Van Kleeck v. Ramer

• Decision Date: 03 April 1916
• Docket Number: 8738.
• Citation: 156 P. 1108,62 Colo. 4
• Parties: VAN KLEECK v. RAMER, Secretary of State.
• Court: Colorado Supreme Court

156 P. 1108

62 Colo. 4

VAN KLEECK v. RAMER, Secretary of State.

No. 8738.

Supreme Court of Colorado, En Banc.

April 3, 1916

Rehearing Denied May 1, 1916.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Petition by Henry Van Kleeck for writ of mandamus against John E Ramer, Secretary of State of the State of Colorado. The action was dismissed, and petitioner brings error. Affirmed.

In 1910, section 1 of article 5 of the Constitution of the state was amended so as to read 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. * * *

'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. Referendum petitions shall be addressed to and filed with the secretary of state not more than ninety days after the final adjournment of the session of the General Assembly, that passed the bill on which the referendum is demanded. * * *' Session Laws 1910, p. 11 et seq.

At the twentieth session of the General Assembly an act concerning civil service, known as House Bill 173, was passed and approved, to which was appended:

'The General Assembly hereby declares this law is necessary for the immediate preservation of the public peace, health and safety.' Session Laws 1915, p. 143.

Within 90 days after the Twentieth General Assembly adjourned a petition having for its object the reference of the foregoing act, and containing the necessary number of signatures and sufficient in law in all respects, was tendered to the secretary of state for filing, which he refused to accept. Thereupon plaintiff in error, as petitioner, instituted an action in mandamus against that official, the purpose of which was to compel him to receive and file the petition. The alternative writ set out the matters above narrated, and also averred that the act in question was not necessary for the immediate preservation of the public peace, health, or safety, nor necessary for the preservation of the finance of the state, or the public service, or the efficiency of the departments of the state, or the welfare and maintenance of the public institutions of the state, and that no necessity existed, or is likely to exist in the future why the General Assembly should declare the act was necessary for the immediate preservation of the public peace, health, and safety. To this writ the respondent demurred, upon the ground that the court was without jurisdiction to hear or determine, or entertain the alternative writ, for the reason that the matters complained of therein are not within the province of the judicial department of the government to determine, but are wholly legislative, and that the writ did not state facts sufficient to warrant the relief sought by petitioner, nor state facts sufficient to constitute a cause of action as against the respondent, because the act, which it is sought to refer, declares that it is necessary for the 'immediate preservation of the public peace, health or safety.' The demurrer was sustained, and the action dismissed. Petitioner brings the cause here for review on error.

Scott and Teller, JJ., dissenting. by Const. art. 3, for the purpose of compelling the secretary of state to receive and file a referendum petition as to an act which the Assembly has so declared.

William W. Grant, Jr., and William E. Hutton, both of Denver, for plaintiff in error.

Fred Farrar, Atty. Gen., and Clarence M. Hawkins, Ass't. Atty. Gen., for defendant in error.

GABBERT, C.J. (after stating the facts as above).

The ultimate question is whether the declaration by the General Assembly that the act is necessary for the immediate preservation of the public peace, health, or safety is conclusive that it is a statute which excepts it from the referendum. In Re Senate Resolution, 54 Colo. 262, 130 P. 333, in response to questions propounded by the Senate, we said with respect tot the constitutional provision, which recites that the power reserved, designated the referendum, 'may be ordered except as to laws necessary for the immediate preservation of the public peace, health or safety,' that:

'Whether a law is of this character is for the General Assembly to determine, and when it so determines, by a declaration to that effect in the body of a proposed act, we are of the opinion that such declaration is conclusive upon all departments of government, and all parties, in so far as it abridges the right to invoke the referendum.'

It is now urged that this question was not involved, not raised by the questions propounded, nor argued in the briefs, and not germane to the particular points under consideration. When the situation which confronted the Senate is understood, as appears from the statement preceding the opinion, it is clear that the question we determined, which is now urged is dictum, was involved.

At the fifteenth session of the General Assembly, in obedience to a constitutional amendment adopted at the general election of 1902, an act was passed providing for an eight-hour day for persons employed in mines underground, and in specified ore reduction works. Laws 1905, p. 284. At the eighteenth session of the General Assembly an act was passed (Laws 1911, p. 454) of a similar nature, which in express terms repealed the act passed in 1905. The act of 1911 was approved June 2d of that year. It did not contain any declaration to the effect that it was necessary for the immediate preservation of the public peace, health, or safety. August 3, 1911, and within 90 days after the Eighteenth General Assembly adjourned for the session, there was filed with the secretary of state a petition purporting to be signed by the requisite number of legal voters, asking that the 1911 act be referred to the people for approval or rejection at the ensuing general election. On July 2, 1912, there was filed with the secretary of state a petition purporting to be signed by the necessary per centum of the legal voters of the state, requesting that there be submitted at the next general election, for adoption or rejection, a proposed eight-hour law, which in some respects, at least, was in conflict with the act of 1911. This initiated law purported to expressly repeal the acts of 1905 and 1911. Both measures were published by the secretary of state, and, at the general election in November, 1912, were adopted. When the questions were submitted by the Senate the General Assembly had under consideration a proposed eight-hour law, the purpose of which was to take the place of the referred and initiated acts. It thus appears, as stated in the opinion, that the Senate was confronted with an anomalous situation, because two acts were upon the statute books, covering the same subject, in conflict with each other; one purporting to repeal the other, and that from the questions propounded, though not directly expressed, it was the desire of the Senate to pass an eight-hour act which could not be suspended under the referendum, provided it had authority to do so in such manner as would prevent the situation then presented from being repeated in the future. It was therefore apparent that in order to enable the General Assembly to pass an eight-hour law relating to the employment of men engaged in working in mines which could be made effective and not suspended in its operation by invoking the referendum, it was necessary to advise the Senate, in response to its questions, how this desirable result could be accomplished, and hence the contention that what was said with respect to the power of the General Assembly to declare that a law was necessary for the immediate preservation of the public peace, health, or safety, and that such declaration was conclusive upon all departments of government, in so far as it abridged the right to invoke the referendum, was not dictum, but was directly involved and germane to the questions propounded by the Senate.

Since answering these questions, the General Assembly has been guided in passing laws by what was there stated. Our opinion was given in obedience to the Constitution, which requires the Supreme Court to give its opinion upon important questions, upon solemn occasions, when required by the Senate or House of Representatives. Certainty of the law is always desirable, and when a decision is rendered, it should not be changed, unless it is clearly wrong.

Counsel for petitioner now contend that the declaration in 54 Colorado, whether a law is of the character which excepts it from the referendum, is for the Legislature to determine, is wrong. Their premise is that it is a judicial function to scrutinize an act, the General Assembly has declared 'necessary for the immediate preservation of the public peace, health or safety,' and...