People ex rel. Elder v. Sours

Mr. Justice Gabbert

concurring specially:

The sole question presented for determination is, whether or not article 20 is valid, in so far as that proposition has been raised by respondent, or he has presented any bearing upon that question which may affect his rights in the premises. The requisite number of members elected to each house voted to propose it. The notice of its submission to the people for their adoption or rejection, as required by the constitution, was given by publication in full in the Session Laws of 1901, and in a newspaper in every county for the required length of time before election. In addition, it was endorsed by nearly every political party in the state. On account of its features, it was very fully discussed through the public press. No one has been misled as to its scope and purpose. Every opportunity was afforded the people to become acquainted with its provisions before submission for their action. They have voted in favor of its adoption. In such circumstances, it should be upheld, unless for an ob*407jection which cannot he overcome, there is no escape from declaring it invalid. On the other hand, if the provisions of the constitution relative to amendments have not been complied with, then the conditions recited cannot save it from being declared invalid.

The constitution is the paramount law' of the state, created by the people themselves. They have reserved the right to amend that law, but wisely placed restrictions on the exercise of this power, and prescribed a procedure to be followed in the proposal and submission of amendments to their fundamental law. They are not above this law, and therefore cannot amend the constitution except through a substantial compliance with its provisions on the subject of amendment. All the objections raised to article 20 possessing any merit involve the single one of whether or not this rule of law has been observed.

The first question to consider is the claim that the amendment was not entered in full on the journal of the house. It was first introduced in the senate. Before final passage by that body it was amended by striking out certain words, and inserting the word “and” after “assessor.” • It was transmitted to the house in this form, and entered upon the journal of the latter as it read before amendment by the senate. This, however, the house journal clearly shows was an error. That journal does not show that any amendment was offered to it in the house. Its phraseology, as transmitted from the senate, is not disputed. The house journal shows that it was introduced in the house as received from the senate. The journal of the house does hot show it was returned to the senate after passage by the house. The journal of the latter contains all the amendment as passed by'the senate except the word “and.” The omission of this word did not change the meaning of the amendment in the slightest degree. It is clears *408therefore, from the house journal itself, that the difference between the respective journals of the two bodies in the wording of the amendment in so far as it relates to the words stricken out by the senate, is due solely to a clerical error in the house journal. What this journal does, in fact, show on the subject must be determined from its contents as a whole, and not from what may appear at any particular place. Thus tested, it is apparent that the proposed amendment as passed by the house and spread upon its records with the exception of the immaterial word, “and,” is identical with that passed by the senate, and the constitutional-provision requiring a proposal to amend the constitution to be entered in full on the journal of each house, is satisfied.

The next question is, whether the constitution may be amended by the addition of a new article. The power of the general assembly to propose amendments is expressed in article 19 in the broadest possible terms, and it is only necessary to consider the subsequent restrictions imposed on this power and the procedure provided for its exercise in order to determine that question. Neither limitation nor procedure inhibit the proposal of an amendment by way of a new article. Except as limited by the constitution, the authority of the general assembly to submit amendments is plenary. So long as they keep within the limitation imposed and follow the prescribed steps, it is immaterial in what form they submit an amendment to the people for adoption or rejection. Article 20 is, therefore, not invalid because an added one, unless some provision of the constitution relative to its submission has been violated.

The constitution prohibits the general assembly from proposing amendments to more than six articles at. any one session, and the next question to consider *409is, the character of modification which it was the purpose of the constitution to inhibit by the limitation under consideration. An amendment which modifies an existing provision of the constitution without an intervening cause is a direct change. Through such a change other provisions may be modified. The latter, however, is an incident of the first. If the incidental changes following a direct one affected the power of the legislature to propose amendments, then practically the constitution has in one breath conferred upon them the power to submit amendments, and in the next taken it away. All law must be given that reasonable construction which is capable of practical application. To measure the power of the legislature to propose amendments by both direct and incidental effects would render their authority in' the premises practically nugatory, a mere dead letter, and leave us without any rule whereby the validity of an amendment as measured by its effect upon existing articles of the constitution, could ever be determined with any degree of certainty at the time of its proposal. I therefore conclude that mere incidental modifications of the constitution resulting from an amendment do not come within the constitutional limitation relating to the number of amendments which may be proposed by the general assembly at any one session.

That article 20 does affect more than six preceding articles must be conceded, so the next proposition is, are these changes as pointed out by counsel for respondent, other than incidental? The specific purpose of article 20 is to confer upon the city of Denver and cities of the first and second class, the power of self-government with respect to certain governmental matters based upon special constitutional provisions. In this respect it introduces an entirely new feature into the constitution by the addi*410tion of a new and distinct article, having one comprehensive- ¿nd special object. The several provisions it contains appertain to the main subject which it embraces, and while they do change and modify the organic law so far as the municipalities affected áre concerned, these modifications are only the natural results following the néw plan of government provided specially for them, through which these changes are effected; hence, they are mere incidents of the main purpose of the amendment, and do not amend' the constitution in the sense which it was intended to inhibit by the limitation on the power of amendment through legislative proposal.

The final question is, whether or not more than one amendment is embraced in article 20. Having reached the conclusion that it has but- the one general purpose indicated, and that it does not amend any of the preceding articles in the constitutional sense, contemplated by article 19, that question is easily answered. Its several provisions with respect to the particular governmental subjects which it covers are each dependent upon the other in order to effect the main purpose, and therefore, do not come within the provision requiring several amendments to be submitted separately. In other words, the whole scope and purpose of the amendment was to provide home rule for certain cities with respect to certain governmental matters local in their nature. This is apparent from the contents-of the amendment itself, as well as the provisions designating what should appear upon the official ballot in order' to enable the electors to vote for or against its adoption. Its several provisions all relate to this one general object, and aré designed to accomplish this one purpose, in so far as they relate to cities designated in the amendment either, by name or class; so that as a whole, it constitutes but oné amendment, having’but *411one subject-and one purpose. What particular subjects, however, ’ relating, to govérnméntal affairs are embraced in the amendment is a matter for the convention assembled to form a chartér to most carefully consider. It should also be borne, in mind that there may b.e provisions of the constitution other than article 20 which must be observed in the creation of a charter.

As to the other questions discussed by my brother Steele which I have not touched upon, I agree with his conclusion without attempting. to discuss them, with the exception of the one affecting the rights of the adjacent towns, which I do not think presents any proposition which respondent can raise in these proceedings.

I concur in the judgment for petitioner.