Yenter v. Baker

• Court: Colorado Supreme Court
• Writing for the Court: STONE; MOORE; CLARK
• Citation: Yenter v. Baker, 248 P.2d 311, 126 Colo. 232 (Colo. 1952)
• Decision Date: 27 August 1952
• Docket Number: No. 16925,16925
• Parties: YENTER et al. v. BAKER, Secretary of State et al.

Page 311

248 P.2d 311

126 Colo. 232

YENTER et al. v. BAKER, Secretary of State et al.

No. 16925.

Supreme Court of Colorado, en Banc.

Aug. 27, 1952.

Rehearing Denied Sept. 15, 1952.

Erskine R. Myer, Fred E. Neef, Richard H. Shaw, Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Frank A. Wachob, Asst. Atty. Gen., for defendant in error, George J. Baker.

Henry & Keating, Denver, for defendant in error, Sue W. Railey.

STONE, Justice.

Section 1, Article V, of the Colorado Constitution, relative to initiative and referendum, provides, inter alia, that '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 * * *. 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 * * *. Initiative petitions * * * 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 secretary of state shall submit all measures initiated by or referred to the people for adoption or rejection at the polls, in compliance herewith. * * * The text of all measures to be submitted shall be published as constitutional amendments are published, and in submitting the same and in all matters pertaining to the form of all petitions the secretary of state and all other officers shall be guided by the general laws, and the act submitting this amendment, until legislation shall be especially provided therefor.'

Subsequent to the adoption of said Article V of the Constitution, the general assembly passed an act, being chapter 147, p. 480, S.L.Colo. '41, pertaining to initiative and referendum petitions in which it is provided in section 1 that after the title of a proposed amendment shall be fixed 'the secretary of state shall cause to be published once each week for two successive weeks in each county of the state * * * a true copy of the title and the text * * * which publication shall be completed within thirty days from the date the titles and submission clause' shall have been fixed. It further is provided in section 2 of the act that no petition for any initiative law shall be of any force or effect 'unless filed with the secretary of state at least eight months before the election at which they are to be voted upon.'

Petitions were filed with the secretary of state for initiation of a constitutional amendment to provide for levy of a severance tax, and by the action here sought to be reviewed, plaintiffs, as citizens, taxpayers and owners of oil and gas interests within the state, sought to have the secretary of state enjoined from placing said proposed amendment on the ballot and prayed for judgment of the court declaring the petitions for said amendment invalid on the grounds, first, that said petitions were not filed eight months before the general election, as required by section 2, chapter 147, S.L.Colo. '41; and, second, for the reason that the publication of the title, ballot title, and submission clause was not completed within thirty days from the date on which they were fixed, as required by section 1, chapter 147, S.L. '41.

By answer the secretary of state and the sponsors of the petitions challenged the validity of the legislative requirement that petitions be filed eight months before the election, on the ground that it violated and restricted the right provided in the Constitution to file initiated petitions at least four months before the election, and asserted the sufficiency of the publication of the title, ballot title and submission clause under the requirements of section 1 of the statute. It was stipulated between the parties that affidavits on file in the office of the secretary of state showed publication within the time required by statute except in the county of Saguache where the second publication was on a date six days after the expiration of thirty days from the date on which the title, ballot title, and submission clause had been fixed. After such answer and stipulation the trial court, on motion for summary judgment, held that both statutory requirements on which plaintiffs relied were invalid as in violation of Article V of the Constitution, and gave judgment denying the injunction and dismissing the complaint.

As to the first ground of asserted insufficiency of the proposed amendment, the Constitution provides that amendment must be filed 'at least four months' before the election, while the statute provides that no petition shall be of any force unless filed 'at least eight months' before the election. Plaintiffs in error insist that we must interpret the words 'at least four months' not as establishing a minimum requirement which would always permit the filing of amendments at any time not less than four months prior to election, but as permitting the legislature to increase the minimum time requirement beyond such four months period; that the action of the legislature increasing the requirement to eight months was procedural in character, and that the statute was enacted to protect the public against fraud and to safeguard the initiative amendment from abuses.

In considering this contention we note: First, It is universally held that such initiated provisions shall be liberally construed in order to effectuate their purpose; to facilitate and not to hamper the exercise by the electors of rights granted thereby. Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775; Vandeleur v. Jordan, 12 Cal.2d 71, 82 P.2d 455; State ex rel. Carson v. Kozer, 108 Or. 550, 217 P. 827. A construction as here urged would not be liberal nor effectuate the purpose of the constitutional provision.

Second, the initiative and referendum constitutional amendment provides that it shall be in all respects self-executing. It is not a mere framework, but contains the necessary detailed provisions for carrying into immediate effect the enjoyment of the rights therein established without legislative action. We said in Town of Lyons v. City of Longmont, 54 Colo. 112, 129 P. 198, 200:

'A constitutional provision is a higher form of statutory law which the people may provide shall be self-executing; the object being to put it beyond the power of the Legislature to render it nugatory by refusing to pass laws to carry it into effect.'

An equally important object of self-execution is to put it beyond the power of the legislature to render it nugatory by passing restrictive laws.

'Only such legislation is permissible as is in furtherance of the purpose, or as will facilitate the enforcement, of such provision, and legislation which will impair, limit or destroy rights granted by the provision is not permissible.' Baker v. Bosworth, 122 Colo. 356, 222 P.2d 416, 418, quoting 16 C.J.S., Constitutional Law, § 48, p. 99.

'If a constitutional provision is self-enforcing * * * then any legislation respecting the provision must facilitate enforcement and not curtail or limit any right created and conferred by the provision. If a legislative act undertakes to limit the provisions of the Constitution, then in a contest, the Constitution survives and the act falls.' Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371, 376.

'The power to impair would be the power to destroy.' Kitchens v. City of Paragould, 191 Ark. 940, 88 S.W.2d 843, 846.

'* * * all such legislation must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it.' Cooley's Constitutional Limitations, Eighth Edition, p. 171.

The legislative requirement that petitions must be filed at least eight months prior to election beyond question narrows and limits the right provided in the Constitution to file them not less than four months prior to the election. The fact, as urged, that proponents of other amendments in the past have been able to procure sufficient signers within the shorter period does not support a conclusion that the right provided by the Constitution is not seriously curtailed, narrowed or limited thereby.

Third, the rights reserved by the people included that to enact constitutional amendments 'independent of the general assembly'. 'Independent: not dependent; not subject to control, restriction, modification, or limitation from a given outside source.' Black Law Dictionary. To construe the constitutional amendment as contended by plaintiffs in error would make the initiative process in a vital provision dependent upon the general assembly. It would necessarily result either in giving the general assembly authority to modify and limit the minimum time for filing petitions to such an extent as virtually to nullify the constitutional provision, or in putting the burden and responsibility on the court to determine whether the legislative limitation was reasonable or unreasonable, and thus ultimately would require that the petitions be filed at such time prior to the election as might be determined by a court. Plainly it was not the intent of the people, in making the self-executing constitutional amendment, to leave the fixing of the time within which petitions must be filed either to the legislature or to the courts. The people reserved to themselves the power of initiative enactment.

Fourth, in the constitutional provision the people provided the times and methods of procedure and specifically declared the limit of legislative discretion by saying:

'The text of all measures to be submitted shall be published as constitutional amendments are published, and in submitting the same and in all matters pertaining to the form of all petitions the secretary of state and all other officers shall be guided by the general laws, and the act submitting this amendment, until legislation shall be especially provided...