than 25 per cent. When such petition does contain 25 per cent. it is a proper and legal petition under the 16th Amendment. Nothing more is required, nothing less is legal. A petition might contain more than 25 per cent., but it must not contain less. Neither can the minimum percent. required be increased by the Legislature. For instance, if the Legislature should pass a law providing that where, under subdivision 2, a constitutional amendment is submitted to remove the State University from Grand Forks to some other city of the state, such petition should contain at least 50 per cent. of the legal voters in each of not less than one-half of the counties of the state. It is easily seen that such provision would increase the minimum of petitioners provided in the 16th Amendment by 100 per cent. Under such a law passed by the Legislature, the minimum would not be 25 per cent., but 50 per cent., of the voters. If such a law were passed, it is plain that it would directly contravene the terms of the 16th Amendment, which declares 25 per cent. the minimum required. The Legislature cannot, by any act, change the minimum of percentage of the voters required, as fixed by subdivision 2 of the 16th Amendment. Whenever 25 per cent. of the legal voters in each of not less than one-half of the counties of the state sign a petition to amend the Constitution in regard to any subject-matter, they have complied with the constitutional requirement of the 16th Amendment, which...