Speer v. People ex rel. Rush

• Decision Date: 21 February 1912
• Citation: 122 P. 768,52 Colo. 325
• Parties: SPEER et al. v. PEOPLE ex rel. RUSH et al.
• Court: Colorado Supreme Court

122 P. 768

52 Colo. 325

SPEER et al. v. PEOPLE ex rel. RUSH et al.

Supreme Court of Colorado

February 21, 1912

On Petition for Rehearing, April 5, 1912.

Error to District Court, City and County of Denver; James H Teller, Judge.

Mandamus by the People, on the relation of John A. Rush and others against Robert W. Speer and others. Judgment granting a peremptory writ, and respondents bring error. Affirmed.

H. A. Lindsley, Thos. R. Woodrow, and N. Walter Dixon, all of Denver, for plaintiffs in error.

Edwin Van Cise, of Denver, H. B. Tedrow, of Boulder, and W. H Malone, A. T. Monson, and W. H. Bryant, all of Denver, for defendants in error.

MUSSER J.

This writ of error was sued out to review a judgment of the district court, ordering that a peremptory writ of mandamus issue, requiring the respondents, who are plaintiffs in error here, to call a special election of the qualified electors of the municipality known as the city and county of Denver, and submit to the vote of such electors a certain proposed amendment to the charter of said city and county.

On November 22, 1911, there was filed with the clerk of the council of the city and county a petition that the amendment be submitted to the electors at a special election. In accordance with the provisions of the charter, the petition was transmitted to the election commission for examination. The petition was signed by 19,273 qualified electors out of a basic electorate of 47,371, and thus contained a sufficient number of signatures of qualified electors, and finding it so sufficient, and that the form of submission asked for by the signers was in accordance with the charter, the commission certified the result of its examination and the form of submission. The petition was then filed with the clerk. The steps taken by the commission were all in accordance with the provisions of the charter, and that instrument provides that when a petition contains a sufficient number of signatures the commission shall file the same with the clerk, who shall transmit it to the council, and the latter shall call the election at which the measure shall go upon the ballot under the form of submission certified by the commission. On December 12, 1911, the board of supervisors one of the two bodies forming the council, passed a resolution or bill calling the election for January 18th; but the other body, the board of aldermen, refused to do so, and passed a resolution that it would not. Thereupon the action for mandamus, which resulted in the judgment sought to be reviewed, was begun.

Before entering into the main question, it is sufficient to say, in answer to one contention of plaintiffs in error, that article 20 of the Constitution, pursuant to which the petition for the amendment is professed to have been made, says merely that a certain percentage of the qualified electors of Denver may petition the council for any amendment, and the council shall submit it at a special election, when requested, to be held not less than 30 nor more than 60 days from the filing of the petition. No form of petition, no procedure for the ascertainment of the sufficiency of the signatures, no form of submission, or other necessary details, are provided for in the Constitution. These, therefore, are all proper subjects to be regulated and controlled by charter.

The main contentions of plaintiffs in error are that the proposed amendment is in effect a new charter, and not an amendment; that a new charter cannot be submitted in this way, but only by and through the medium of a charter convention called and constituted as provided in article 20 and therefore the plaintiffs in error are under no legal duty to call an election and submit this so-called amendment; and, further, if the measure is amendatory of the charter, it is in reality several different amendments, which should be submitted separately on the ballot, and not as one amendment. So that, in brief, the contention of plaintiffs in error is that in any event the proposed amendment, if submitted and adopted, would be invalid for the reasons given; and therefore the council is under no legal duty to submit it.

The defendants in error, while combatting the contentions of plaintiffs in error and insisting that the proposed measure is in fact a charter amendment, contend that the council had no right to raise such questions; that its only duty was to submit the matter; and that the courts have no power to control or superintend this proposed legislation while in process of enactment. The district court held that the council had no right to raise the questions; that its one duty was to submit the proposed amendment, and refused to determine the questions raised. If the contention of defendants in error is right, a discussion and determination of the questions raised by plaintiffs in error would be altogether out of place. The principles which govern this case have already been settled by this court, and their application at this time will settle the matter, so far as the courts are now concerned.

When the General Assembly enacts a law, the General Assembly is the Legislature, leaving out of consideration of the question whether the Governor is a part of it when he approves or vetoes an act. When the General Assembly proposes an amendment to the Constitution, and it is submitted to and voted upon by the people of the state, the General Assembly and the people are the Legislature. People v. Mills, 30 Colo. 262, 70 P. 322.

There is no doubt that the powers exercised by these Legislatures in initiating, proposing, passing, voting upon, and enacting laws and constitutional amendments are purely legislative powers, and their exercise belongs to the legislative department of the government of the state. They are expressly provided for in the Constitution.

Section 5 of article 20 of the Constitution expressly provides that 'the citizens of the city and county of Denver shall have the exclusive power to amend their charter of to adopt a new charter, or to adopt any measure as herein provided.' The citizens of this municipality, so far as concerns their local municipal matters, have all the powers of a legislature with respect to their charter. Denver v. Hallett, 34 Colo. 393, 83 P. 1066; Londoner v. City and County of Denver, 119 P. 156.

It must be borne in mind that the power thus expressly granted to the citizens of Denver is a legislative one, and that it is exclusive in them. The power thus granted is plainly not executive nor judicial. It is a power to make laws, to legislate, and cannot be other than legislative. To say that power thus granted is not legislative would be as illogical and groundless as to say that the power of a court to hear and determine a cause is not judicial. As the power thus granted is expressly exclusive in the citizens, of necessity all other governmental agencies, departments, bodies, and officers are excluded from exercising it. This exclusion is direct, positive, and unequivocal. It is not a grant of power to the citizens and the council, or to the citizens and any one else; it is to the citizens only. How can it be a power to the citizens only, or how can it be an exclusive power in the citizens, if the council or any person or body, other than the citizens, are permitted to participate with the citizens in its exercise? There is not a word in section 5 of article 20, or in any other part, of the Constitution that gives the council any right to participate in the exercise of this power. On the contrary, the council is excluded from participating. To say that the council can participate with the citizens in the exercise of this power is in direct conflict with the language of the Constitution; yet this is the very thing the council has attempted to do. It has assumed to itself the right to judge of this legislation, and to say that it shall not be enacted, because it would be invalid if enacted. At the stage in which the proposed legislation now is, such an assumption on the part of the council is nothing more nor less than the attempted exercise of a legislative power, from which the council is excluded in express terms. The citizens of Denver, being the exclusive grantees of this legislative power, must, in the exercise thereof, be regarded as though they formed a part of the legislative department of the state.

All matters of legislation must be begun, initiated, or proposed before they can be finally enacted, and the beginning, initiation, or proposal is as necessary to complete the legislation as the final enactment; for, unless legislation is begun, it cannot be completed by final enactment. Hence the power given to the citizens of Denver to legislate includes, also, the power to begin or initiate legislation. The manner of doing this is expressly provided for in section 5 of article 20, immediately following the part quoted above; and it is there provided that a certain percentage of the qualified electors of Denver may petition the council for any measure, or charter amendment, or for a charter convention, and that the council shall submit the same, when so petitioned for, to the vote of the electorate of the municipality. The percentage of the electorate or citizens who thus initiate or propose or begin legislation for the citizens, and the electorate or citizens who are to vote upon it, constitute the legislature of the citizens, and, as has been seen, the power granted to this legislature is purely a legislative one.

In the enactment of a constitutional amendment proposed by the General Assembly, the measure is first prepared and introduced in one of the branches of the Assembly by some member; that house molds and passes it by a sufficient vote it is taken to the other house, where it goes...