dissenting.
The decision of the majority is, in my judgment, radically wrong. The importance of the amendment, and the public interest in it, but chiefly my firm con-victim that constitutional inhibitions have been ignored and a precedent established which overturns, without saying so, our previous decisions, lead me to express at length my views upon the legal questions involved.
And it is only legal questions that will be discussed. It has often been declared by courts in passing upon the validity of statutes and constitutional amendments that with the wisdom or policy thereof they have nothing whatever to do. That laymen sometimes believe that a court, in sustaining or invalidating an act of the legislature, is merely announcing the views of its individual members with respect to the merits of the measure may not be surprising; but it is amazing to find, as we do in this case, a lawyer’s brief in which many pages, are de*412voted to an attempt to impress upon the court the wisdom of a measure whose validity is the only thing it can consider. My associates, in thinking that it should be upheld, and I in believing it to be invalid, are not thereby expressing our approval or disapproval of the system of municipal government which this amendment provides. Our individual views as to its policy should find no place in a judicial opinion. We are confined to the simple question as to whether it is now a part of the organic law.
Under our form of government, a written constitution is intended to be more permanent than an enactment of the legislature. It is the product of a convention chosen for the specific purpose of framing the supreme law of a sovereign state, and for this most important work of a free people selections are usually made by them from the different walks of life of men of high character and special fitness. There are two conceptions, or ideals, of constitution making, both of which are exemplified in the different states of the Union.. One is that a constitution should be general in its provisions, that it ought not to descend into details, and never into the sphere of ordinary law making, and should leave each of the three great departments of government as much latitude as possible in exercising its functions. The other places upon the three departments many and minute limitations which experience has shown to be essential to good government. Our constitution is a conspicuous example of the second class. It has worked well in practice, and is a monument of the wisdom and patriotism of its framers, some of whom are still kept in the public service' which they so auspiciously began more than a quarter of a century ago.
No product of the human mind, however, is perfect, and so the framers of our constitution provided in article 19 two ways of making changes in it. When *413the convention in its address to the people said that liberal provision had been made, and frequent opportunities given, for amending, the constitution when experience and public policy may require it, they had in mind similar provisions in other constitutions upon that subject. In many of them the methods for a change were greatly restricted, and in some any proposal by way of an amendment had to be passed upon by at least two successive legislatures before the people were permitted to vote upon it; and so our constitution, in comparison with some others, may be frequently altered. — Jameson on Constitutional Conventions (4th ed.) §551.
. Article 19, which is set out in full in the opinión of Mr. Justice Steele, relates to the subject of amendments, and the two methods therein presented are commonly called the convention, and the legislative method to which due attention will be given hereafter.
At the threshold of the case we are met by an argument advanced by some of the counsel for relator that the question as to the validity of this amendment is political and not judicial; that the only inquiry which the court is authorized to make is, (1) Did the proposal receive the vote of two-thirds of all the members elected to each house? (2) Did a majority of the people at the election vote for its approval? If both requirements are met, further judicial inquiry ends.
This argument is inconsistent with the position taken by relator himself-when he invoked the court’s jurisdiction for the purpose of obtaining an adjudication as to the constitutionality of the amendment. That fact, however, is not conclusive against him, for consent cannot confer upon a court jurisdiction of a subject-matter with which it is not already vested.
The case relied on-in support of this contention *414is Luther v. Borden, 7 How. 1. Instead of being authority for, it is against, relator'. That celebrated case, as stated by Taney,. C. J., arose out of the unfortunate political differences which-agitated the people of Rhode Island in 1841 and 1842, culminating in the Dorr rebellion. There were, two rival state governments, each of which, claimed to be legitimate. The controversy came before the supreme court of the United States, and, as stated in the syllabus of the opinion, it was held that the federal courts had- not the power to try and determine which was the duly constituted government of a state, because, so far as the United States was concerned, this question belonged to the political, and not the judicial power; and, so far as the state was concerned, having been decided by the highest court of the state acting as a part of the government of the state, the federal courts were bound to follow its decision. It was further held that under the federal constitution and laws of congress the power to decide whether a government organized in a state is the duly constituted government of the state was vested by congress in the president, and after he has decided the question, the courts of the United States are bound to follow his decision. In the course of the opinion it was stated that the question which the plaintiff there proposed to raise was political and not judicial. By this was meant that, so far as the federal courts were concerned, it was political. The court observed, however, that, although the highest court of Rhode Island had decided in favor of what was called the Charter government, it was difficult to see how that question could be decided by the state judiciary if the existence of the court itself was in issue; for if the authority of that government under which the court was created should be annulled and overthrown, the power of its courts and other officers is annulled with it, and if the *415state courts should enter upon the inquiry proposed in that ease and come to the conclusion that the government under which it acted had been displaced by the opposing government, it would cease to be a court, and would be incapable of pronouncing a decision upon the point in trial.
