Pearce v. People ex rel. Tate

• Decision Date: 23 September 1912
• Parties: PEARCE, Secretary of State, v. PEOPLE ex rel. TATE.
• Court: Colorado Supreme Court

127 P. 224

53 Colo. 399

PEARCE, Secretary of State, v. PEOPLE ex rel. TATE.

Supreme Court of Colorado, En Banc.

September 23, 1912

Error to District Court, City and County of Denver; Harry C Riddle, Judge.

Mandamus by the People, on the relation of William H. Tate, against James B. Pearce, Secretary of State, to compel the Secretary of State to publish and submit or resubmit proposed constitutional amendments to the voters at the next general election in November, 1912. There was a judgment granting the petition and issuing the writ, and defendant brings error. Reversed and remanded.

Benjamin Griffith, Atty. Gen., and Philip W. Mothersill, Asst. Atty Gen., for plaintiff in error.

Frank E. Gove, William L. Dayton, Jacob Fillius, George C. Manly and Edmund J. Churchill, all of Denver, amici curiae.

N. Walter Dixon, of Denver, for defendant in error.

CAMPBELL C.J.

At a special session of the General Assembly convened in August, 1910, by proclamation of the Governor, there was proposed as an amendment to our Constitution, to be submitted to the people at the general election in November of that year for their approval or rejection what is generally known as the 'Initiative and Referendum Law.' A constitutional majority of the people approved it. Thereafter a large number of amendments to the Constitution proposed under authority of this new section were filed in the office of the Secretary of State for submission to the people at the general election to be held in November, 1912. The relator, Tate, conceiving that the amendment in question was not a part of our organic law, filed his petition in the district court of the second judicial district, setting forth therein in what its invalidity consisted, and praying for a writ of mandamus to compel the Secretary of State to publish and submit, or resubmit, the same to the qualified voters at the next general election to be held in November, 1912, and to hold for naught and ignore any and all petitions, which have been filed in his office in accordance with its provisions, that contained proposals for constitutional amendments and laws thereunder. The district court granted the prayer of the petition and issued its writ accordingly, to review which this writ of error has been sued out by the Secretary of State.

The only defect which the petition points out in connection with the submission of the proposed amendment was the conceded failure upon the part of the Secretary of State to cause the same to be published in the Session Laws of the special legislative session previous to the general election in 1910, at which the vote upon it was taken. Section 2 of article 19 of the Constitution, which provides how amendments thereto shall be proposed and submitted, is controlling of the question. That part of the section which is pertinent here reads: '* * * The proposed amendment or amendments shall be published with the laws of that session of the General Assembly, and the Secretary of State shall also cause the said amendment or amendments to be published in full in not more than one newspaper of general circulation in each county, for four successive weeks previous to the next general election for members of the General Assembly.' The contention of relator, briefly stated, is that the publishing of proposed amendments in the Session Laws for four successive weeks previous to the next general election is an essential condition precedent to the validity of their submission; that they may be proposed only at a regular, and not a a special, session of the General Assembly; but, if at a special session, that must be done at such a time as that publication in the Session Laws can be made as the foregoing language prescribes.

By section 9 of article 4 of our Constitution 'the Governor may, on extraordinary occasions convene the General Assembly by proclamation, stating therein the purpose for which it is to assemble.' There is no express provision in this section, or elsewhere in the Constitution, which prohibits the Governor from including in his proclamation convening a special session of the General Assembly proposals for amendments to the Constitution. It is claimed, however, that the inhibition arises, by implication, from the language above quoted, which requires that proposed amendments be published in the Session Laws. But it is obvious that, if this requirement is mandatory and applicable to insertion in the Session Laws, the particular objection here urged is...