In re Governor's Proclamation

• Decision Date: 24 January 1894
• Citation: 35 P. 530,19 Colo. 333
• Parties: In re GOVERNOR'S PROCLAMATION.
• Court: Colorado Supreme Court

35 P. 530

19 Colo. 333

In re GOVERNOR'S PROCLAMATION.

Supreme Court of Colorado

January 24, 1894

Questions by the house of representatives, in relation to the governor's proclamation calling a special session submitted for opinion.

The other facts fully appear in the following statement by ELLIOTT, J.:

The opinion of the court is in response to certain questions propounded by the house of representatives, as hereinafter stated. The governor of Colorado, by proclamation, convened the ninth general assembly in special session on January 10 1894. The proclamation is based upon the following provision of the constitution, (article 4:) 'Sec. 9. The governor may, on extraordinary occasions, convene the general assembly, by proclamation, stating therein the purpose for which it is to assemble; but at such special session no business shall be transacted other than that specially named in the proclamation. He may, by proclamation, convene the senate in extraordinary session for the transaction of executive business.' The proclamation, among other matters of business to be transacted at the special session stated the following: '(20) To amend the attachment laws of the state by striking out the tenth, eleventh, and thirteenth causes of attachment; such amendment to take effect only on contracts made after this enactment becomes a law.' At the special session thus called, there was introduced house bill No. 15, entitled 'A bill for an act to amend the attachment laws of the state as prescribed by section 2000 of the General Statutes of the State of Colorado.' The bill, if passed, would be a substantial re-enactment of section 77 of the justices' attachment act, omitting the seventh, eighth, and tenth causes of attachment. The questions propounded are as follows 'First. Can the legislature legally enact the amendment contemplated by this bill under the constitutional provision and the governor's call, as set forth? Second. Can the legislature legally enact this amendment so as to apply to contracts made prior to its passage?'

Syllabus by the Court

1. The business to be transacted at a special session of the legislature is to be specially named in the executive proclamation, but is not to be particularly prescribed, in all its details. The legislature cannot go beyond the limits of the business specially named; but within such limits it may act freely, in whole or in part, or not at all, as it may deem expedient.

2. Quaere, whether causes of attachment may be repealed so as to apply to existing contracts.

ELLIOTT, J., (after stating the facts.)

The questions submitted require the consideration and construction of section 9 of article 4 of the constitution. In the light of other constitutional provisions, it is not difficult to determine the object of this section. The framers of the constitution, apprehending evil from frequent legislative sessions and from too much legislation, provided for biennial sessions, and limited such sessions to a short period of time. It was then considered that changes in the laws of the state oftener than once in two years were not desirable, and that a reasonable time was necessary for our people to become acquainted with new statutes, and test their value, before attempting to change them. It is undoubtedly true that if legislative sessions were more frequent the statutes enacted by one legislature would hardly be published before a succeeding legislature would begin to change modify, or repeal them. Speaking upon a constitutional provision similar to the one now under consideration, the supreme court of Tennessee said: 'This, undoubtedly, is a very salutary provision, tending somewhat to check overlegislation, and to render laws a little more stable, by furnishing a period of two years, during which they may be, in some degree, subjected to the test of a brief experiment.' Mitchell v. Turnpike Co., 3 Humph. 460. These views were expressed more than 50 years ago. It is safe to say that the various state legislatures did not, in those days, manufacture one-quarter the number of statutes at a single session that they do now. As a protection against any sudden or unexpected emergency requiring action by the legislature, our constitution provides that a special session may be convened by proclamation of the governor. It is expressly provided, however, that such special session shall not be convened for general purposes, but that the business to be transacted at such session shall be limited to matters named in the executive proclamation. From the reading of section 9, its meaning seems plain. It consists of ordinary language. Its terms are not unlike those of other state constitutions upon the same subject. But the proclamation under consideration is somewhat extraordinary, for its minuteness of detail. Hence, the task of construing and applying the constitutional provision to the terms of the proclamation is attended with some difficulty. If we construe the language of section 9 with the view to sustain the largest measure of executive control over legislative power, we reach a certain conclusion. If we construe the language with the view to protect legislative power against undue executive control, we reach a conclusion quite different. In a free representative government, like ours,--a government of distributed and balanced powers,--the equality of the different departments of the government, and the supremacy of each department in its appropriate sphere, are cardinal principles, and must be maintained, except in those instances where the constitution expressly authorizes a departure from them. Thus, a conservative construction of section 9 is required. In this matter, truth lies...