In re House Resolution No. 10

• Decision Date: 06 March 1911
• Citation: 50 Colo. 71,114 P. 293
• Parties: In re HOUSE RESOLUTION NO. 10.
• Court: Colorado Supreme Court

114 P. 293

50 Colo. 71

In re HOUSE RESOLUTION NO. 10.

Supreme Court of Colorado, En Banc.

March 6, 1911

Opinion in response to a resolution and interrogation of the House of Representatives involving the validity of proposed legislation. Questions answered.

The opinion of the court is in response to a resolution and interrogatories of the House of Representatives of the Eighteenth General Assembly.

House Bill No. 243, a copy of which is attached to the resolution provides that all proposed amendments to the state Constitution and the text of any and all measures submitted under the provisions of recently amended section 1 of article 5 shall be published in full by the Secretary of State for the prescribed time in one newspaper, and no more, which newspaper shall be one of general circulation in each county of the state. The bill in question has been passed through the committee of the whole House and is now on the calendar for third reading and final passage. That honorable body being in doubt about its constitutionality, has submitted for our answer the following:

'Question No. 1. Would H. B. No. 243, above set forth, if regularly enacted, be unconstitutional because of the provisions of section 2 of article 19 of the Colorado Constitution relating to the publications of proposed constitutional amendments?

'Question No. 2. Would said bill, if so enacted, be constitutional as to measures to be submitted under the initiative and referendum because of that part of section 1 of article 5 of the Constitution, as recently amended, which reads: '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.''

Harry B. Tedrow and John H. Gabriel, for the constitutionality of proposed legislation.

Charles A. Haines, opposed. Ben Griffith, Atty. Gen., amicus curiae.

CAMPBELL C.J. (after stating the facts as above).

This court's reluctance to pass upon grave constitutional questions in response to the demand of either branch of the General Assembly, or the Governor, has been repeatedly declared; but the majority think that the conditions, hitherto prescribed as sufficient to invoke this extraordinary jurisdiction, now exist which makes it proper to comply with this request.

There are two questions for decision, or rather one question dual in character. It is whether constitutional amendments and texts of measures to be submitted under the so-called initiative and referendum clause of the Constitution shall be published in one newspaper only, which has a general circulation in each county of the state, irrespective of the place where it may be published, or in one newspaper of general circulation published in each county of the state.

Section 2 of article 19 provides, among other things, that an amendment to the Constitution 'shall be published in full in not more than one newspaper of general circulation in each county.' The majority of the court think this means that a proposed constitutional amendment must be published in one newspaper in each county in the state, which is published and has a general circulation, in that county. The phrase 'of general circulation' is descriptive of the character of the newspaper. It must be one of general, not special, or limited, circulation; not a mere advertising sheet, or a newspaper restricted or devoted to some particular trade, or calling, or branch of industry. The bill, therefore, if enacted into a law, in so far as it concerns the publishing of constitutional amendments, would contravene section 2 of article 19.

The next inquiry is whether, as to initiative and referendum measures, the bill may be saved by the concluding words of new section 1 of article 5, a copy of which is set out in question No. 2. The advocates of the bill argue that these words, 'until legislation shall be especially provided therefor,' relate, and are applicable, to the publishing of constitutional amendments, as well as to their submission and to the form of petitions, and therefore that this bill, being pertinent 'legislation especially provided therefor,' should be construed as in harmony with, and not antagonistic to, section 2 of article 19.

We cannot agree with this argument. In the process of getting matters before the people for their action there are several consecutive stages. As to constitutional amendments, under section 2 of article 19, passage through the General Assembly is one, the publishing thereof is one, and the submission to qualified electors for their approval or rejection is another, each of which is distinct from the others. As to initiative and referendum measures, under section 1 of article 5, the preparation of petitions and securing the required signatures is one step, the publishing is one, and the subsequent submission to the vote of electors is another separate step in the full procedure. Both of these organic sections clearly recognize the distinctions pointed out. It matters not whether the quoted language from section 1 is to be regarded as two sentences, or a compound sentence. The first sentence thereof, or the first part thereof, complete in itself, expressly declares that initiative and referendum 'measures to be submitted shall be published as constitutional amendments are published.' This is a manifest assumption that publishing and submitting are different steps in the general procedure. To put it beyond doubt, this section, after providing for the publishing, at once proceeds in another sentence, or the second part of the compound sentence, to enjoin upon public officers, in submitting to the people the newly provided for 'measures, and in all matters pertaining to the form of all petitions,' to be guided by the general laws, and the act itself which submitted the amendment, 'until legislation shall be especially provided therefor.'

To what does this qualifying phrase relate? First let us repeat that the section, without qualifying words, says that the text of the new measures 'shall be published as constitutional amendments are published.' The Constitution itself, as we have seen, already ordains how the latter shall be published, and there was no necessity for any further declaration on that subject. But the Constitution leaves to the General Assembly to prescribe regulations for submitting amendments to a vote of the people. Accordingly, we find that the General Assembly has enacted section 2145, Rev. Stats. of 1908, which furnishes the procedure to be observed by public officers in submitting constitutional amendments and other questions to the vote of the people. Section 1 of article 5 having specifically provided that the new measures must be published as constitutional amendments are, then makes it the duty of public officers in submitting them to be guided by the 'general laws'--that is, the 'general statutes'--under which questions generally are submitted, until the General Assembly itself may provide especial legislation for forms of petitions, and for submitting initiative and referendum measures only. Some method for submitting new measures had to be provided. The procedure already prescribed by the 'general laws' was chosen. It is only to these statutory provisions that the qualifying closing words refer. The plain, ordinary meaning of the section leads to this conclusion, and there is no language therein opposing this view.

Bearing in mind the evident intent of the framers of the Constitution, which is exhibited in both these sections, to secure, by the same instrumentality, the widest publicity for all questions on which the people directly vote, we think that intent should be effectuated. If it be true, as those favoring the bill assert, that the words 'until legislation shall be especially provided therefor' refer to, and qualify, the first part of the section concerning publication, then by the same reasoning the specific direction embodied in the second, to observe the general laws in submitting the new measures and in preparing forms of petitions, also applies to the publishing of amendments; that is, the general statutes are to be observed in publishing amendments thereafter to be submitted. This, however, would give rise to an absurdity and create an inconsistency between the two parts of the section, because there are not, and never have been with us, any statutes governing the publishing of constitutional amendments. In other words, if the direction to the public officers to be guided by the 'general laws' applies to publishing, as well as to submitting, the new measures, the new amendment could not be enforced, since there are no statutes on the subject of publishing them.

If the aid of canons of constitutional and statutory construction is needed, we invoke the well-known rule, which, though not conclusive or of any special force, is, nevertheless, well established, that relative and qualifying words and phrases where no contrary intention appears, refer solely to the last antecedent with which they are closely connected. A few cases, quite in point, may be cited by way of illustration. In State ex rel. Attorney General v. Conklin, 34 Wis. 21, there was before the court for construction a by-law which provided that 'the annual meeting for the election of officers shall be held on the first Sunday of July in each year and the monthly meeting shall be held on the first Tuesday of each month at half past seven o'clock p. m.' Dixon, C.J., speaking for the court, said that the words 'at half past...