People ex rel. Kiefer v. Ramer

• Decision Date: 05 June 1916
• Docket Number: 8798.
• Citation: 158 P. 146,61 Colo. 422
• Court: Colorado Supreme Court
• Parties: PEOPLE ex rel. KIEFER et al. v. RAMER, Secretary of State.

158 P. 146

61 Colo. 422

PEOPLE ex rel. KIEFER et al. v. RAMER, Secretary of State.

No. 8798.

Supreme Court of Colorado, En Banc.

June 5, 1916

Error to District Court, City and County of Denver; John A. Perry Judge.

Mandamus by the People, on the relation of John Kiefer and others against John E. Ramer, as Secretary of State. Judgment for defendant, and petitioners bring error. Affirmed.

John W Helbig, of Denver, for plaintiffs in error.

Fred Farrar, Atty. Gen., and Wendell Stephens Asst. Atty. Gen., for defendant in error.

HILL J.

The record discloses that the Twentieth General Assembly passed an act relating to intoxicating liquors (Laws 1915, p. 275), the substance of which is supplemental to or in aid of the enforcement of an amendment to the Constitution adopted at the November, 1914, election, pertaining to intoxicating liquors after January 1, 1916. The act provides penalties for its violation, and was to become operative and be in full force and effect from and after January 1, 1916. Section 31 is what is known as the safety clause. It recites that:

'The General Assembly hereby finds, determines and declares that this act and each and every sentence, phrase, clause, section and subsection thereof is necessary for the immediate preservation of the public peace, health and safety.'

The act does not contain the emergency clause. It was approved March 3, 1915. Within the time allowed by the Constitution a petition in due form praying for the reference of sections 1 to 30 of this act, signed by 20,235 qualified electors, was tendered to the secretary of state. This he refused to accept, whereupon the plaintiffs in error, as the representatives of the petitioners, instituted this action in mandamus to compel the secretary of state to receive, file, and comply with the prayer contained in the petition. A demurrer was sustained to the alternative writ. The petitioners declining to plead over, the action was dismissed.

In Van Kleeck v. Ramer, Secretary of State, decided April 3d, this year, 156 P. 1108, we held that the declaration of the Legislature contained in the act that it was necessary for the immediate preservation of the public peace, health, and safety is conclusive upon the courts, and that in such case they cannot review the question so as to allow the referendum petition. Counsel concede that such is the holding in the former case, and is applicable to the facts here, but makes the further contentions: First, that section 31 of this act was not passed by the General Assembly, and hence became no part of it; second, that the secretary of state has no right to determine whether any act is of the kind or class that is subject to reference; and, third, that there does not and cannot exist separately what are known as the safety and emergency clauses, that it is impossible to conceive of the two separate and distinct from each other, and that by the adoption of our initiative and referendum amendment to the Constitution it was intended that the safety clause, so-called, and the emergency clause should be one and the same, and that any other position will lead to illogical results, for which reason the safety clause, not having received a two-thirds vote, failed of its passage, which leaves the bill the same as though it had never been inserted, for which reason it was subject to reference.

The contention concerning the passage of section 31 of the act and what the Senate and House Journals show concerning it, other than that the bill as passed did not receive a two-thirds vote, was not alleged in the petition nor stated in the alternative writ, which was demurred to. During the argument upon the demurrer, counsel for the petitioners ask leave to amend the alternative writ so as to have it state what he now contends the House and Senate Journals show concerning these matters. The court sustained an objection to this request because it would make a different pleading than the one demurred to, stating to counsel that he could confess the demurrer and amend his petition if he wished to. This, counsel did not do, but took exceptions to the ruling, and then offered as evidence to sustain his position the printed journals of the Senate and House of the session at which this bill was passed. Objection was sustained to the admission of these journals for consideration upon the demurrer.

Assuming arguendo that in a proper case the printed journals are admissible, we find no error in the ruling in this respect and for which reason are of opinion that the question of the contents of the journals, other than that the bill did not receive a...