It is clear that the questions there decided were entirely different from those here presented. The question here is not which of two rival state governments is legitimate, but whether or not a proposed amendment to the constitution of a state, whose government is conceded to be lawful and under which the court itself exists, has been legally adopted in accordance with the provisions of the recognized organic law.
Nesbit v. The People, 19 Colo. 441, is authority for the proposition that the question here presented is judicial, and within the jurisdiction of this court to determine. Indeed, most of the counsel for relator themselves concede it. In the Nesbit case this court assumed jurisdiction of a similar question, and although, under the particular facts of that case, it said that the. question of the validity of the constitutional amendments there considered was practically removed from the sphere of mere judicial authority to the sphere of the political power of the state, the court, nevertheless, assumed ■ jurisdiction and declared the amendments under consideration valid because repeated recognition thereof by all three departments, and long acquiescence therein by the people, impressed them with a validity which at first they did not possess. It was clearly stated, however, that at some stage, and in- some- circumstances, the question would be solely a judicial one, and the authorities expressly so declaring were referred to with approval. My understanding is that my associates agree with me. that the questions before us- are- judi*416cial and not political, though in one of the opinions it is said that “in the main” they are judicial. It is distinctly stated, however, that the legislature cannot propose an amendment to the constitution not in substantial compliance with its provisions. Having, therefore, determined that the question is judicial and jurisdiction to try and determine it is vested in this court, I proceed to a consideration of the objections which are fatal to this amendment, and they may be thus stated:
(1) The journals of the two houses show that the same bill was not voted for by both bodies; (2) the proposal, though called “an amendment,” contains at least two amendments which should have been separately submitted and voted on; (3) quaere, if the general assembly has the power to submit as an amendment new or additional articles to the constitution; (4) but if it has, article 20 amends more than six articles of the existing constitution in direct contravention of section 2 of article 19.
1. It was entirely competent for the general assembly in submitting this amendment to conform to the constitutional procedure prescribed for the passing of bills. It might, however, have done so by resolution or other appropriate proceeding. The method chosen was by bill, which was introduced in the senate by Senator Rush as “Senate Bill No. 2.” The senate journal shows that the bill was amended in some particulars and an engrossed copy transmitted to the house.
When the senate’s engrossed copy was received by the house, the bill was referred to as “Senate Bill No. 2” (printed house journal, p. 606). The next reference is on page 646, when the bill was read for the first time and referred to a committee as “S. B. No. 2.” Thereafter it was reported back as “S. B. No. 2” to the committee of the whole (p. 664) and *417then ordered placed on the calendar as “S. B. No. 2.’,’ On the 64th day of the session, the journal (pp. 707 and 708) shows that the house went into committee of the whole on “S. B. No. 2,” and when it rose made the following recommendation:
“Mr. Speaker, Your committee of the whole beg leave to report they have had under consideration the following bill, in the course-of which it was read at length, being the second reading thereof, and we make the following recommendations thereon:
“S. B. No. 2<, by Senator Bush (as amended) * * * The committee of the whole recommend that the bill be referred to the committee on revision and constitution, be engrossed and placed on third reading and final passage.”
And this report was adopted.
Under the rules bills are referred to the committee on revision to be put into proper form. That was done in this case and the committee reported it out, with the recommendation that it be placed on third reading (p. 723). On its final passage (p. 740) the bill was entered in full in the journal and designated as “S. B. No. 2 by Senator Bush (as amended).”-
The bill as passed by the senate was entered in full on its journal, and as passed by the house what purports to be a like entry was made. The bill was enrolled and lodged in the office of the secretary of state. It was published in the Session Laws of 1901 and in the newspapers prior to - election, as required by section 2 of article 19. The bill, as spread on the senate journal, does not correspond to the enrolled or published copy, and materially differs from the bill which the house journal shows was passed by the house. In that portion of section- 3, which prolonged the official tenure of certain county officers of the former county of Arapahoe and constituted *418them as officers of the new city and county of Denver, the five judges of the district court, the county judge and the district attorney of the former county were excluded from the bill' which the senate passed, as its manuscript journal shows. The manuscript house journal and both printed journals show that the bill, as it passed the house, included those officers. That the difference between the two original journals and between these bills as passed by the respective houses is material, appears to me so plain that no argument is necessary to show it. As passed by the house the bill does, and as passed by the senate it does not make the district judges, the county judge and the district attorney .officers of the new city and county of Denver. How is it possible to say that the two bills are the same?
That the respective manuscript journals on file with the secretary of state, as prepared by the officers of the general assembly charged with that duty exhibit this difference, is conceded. If we adhere to our previous decisions on this subject, this discrepancy is fatal to the validity of the submission. Section 2 of article 19 declares that the proposal for an amendment must be voted for by two-thirds of all the members elected to each house, and the amendment, as thus passed, must be “entered in full on their respective journals.” If the senate passed one bill and the house another, then this amendment as enrolled and published was not voted for by • two-thirds of all the members of each house. That the journals of the houses are the best evidence of what, in fact, those bodies did, and that they are conclusive', has been repeatedly ruled in this state.In re Roberts, 5 Colo. 525; Hughes v. Felton, 11 Colo. 489; Nesbit v. The People, supra; M. M. Life Ins Co. v. Colo. L. & T. Co., 20 Colo. 1, 5.
