People ex rel. Tate v. Prevost

• Decision Date: 09 June 1913
• Citation: 55 Colo. 199,134 P. 129
• Court: Colorado Supreme Court
• Parties: PEOPLE ex rel. TATE v. PREVOST et al.

134 P. 129

55 Colo. 199

PEOPLE ex rel. TATE v. PREVOST et al.

Supreme Court of Colorado, En Banc.

June 9, 1913

Error to District Court, Pueblo County; J. E. Rizer, Judge.

Quo warranto by the People, on relation of William H. Tate against Victor I. Prevost and others. Judgment for defendants, and relator brings error. Affirmed.people to change the fundamental law is a political question, and not for the courts; and the courts can not assume that this power in the people will be abused. (3) The provisions of section 6, of the article as amended, are effectual to make the regulation of municipal elections, the levy and collection of taxes for municipal purposes, and special assessments matters of municipal concern. All the provisions of the amendment are germane to its general purpose, and it was properly submitted as a single amendment.

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

Adams &amp Gast and Robert Cowles, all of Pueblo, for defendants in error.

Yeaman & Gove, of Denver, amici curiae.

MUSSER J.

The plaintiff in error brought an action in the nature of quo warranto to test the validity of the charter of the city of Pueblo, claimed to have been framed and on September 19 1911, adopted by the electors, pursuant to the provisions of section 6 of article 20 of the Constitution, as that section existed at that time. By this charter commission form of government was provided for the city. A general demurrer was sustained to the complaint, and, the plaintiff not pleading further, the action was dismissed at his costs. It is to review this judgment and the action of the court in sustaining the demurrer that this writ of error is prosecuted.

The discussion, which will now determine this case, makes it unnecessary to state the contents of the complaint or to discuss the alleged defects which it was therein alleged and claimed rendered the charter void. After the judgment, and at the general election in November, 1912, the people of this state adopted an amendment to section 6 of article 20 of the Constitution, which is popularly called 'The Home Rule Amendment,' and which was proposed under the initiative and referendum provisions contained in section 1 of article 5 of that instrument. It was conceded at the oral argument, and it is undoubtedly true, that if the so-called 'Home Rule Amendment' was legally proposed and adopted, so that it became a valid part of the Constitution, the alleged defects in the charter and government of the city have been cured, if they ever existed, and that therefore the judgment must be affirmed.

It appears that there were a number of constitutional amendments, proposed by the General Assembly and under the initiative, that were submitted to the people and voted upon at the election in November, 1912. In addition to the home rule amendment to section 6 of article 20 another amendment to that article was proposed and voted upon. It is claimed that amendments to 10 articles in all were proposed, by the General Assembly in part, and under the initiative in part, filed in the office of the Secretary of State, and voted upon, and that amendments to at least six articles had been so filed before any proposed amendment to article 20 had appeared. It seems to be the position of the plaintiff in error that, when proposed amendments to six articles, whether all were proposed by the General Assembly or all by the initiative, or in part by the one method and in part by the other, have been filed in the office of the Secretary of State for submission to the people, any amendment to any article other than one of the six already affected, thereafter filed, would be a nullity, even though submitted to the people and by them adopted at the election. It is claimed that this result is brought about by section 2 of article 19 of the Constitution, and section 1 of article 5 thereof. Section 2 of article 19 provides that the General Assembly may propose any amendment or amendments to the Constitution, and for the manner of their proposal, publication, and their submission to the qualified electors of the state for approval or rejection, and closes with a proviso that if more than one amendment be submitted at any general election, each shall be voted upon separately, and the votes thereon cast separately counted, and then ends with this sentence: 'But the General Assembly shall have no power to propose amendments to more than six articles of this Constitution at the same session.' Section 1 of article 5, which contains the initiative and referendum provisions, so far as it can have any bearing upon any question in this discussion, is as follows:

'Section 1. The legislative power of the state shall be vested in the General Assembly consisting of a Senate and House of Representatives, both to be elected by the people, 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, and also reserve power at their own option to approve or reject at the polls any act, item, section or part of any act 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, and every such petition shall include the full text of the measure so proposed. Initiative petitions for state legislation and amendments to the Constitution, shall be addressed to and filed with the Secretary of State at least four months before the election at which they are to be voted upon.

'The second power hereby reserved is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health or safety, and appropriations for the support and maintenance of the department of state and state institutions, against any act, section or part of any act of the General Assembly, either by a petition signed by five per cent. of the legal voters or by the General Assembly. * * * The veto power of the Governor shall not extend to measures initiated by, or referred to the people. All elections on measures referred to the people of the state be held at the biennial regular general election, and all such measures shall become the law or a part of the Constitution, when approved by a majority of the votes cast thereon, and not otherwise, and shall take effect from and after the date of the official declaration of the vote thereon by proclamation of the Governor, but not later than thirty days after the vote has been canvassed. This section shall not be construed to deprive the General Assembly of the right to enact any measure.

'The Secretary of State shall submit all measures initiated by or referred to the people for adoption or rejection at the polls, in compliance herewith.'

Whenever a constitutional amendment is attacked on account of some alleged violation of the Constitution in its submission, it is a universal rule that it must appear beyond a reasonable doubt, both as to law and fact, that the Constitution has been thus violated before the amendment will be overthrown. People v. Sours, 31 Colo. 369, 74 P. 167, 102 Am.St.Rep. 34.

Even were the law with respect to amendments to six articles, as the plaintiff in error claims it is--that is, that when amendments to six articles have been filed, an amendment to another article thereafter filed is void (which we do not concede)--he has not made it appear beyond a reasonable doubt that such a law was violated in the submission of the home rule amendment. In order to arrive at that conclusion, he contends that a statute relating to the publication of initiated laws, which was itself initiated and voted upon at the election in November, 1912, was a constitutional amendment, though in form a statute. This measure was initiated as a statute, and submitted and voted upon as such. There was nothing in or about it that in any manner indicated that those who had initiated it, or the people who voted upon it, had a thought or a suspicion that it was a constitutional amendment or intended for one. At the same election there was submitted a constitutional amendment amending the section relating to the publication of constitutional amendments, and the statute evidently was framed and voted upon with the idea in mind that the constitutional amendment would be adopted. The plaintiff in error asserts that the publication of constitutional amendments was controlled by the Constitution, and that the statute would have been unconstitutional as such. After claiming that the statute would have been unconstitutional if adopted, he contends that the measure, though to all other appearances and indications a statute, was in fact a constitutional amendment. Reduced to its last analysis, the argument is this: If an initiated measure contravenes the Constitution, though it is in form a statute, professedly intended as such, with nothing about it to indicate that it was intended for a constitutional amendment, nevertheless it is a constitutional amendment. Such a position cannot be maintained in reason or logic. To say that the people could thus, without intending to do so, and unwittingly, amend their Constitution is a proposition that carries with itself its own refutation. The only reasonable thing that can be said of a measure that in form and to all indicated intents and purposes is a statute which contravenes the Constitution is, not that it is a constitutional amendment, but that it is itself unconstitutional.

It is further said in the brief of the plaintiff in error: 'If we eliminate the socalled statute, the effect of which is to amend article 5, there were filed amendments to six articles to wit, * *...