But by the majority opinion the established doc*419trine is practically ignored when it is said that .other evidence than the journals satisfies them that the two houses passed the same bill. It is insisted that the enrolled bill is the highest evidence of what the two houses did. The enrolling of a bill is not required when the general assembly uses that vehicle in submitting amendments. In the Nesbit case, the practice was commended, but it was not thereby intended that an enrolled bill not commanded should be higher evidence of what in fact was enacted than the entry of the bill in full on the journals, which the constitution itself expressly says shall be done. But here the enrolled bill and the senate bill are not only different from the bill as printed in the newspapers, but different from the bill which the house journal shows was passed by that body.
Moreover, where, as under our constitution, a bill for an act of legislation must be enrolled and filed with the secretary of state, it is only prima facie evidence. If the journals contradict it, the journals control. A fortiori, where an enrolled bill is not required, but where its entry in full on the respective journals must be made, the latter is conclusive in case of conflict. But if we look to the entries of the house journal other than that which discloses the entry of the bill as passed, it is conclusive, to my mind, that the house made some amendments to the senate bill.That there is no direct statement therein that the house amended the bill, or that house amendments were returned to the senate for concurrence, is not significant in view of the fact that in proceedings of this sort no such entry is necessary; and if, as indicated in the opinion of my brother, Steele, the omission from the record that amendments were made is some evidence that the bill was not amended, though no such record is necessary, then the evidence that the bill was amended by the house is infinitely *420stronger by tbe record which was made in the house journal, and which the constitution makes absolutely essential, from which it appears that the bill, as passed, materially differs from the engrossed bill sent over- by the senate. Besides, the house journal shows that the bill was considered in committee of the whole, and when it emerged therefrom and was recommended for final passage, it was-, for the first time, referred to as “S. B. No. 2 (as amended),” and thereafter received the same designation on the house journal. The house also ordered the bill engrossed. If it had not been amended, there was no -necessity for that, for the senate copy was already engrossed. These facts are, to say the least, some evidence of amendment; especially significant -is it that before that time the house journal described the bill as “S. B. No. 2.”
The authorities- of most of the states, including our own, are in accord with my conclusion: Koehler v. Hill, 60 Ia. 543; Prohibitory Amendment Cases, 24 Kas. 700; State v. Tufly, 19 Nev. 391; State v. Brookhart, 113 Ia. 250; State v. Herried, 10 S. Dak. 109.
The constitutions of Kansas, California, Iowa and Nevada provide that amendments “shall be entered on the journals.” They do not say, as ours does, “in full.” The supreme courts of California and Kansas say that an identifying reference in the journals is a. sufficient compliance with this provision, while in Iowa and Nevada amendments must be entered in full.—Prohibitory Amendment Cases, supra; Koehler, v. Hill, supra; State v. Tufly, supra; Oakland Paving Co. v. Tompkins, 72 Calif. 5.
That question, however, is beyond discussion in this state, -for our constitution declares that the amendments must be “entered in full on their respective journals,” and all the authorities agree, as shown by the able review in State v. Herried, supra, *421that the only way to comply with snch a provision is to do what the language commands, namely, enter correctly every material word of the amendment. That was not done in this case, if, as relator contends, the house passed the same bill as the senate. He ought not to be heard to say to the contrary, for. the house journal, the best evidence, conclusively proves that, if it did, the entry of the amendment in full was not made. So that whether different bills were passed by the two houses, or the house failed to make the necessary entry of its doings, in either event the proposal of the amendment was fatally defective.
To say that the will of the people cannot be thwarted by the error of a journal clerk is an easy, but erroneous, way of evading the mandate of the constitution. Its framers knew that the journals are made up by clerks, and not members. And when the constitution said that amendments should be entered in full on the journals, the members of the assembly should see that the injunction is obeyed. If an error of a clerk is tó be an excuse for disregarding mandatory provisions of the constitutions, they might as well be omitted.
2. At the oral argument one of the learned counsel for relator made the startling assertion that when the general assembly called this submission “an amendment,” that made it so, even though the court might readily conclude that it embraced a large number of separate and distinct amendments. This •cannot be the law. If it were, thén, by the same token, the general assembly might say that the vote of 18 out of a total of 35 members of the senate constitutes two-thirds of that body, or the canvassing board •might say that less than one-half of the electors voting in favor of the proposal constitutes a majority. "Whether this proposal was one amendment or several -is strictly a judicial question. A reference to the *422history of municipal government in the city of Denver and of the controversy over its school districts will aid in determining whether this submission is one or more amendments.
■ For many years the city of Denver has existed under, and been governed by, a special charter granted by the legislature of the territory. This charter was saved in the schedule of the constitution, and has been frequently amended and revised by the general assembly. The city has always been regarded as a special subject of legislation, separate and distinct from municipalities organized under the general laws. Its inhabitants became dissatisfied with the management of local affairs by its own officers chosen as its special charter provided, and the general assembly was so importuned by them to protect the city against itself that the charter was amended in 1889 by empowering the governor to appoint a board of public works to have charge of all public improvements; and in 1891 the charter was again amended so as to vest in the governor power to appoint a fire and police board to have charge of the police and fire departments. It was supposed that these important departments would, to the city’s good, be thus removed from local management and from local politics.
It was not long before the pendulum of public opinion began to swing the other way, and the demand for home rule-became so pressing that the general assembly in 1901 submitted for the approval of the people the amendment which we are now considering, which, among other things, restores to the city of Denver complete control of its own municipal affairs, absolutely free from all constitutional restraint and from any supervision by the general assembly.
Within the same territory covered by the city of Denver there are several distinct and independent *423school districts. District No. 1 was organized under a special charter granted by the territorial legislature in 1874, and it was also saved by the schedule. Districts Nos. 2, 7, 11 and 21 are organized under the general school laws. District No. 1 comprises that portion' of the city which was first laid out, and embraces the largest part of the business section, having but a small school population, but a large amount of valuable property. Repeated efforts have been made by the other school districts, which comprise the residence, and more remote, portions of the city having a large school population, but a smaller amount of taxable property, to effect a consolidation with district No. 1, so as to equalize the burdens of taxation, centralize school management, and save, expense. These attempts, which many people deemed worthy of success, have always failed, the courts holding that only by an amendment to the constitution could such consolidation be effected; because the special charter stood in the way.—In re School Districts, 26 Colo. 136; In re Consolidation, 23 Colo. 499.
In the light of the foregoing, we are better qualified to determine the subjects of this proposal. Strictly speaking, the scheme, or schemes, of government furnished for the bodies politic mentioned therein are not its subjects. Rather the subjects treated of are the city of Denver, county of Arapahoe, cities of the first and second class, and school districts. For our present purpose, we may treat city and county together as constituting one subject. Still, -it is apparent that the city and school districts are, in their nature and in law, distinct subjects. The city of Denver, by the schedule of the constitution and uniformly by the general assembly and the courts, has been treated as a separate subject of legislation. School districts come under the general head of education, to which article 9 of the constitution is ex*424clusively . devoted, and the-law-making power and the courts have recognized them as entirely distinct, from all other public bodies corporate. That the city of Denver and- the school districts are- entirely distinct subjects is as clear as anything can be.
But suppose, as relator contends, that the subject, or object, of article 20 is the scheme, or schemes, of government therein provided. His counsel repeatedly assert that the only object of the 'amendment is to give home rule to Denver. They are strangely oblivious of the fact that section 7 disincorporates several existing school districts, consolidates the same territory into a new body politic, and names a temporary board of directors to manage it, until a new board is elected under the general school laws of the state, which thereafter shall apply. It is beyond dispute that at least two wholly distinct and dissimilar schemes are furnished. There is not a thing in common between the city of Denver and the school districts except that they occupy the same territory. Neither under the former laws nor in this proposal is the same, or a similar scheme of government provided for them. For the city of Denver, under article 20, the scheme of local government authorized is absolutely unfettered by the constitution, and wholly beyond the power- of the general assembly to supervise. To the school district, as already stated, the general school laws apply, and they are always subject to change by the assembly. The new city and county and the new consolidated school district, and the scheme of government provided for each, are just as distinct as heretofore they have been. Hereafter a school board, to be selected as the general school laws provide, is to have charge of, and govern, the districts, while the city is to be under the control of an entirely: separate and distinct authority, such as the charter may prescribe. Neither *425body will have any more voice in the control of the other than one county has in the control of another county. It follows that in this proposal there are two separate subjects or objects. The scheme of government provided for them is entirely different. Neither is dependent on the other. One might wholly fail and the other be still complete in itself.
But what of all this? In the Nesbit case it was said that such a submission may, unlike a bill for an act, contain more than one subject. That was so then, and is so now. When the Nesbit case was decided there was no constitutional requirement that • amendments containing more than one subject must' be separately submitted, though that had been the uniform practice. But when this proposal was submitted, amended section 2 of article 19 expressly provided that when more than one amendment was submitted at any election, each of them shall be voted upon separately; and while such a submission may-', contain more than one subject without rendering it-invalid, the true test as to whether they should be separately submitted so as to be separately voted upon is whether it contains one, or more than one, j. subject.
The proposal was submitted as one amendment. An elector living in school district No. 1 might want to vote for home rule for Denver, but against consolidating his school district with the outlying ones. On the other hand, a resident of the latter might want to vote for joining it to No. 1 so as to get the benefit of the increased values for purposes of taxation, but be strongly opposed to home rule for the city. Yet he must either vote for or against both propositions, though each is an independent subject, wholly disconnected with the other. The scheme of government for each is complete in itself, and the failure to adopt one in no sense interferes with the *426other that is approved. This illustration shows the reason for the constitutional requirement.—City of Denver v. Hayes, 28 Colo. 110.
Three cases have been cited by both counsel, and, somewhat strangely, each side claims them as authority for its contention. These cases are: State v. Timme, 54 Wis. 318; State v. Herried, supra; State ex rel. v. Secretary of State, 43 La. Ann. 590. In the Timme case, the court said: “In order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other.” In that case the object of the amendment under consideration was a. change from annual to biennial sessions of the legislature, and dependent upon this, was the proposition to change the tenure of oíSee of members of the assembly from one to two years, and the court held that these were not separate propositions; that to defeat or accomplish the one object both should be defeated, or both adopted, and therefore there was no necessity for submitting them as separate propositions. Yet the test there applied makes this submission clearly invalid; for, as we have seen, this amendment has at least two distinct objects, one to provide a scheme of home rule for Denver, the other to consolidate certain school districts within the same territory, and to furnish for the consolidated district a scheme of government entirely distinct and separate from that provided for the city of Denver.
In the Louisiana case the court held that the sole object of the amendment under consideration was to extend relator’s lottery contract for a certain term of years, and that all the p'rovisions and stipulations were merely elements of the consideration which the relator contracted to pay therefor. This case approved the test laid down by the Wisconsin court.
*427In the South Dakota case the same doctrine was recognized. The case most nearly in point is State v. Powell, 77 Miss. 543. The proposal there passed upon dealt with the supreme court, the circuit and chancery courts, the method of filling vacancies in the supreme court, and with circuit and chancery districts. The principal object was to change from an appointive to an elective system. Notwithstanding the fact that all these propositions related to the judicial department which were treated of in the same article of the constitution, the court held that each was a separate proposition, or subject, in itself, and that they should have been separately submitted.
The case is very instructive and is squarely authority for the conclusion which I have reached upon this branch. It has been criticised by counsel for relator with unpardonable severity. They have not attempted to point out the defective reasoning of the opinion, hut content themselves merely with saying that the opinion of a court which passed upon the right of its own members to retain office is not entitled to any consideration. Learned counsel are in error, as a matter of fact, for the amendments in question which were held invalid did not interfere with the tenure of office of the judges of the court who pronounced the decision. It is not necessary for me to defend the integrity or ability of the supreme court of Mississippi. It is now, and has been, a very able court and beyond the breath of suspicion. The published opinion in this case is the best vindication .of the ability of its members.
In my judgment this proposal contained at least two amendments, and they were not submitted separately, as the constitution imperatively requires, and therefore the submission was void.
3. "Whether the general assembly has power to *428propose an amendment to the constitution by way of an added article may not be essential to the decision of this case; still I think it not authorized. It seems to be unquestioned that where a constitution does not contain express authority for calling a constitutional convention,’ the legislature may nevertheless do'so,'if there are no prohibitory words. But where no express authority is given for amending the constitution by the legislative method, that mode cannot be pursued. — Jameson on Constitutional Conventions (4 ed.) § 574h. The legislature in proposing an amendment for the approval of the people does not act in a legislative capacity, but as the representative, or agent, of the people whose will is expressed in the constitution by the convention that framed it. Being without authority to propose an amendment unless it is conferred by the constitution, when this authority is given to the legislature it is not as if it relates to an ordinary act of legislation. Rather is it a grant of, not a limitation upon, legislative power. Unless limited by the constitution, the legislative power of the legislature is plenary, but the proposal of a constitutional amendment not being the exercise of legislative power, but depending on a special grant, must be strictly construed, and the method prescribed in the grant is exclusive. Now, when our constitution says that the general assembly may propose any amendments to the constitution, and qualifies the grant by restricting the power to amendments of not more than six articles at any one session, amendments which are not germane, and specifically directed, to some existing article are not permissible. This legislative method was not intended to take the place of' the constitutional method. Yet if relator is right, the general assembly might propose added articles ad libitum, by which, if approved, the existing constitution can be revised or wholly abrogated, and an *429entirely new one adopted. I think the plain intention was, when the general assembly was given power to make proposals, to limit them to amendments which are germane, and specifically directed, to existing articles. Clearly if added articles are not such amendments to the constitution as are within the purview of article 19, then they are not such amendments as the general assembly may submit; for it is only such amendments as article 19 permits that the general assembly can propose.—Livermore v. Waite, 102 Calif. 113.
The analogy drawn from the practice of congress in submitting amendments to the federal constitution by way of added articles is misleading. The constitution of the United States is one of enumerated or delegated powers. The constitution of a state is an instrument of restraints or limitations on legislative power. This fundamental distinction is, of itself, a reason why different methods of amending may be employed.
But, as already intimated, I might, for the present purpose, concede that the general assembly may propose an amendment to the constitution by way of an added article, as well as by amendments that are strictly germane to existing articles. And this leads me to what I consider by far the most important of all the questions involved in the present controversy.
4. There is no serious denial that, if article 20 is now a part of the constitution, it amends more than six previously existing articles. Indeed, it is easily demonstrable that it radically amends or, repeals at least ten, and probably sixteen. It would seem necessarily to follow that it is invalid, because in direct' conflict with the inhibition found in the closing sentence of section 2 of article 19 against the proposal of amendments to more than six articles at the same session. How is this apparently inevitable conclusion *430escaped? If I confess my inability to appreciate the reasoning by which my associates do it, it is not because I have not profound.respect for their judgment. The logic of the situation is such that they were driven to the position they have taken, and the reasons which they have so forcibly given are the best and only ones that can be advanced. The scheme which the advocates of this measure had- in mind could not be accomplished unless the limitations upon legislative power contained in ten or more articles of the constitution were removed. The supporters of the measure wanted to launch the entire scheme at one time, but as not more than six articles could be directly amended at the same session, this submission could not be effected by the legislative method which the constitution prescribed; — that is, amendments could not at the same session be proposed to enough articles to carry out the design. So the device was invented and a method employed, not recognized by the constitution, of adding an article which, though not mentioning a single existing article, contained provisions absolutely inconsistent, and in direct conflict, with the provisions of ten.or more of them. That there should be no chance for controversy about the legislative intention, section 8 was added providing that: “Anything in the constitution of this state in conflict or inconsistent with the provisions of this amendment is hereby declared to be inapplicable to the matters and things by this amendment covered and provided for.”
I venture to assert that this artifice — I do not say subterfuge — is easily pre-eminent as a palpable violation of the maxim that that which cannot be done directly cannot be done by indirection. But it is said, in the opinion of Mr.'Justice Steele that the limitations of article 19 were intended to apply only to express, but not to implied amendments. This, too, *431although it is accompanied by a statement that in oub legislative method of proposing changes in the constitution there is no such thing as an implied amendment. In another place it is said that “implied amendments” is a convenient phrase used to indicate that rule of construction by which a. later repugnant provision in a constitution or statute modifies or abrogates an earlier one. I assume, therefore, that what is meant when it is said that the inhibitions do not refer to implied amendments is, if an .amendment to a constitution is made which does not expressly refer to an existing article, but merely modifies and abrogates it, by reason of the repugnancy of the later one, the general assembly may propose any number of them at the same session, though, if approved by the people, the effect is to repeal the whole existing constitution and adopt a new one. In the opinion of Mr. Justice Gabbert, the same result is reached, although stated in different language. His construction of article 20 is that because its main purpose is to provide a scheme of home rule for Denver, the changes which had to be made in the constitution to accomplish that result were merely incidential, and that incidental modifications which result from an appropriate direct amendment do not come within the constitutional limitations relating to the number of amendments which may be proposed at one session. In the brief of the attorney for relator who prepared the petition, which brief contains in clear and concise language every legitimate argument that can be advanced in support of the validity of this article, the same thought is thus expressed:
‘ ‘ The fact that an amendment contains some incidental provision which is in conflict with a provision of some other article does not constitute it an amendment of that article such as is contemplated in the constitutional prohibition against submitting amend*432ments' to more than six articles at the same session of the legislature.”
Let us analyze this reasoning. Before there can be an amendment of any article by implication, there must be an express amendment of some particular article from which the amendment by implication arises. Before an incidental change can be brought about, some main thing must be directly amended of which the former is an incident. Article 20 does not specify any particular article or articles as being affected by it. Whatever changes in the existing constitution are thereby wrought are the result of affirmative and positive provision's found in article 20 that conflict with it, and do not result, as an implication, from some other change expressly made, or as a mere incident to a direct amendment of some principal thing. That which is incident to something else we correctly speak of as happening accidentally, or not in connection with the main design, as collateral or subordinate to, or contingent upon, the main design. Now these changes in ten or more articles are not of this sort. They are not collateral to such design. They are an essential and integral part of that design. It could not be effectuated unless such alterations were directly made. The framers of the constitution certainly knew the meaning of language. They knew that changes in laws may be made expressly, or by implication, and sometimes incidental amendments are made, that is, not designedly. And yet they said that ‘ ‘ amendments, ’ ’ without limiting them to express or direct, must not change more than six articles. The object was to prevent many changes at one time by the legislative method. The framers were not idly erecting a barrier against express amendments and deliberately opening the door to implied or incidental ones, which, like the convention method, could be employed to the utter overthrow of the constitution. *433What shall we say of a strained construction that defeats the admitted purpose of the constitutional convention?
Certainly, it cannot he seriously contended that because the constitutional provisions abrogated as to the city and county of Denver remain in force throughout the state generally, that article 20 which has that result is not an amendment in the constitutional sense. The constitution is as effectually set aside, so far as it bears upon the city and county of Denver, as if it never applied. A constitutional amendment repealing the special charter of Denver, or that of school district No. 1 is an amendment, in the constitutional sense, though it relates to a body corporate within the limits of the state not coextensive with the state’s boundaries.
It is a misuse of the word to say that the inhibitions of section 2 of article 19 are directed only against express or direct amendments, and not against implied or incidental ones. The interdiction contained in the last sentence of that section is against the proposal of something the effect of which may be to accomplish a forbidden result. That thing, if ratified by the people, ripens into an amendment. And if this amendment changes, in any way, expressly or by implication, -directly or incidentally, more than six articles, it is absolutely void. This thing called an amendment may, it is true, expressly change, or only incidentally affect, existing articles; but, in the nature of things, it is impossible for the general assembly to propose an implied or incidental amendment. The very meaning of these terms presupposes an amendment expressd in words, or an express or direct amendment of some particular article from which the former is implied or to which the latter is'incident. The inhibition goes against *434the proposal of the “forbidden amendments,” in whatever way they change existing articles.
Moreover, the amendments, which cannot change more than six articles, must be entered in full on the journals of the two houses. How can an implied or incidental amendment be spread upon the records? It is obvious that the thing prohibited is that which the general assembly clothes in language and puts into the form of a bill or resolution.
The fact that the amendment is by way of an added article does not avoid the limitation. An amendment by addition possesses no virtue not belonging to one directly amending an existing article. Both merely amend something, and both are amendments differently expressed. Complete revision of the constitution may be had by a constitutional convention. Changes less sweeping, and in fewer articles, are brought about by the legislative method of proposal ; and it was thought wise not to permit proposals to more than six articles at a time. But the evident intent of the people is thwarted,- and there is practically no difference between the constitutional and legislative method of amending the constitution if, by the simple device of adding an article and not mentioning therein existing articles, the limitations of article 19 are to be disregarded. If one article can thus be added, twenty or fifty can be 'made. This method is unknown to the constitution. Only two methods are prescribed by it. Its recognition here by the court is more than judicial legislation. It is, in effect, the usurpation by the judiciary of the power of making a constitution which is peculiarly a sovereign power of the people themselves. I say this because the court here validates an amendment which never had any life when proposed, and its ratification by the people did not breathe life into it, for it was proposed in direct violation of the limitation which the people *435themselves had, in the constitution, placed on the legislative initiative.
One of my associates speaks of the legislative construction put upon the amendment we are now considering by twenty-one members of the assembly of 1901 who sat in the session of 1899 when the so-called Taylor amendment was submitted that raised the limit from one to six articles. If this is persuasive, what is to be said of the construction made by the same twenty-one members when, in 1899, they voted to submit the amendment which raised the limit? Is it to be supposed they did an idle or vain thing? Yet if the device proposed here succeeds, there was no necessity at all for submitting the Taylor amendment which conferred upon the general assembly power to propose amendments to six articles. Had the new invention of “implied or incidental” amendments been discovered when “express or direct” amendments were limited to one article, the nineteen existing articles could have been abrogated with as much ease and facility as ten can be now set aside after the raising of such limit. The argument proves too much. If because it is added and is silent as to existing articles and results only in an incidental or implied repeal article 20 is withdrawn from this particular limitation, it is also withdrawn from all the other limitations of article 19. It is saved here only because, as it is said, it is not the kind of amendment which is described in article 19. So far as I am able to determine, only one kind of amendment is mentioned therein.
If, however, article 20 is of the excepted class, not a single one of the limitations of article 19 apply, for they refer only to the amendments therein described. That being so, the general assembly might, in this way and by this artifice, make a valid pro*436posal, even though only a majority of the members of each house were in favor of it, and might declare that it should become effective' even though less than a majority of the people voted for its approval. Should not such a construction be rejected? Is it not. strange that my associates, instead of putting the decision of all the objections I have noted solely on the ground that the limitations invoked do not apply, labor to show that all but the one have been observed?
To sum up, it may be said that the general assembly has power to submit proposals for amendments to the constitution only such as come within the purview of article 9. If the general assembly proposes any of them, they are subject to the limitations of the grant which confers the power. If it proposes anything by way of an amendment that. does not come within the purview of the limitations, it necessarily follows that the thing proposed is beyond the power of the general assembly to submit under any conditions whatever.
The cases cited from Illinois are not in point. In Moore v. The People, 106 Ill. 376, the court expressly said that provisions in articles of the constitution, other than the one directly amended, had no bearing upon the question under consideration, and I think the same could have been said in all of them. Neither in that nor in any of the other cases was the objection made that more than one article of the constitution had been amended at one session. In the speakership contest in our own court, the point was not even suggested. The fact that former submissions in our own state may be as faulty as this is no argument that this is valid. If all departments of government and the people have acquiesced in them for many years, they may be saved on that ground. Not a single case, however, has been cited by my associates or by counsel where the specific objection *437here made was raised, and it is to be regarded as res .nova in this jurisdiction.
Other objections to this amendment have been urged, among them that it contravenes certain parts of our national constitution. As Mr. Justice Steele thinks our own constitution has not been infringed, he has deemed it appropriate and incumbent upon him to pass upon the federal questions. Since, to my mind, the amendment is under the ban of our own constitution, in the particulars mentioned, there was no necessity for me to inquire if the higher law is violated, particularly as the discussion on my part would be purely academic and not binding on tbe federal courts.
Two arguments advanced by some of relator’s counsel applicable to all the questions involved remain to be noted, if only to show their fallacy. "We are told that five other separate and single amendments were submitted at the same election and that if article 20 is overthrown they fall with it. However disastrous that result might be, if we believe that article 20 is invalid we ought not to uphold it merely to protect the others. But in my judgment (while it is not my reason for so holding) the only way to sustain the others is to destroy this one. It confessedly amends more than six articles, and while my associates have saved it because it. is added as a new article and does not (as they say) directly amend the articles which it abrogates, that saving power does not include the other five, because they specify the existing articles that are changed. So that when we come to count the number of articles which were amended at the one session, those affected by article 20, if it is upheld, are to be included, whereas if it is to be declared invalid as a submission, which I think should be done, the articles it affects are excluded, which, leaves the other five standing.
*438Relator argues that the vote of the people approving this amendment cures all antecedent defects attending its submission, and should silence all opposition. No one is so rash as to deny that in this country a majority, in general, rules. But why i? this so? As well said by Judge Jameson at section 568 of his valuable work on Constitutional Conventions, in the true sense of the term “the people” means the political society considered as a unit, comprising the entire population, of all ages, sexes and conditions. It is the right of the people, in this sense, to found institutions, and to determine how they shall, and how they shall not, be abolished or amended.- Having ordained the mode in which changes therein may, and in which they may not, be. made, clearly no mode can be legal which contravenes the express letter of that fundamental provision. [The society has the physical power to override its own institutions, but that would be revolution. He further says:
“Nature knows nothing of any majority but that of force. Anterior, then, to any positive institutions, and this side an appeal to force, nothing less than the whole can rightfully bind the whole. It is only when a political society, with positive laws and compacts, has been established, that the whole can be bound by the action of a number less than the whole; and the number to which shall be accorded the power to act for the whole, and the conditions under which it may so act, are matters of positive regulation, in which alone they find their warrant. Prom this it is apparent, that a mere majority in number of all the citizens of a state, or of the electors of a state, have no right whatever to act for the whole state, unless they can point to authority to that effect, express or implied, in the constitution of the state; and that if the action taken or proposed by such majority is palpably in the *439teeth of a constitutional provision, it is usurping and revolutionary. ’ ’
Let this doctrine, which no one challenges, he applied to the present situation. Article 20 was voted for by about 60,000 electors. Colorado has a population of about 600,000, and an electorate of nearly 200,000. This majority is potent only because made so by the constitution itself. We respect it only because we respect the constitution. But it is equally obligatory upon us to obey the other commands which the people have inserted in the same article of the constitution in which obedience to a number of the people less than the whole is enjoined. These commands have, as I have hereinbefore pointed out, been disobeyed, against which I enter an emphatic protest. It is my sincere conviction that, by the decision of the majority, positive mandates of the constitution have been entirely set aside in order to give effect to what is mistakenly supposed to be the constitutional will of a majority of the people. In this case, the voice of a constitutional majority expressed in accordance with the plain mandates of the constitution and in the constitutional «manner pointed out in that instrument has not been expressed, and unless it has been, neither the courts nor private individuals owe allegiance to it.
The delicate and onerous task of the court has been lightened by learned counsel whose oral arguments and printed briefs have exhaustively presented the important questions involved. Special mention should be made of the assistance we have received 'from the able brief of Hon. Platt Rogers, which was undertaken at our request and to the preparation of which much time and thought were given. My brethren and I, in common with other officials of the state, have taken upon ourselves the solemn obligation to support the constitution of the United States and of *440the state of Colorado, and to discharge the duties of our office according to the best of our ability. That such duty has been discharged by them I am as ready to concede as that it has been in my own case, though we differ in our judgment. If we do not observe such obligation, we not only violate our oaths, but are unfaithful to the trust reposed in us by the people of the state. Our first duty is to them, and we shall perform it according to the best of our understanding, without regard to what the effect may be upon us individually, either present or future. If the courts should ever become sufficiently weak to base their decisions upon public clamor, a desire to avoid criticism, or a wish to meet with public approval, instead of being actuated by the purpose to do justice, then are the people deprived of their constitutional right to have their causes determined by an impartial and disinterested tribunal. The foundation of our system of government is the constitution. If that is undermined, the structure must fall. The constitution is the work of the people; it declares their will, and those who disobey its provisions, instead of obeying the people, are in fact disregarding and defying their will.
In my judgment the temporary writ should be quashed and the proceedings dismissed, but as the majority of the court think the relief prayed for should be granted, the writ is made permanent.