People ex rel. Moore v. Perkins

Mr. Justice White

dissenting:

Public duty requires each member of this court to freely speak his own convictions on the questions to be determined in any case, and when one of these members, like myself, has the misfortune to differ in a fundamental respect from the conclusions of the majority, to explain with frankness and undeterred by consequences, the grounds of that difference. In this case the difference extends only to the manner of exercising the powers conferred upon the people of the city and county of Denver by article XX of the constitution, and in no sense as to what those powers are. There can be no doubt that the constitutional provision mentioned gives to the people of that municipality the fullest measure of self-government, and grants to them every power previously possessed by the general assembly in making, changing and amending its charter. But as the general assembly, in the exercise of the power of making charters for municipalities, including the city of Denver, was limited by the provisions of the state constitution, and was required to follow certain procedure therein prescribed, the people of the city and county of Denver are also limited and required to observe certain modes of procedure in making, changing or amending a charter for that corporate entity. They can neither create the organic law of the municipality, nor change, alter nor amend the same, except in the manner prescribed or permitted by the organic law of the state. Indeed, in the exercise of the powers conferred, the people of the municipality are actually and truly the agent of all the people of the state, and can do no act in making a charter, changing or amending the same, except in the manner, at the times, and under the conditions prescribed or permitted in the constitutional provision, which constitutes their power of attorney. Section 4 thereof invests the people of the city and county of Den*47ver with exclusive and continuing power to make, alter, revise or amend their charter. Section 5 re-grants and reinvests the power so invested by section 4 and invests the citizens of the municipality with the additional power to adopt “any measure.” It also invests them with the power to refer, by petition, any measure passed by the council, to a vote of the qualified electors, and to initiate ordinances by petition. This language, unmodified by other language of the constitution, would constitute general grants of power, and thereby invest by implication all powers necessary for the exercise of the powers granted, and the people of the municipality would have been at liberty thereunder to prescribe and adopt their own modes of procedure. But the same sections of the fundamental law prescribe the modes of procedure, except in a few minor matters, whereby the powers granted may be exercised; and it is elementary that where the means for the exercise of granted powers are also given, no other means or different powers can be implied, either on account of convenience or of being more effectual.— Cooley’s Const. Lim. (6th ed.) p. 42; Field v. People, 2 Scam. (Ill.) 79.

As the mode of procedure prescribed by section 4 in the exercise of the powers there granted, extends only to the adoption of a first charter, and section 5 prescribes the procedure in the exercise of the other powers enumerated in section 4 and reaffirmed in section 5, the adoption of a first charter was a condition precedent to the exercise of the powers granted in section 5. Indeed, such is, in substance, the mandate of the constitution, for it is provided in section 4 that until the people of the municipality adopt a charter as therein prescribed, the charter and ordinances of the city of Denver as they existed at the time the new municipality was created, should be the charter and ordinances under which the new entity should be governed. But the power to adopt a first charter was *48exercised in March, 1904, and thereby the people of the municipality subjected themselves to the provisions of article XX. So the powers involved in the case at bar fall within those enumerated in section 5, and the legality of their exercise must be measured by the modes of procedure therein prescribed or permitted, which includes by express reference certain of the provisions contained in section 4. It, therefore, becomes necessary to consider the two sections together. When so considered there is found therein a constitutional mandate that a first charter be formulated by twenty-one taxpayers, elected at large from the municipality, who shall have been qualified electors within the limits thereof for at least five years. Furthermore, that any new charter shall be formulated in like manner by like qualified taxpaying electors. In either case the formation of a charter or a new charter respectively was, and is, a condition precedent to the right of the qualified electors within the municipality to vote upon the approval or rejection thereof. The union of the acts required to be performed by the several agencies designated was, and is, essential to impregnate them with life under the fundamental law. Stating the matter somewhat differently, it is manifest that while qualified electors, whether taxpayers or not, and without regard to the length of time they have been such electors, may petition the council for a charter convention, and may thereafter vote upon the adoption or rejection of a charter submitted, it is only taxpayers of the municipality who have been qualified electors within the limits thereof for at least five years that are empowered to frame and submit a charter. Not so, however, as to the formulating and requiring the submission of “any measure” or a “charter amendment.” This may be done by the required number of qualified electors, whether taxpayers or not, and without regard to the length of time they have been *49such, electors. Therefore, it being provided that a “new charter” can be framed only by taxpaying electors of long residence, while “any measure” or a “charter amendment” may be framed by any elector, it is not conceivable that that which is authorized by the one method may be accomplished by the other. Clearly, there is a marked distinction between what is meant by a “new charter” on the one hand, and “any measure” or a “ charter amendment” on the other. While it is not imperatively necessary to determine the exact meaning of the word “measure” as used in the constitutional provision, or whether it is synonymous with1 ‘ charter amendment” as therein used, it is proper to say that rules of construction require that the two terms be ascribed distinct meanings. It is a cardinal rule in the construction of a law, whether constitutional or statutory, that words shall not be regarded as cumulative or useless, but that every word shall, if possible, be given some meaning.—McClain v. People, 9 Colo. 190, 11 Pac. 85. Moreover, it is significant that throughout the constitutional provision the words “amendment” and “convention” are always preceded by the qualifying word “charter,”— that is, “charter amendment” and “charter convention,” —while no such adjective is prefixed to the word “measure.” Thus it is clearly evident that the word “measure,” as therein used, is not in a strict sense a “charter measure. ’ ’ Prom the society in which the word is found, it would seem that it was intended thereby to cover matters not strictly governmental in their nature, such, perhaps, as entering into contracts and the acquiring and operating public utilities, etc. The conclusion I have here reached, as to the distinction between the modes of amending a charter and of revising it in extenso, or making a new one, is fortified by, and in harmony with, the language of the supreme court of the United States in con*50sidering this identical matter in City and County of Denver v. The New York Trust Co., 229 U. S. 123, 143, 33 Sup. Ct. Rep. 657, 666 (57 L. Ed.), where it is said:

“Article 20 of the state constitution, under which the present home-rule charter was adopted, while investing the people of the city (§ 4) with ‘ exclusive power in the making, altering, revising, or amending their charter, ’ makes a distinction (§5) between the modes of amending it and of revising it in extenso or making a new one, the difference being that an amendment may be initiated by petition and directly voted upon and adopted by the electors, while a revised or new charter requires the intervention of a charter convention. ’ ’

Indeed, it is elementary that when in a constitution one complete method of procedure is prescribed for making a new instrument, and a different procedure for making amendments to the former, the particular method prescribed for enacting an amendment can not be employed in enacting a new instrument. From the use, therefore, of the different terms “amendment” and “new charter,” and from the entirely different methods prescribed for molding them into shape, and for their submission, it is inevitable that by “amendment” is meant something substantially less than a “new charter”; and the conclusion is irresistible that the particular method prescribed for molding into shape and submitting “an amendment” can not be employed for molding into shape and submitting a substantially different thing, to-wit, a “new charter.” The rule and the reasons therefor are tersely expressed in Jameson on Constitutional Amendments, where, in paragraph 574-c, p. 610, it is said:

“Obviously, as we have before remarked, while it may, without absurdity, be claimed that the maxim (expressio unius) operates to prohibit the doing of the same thing in a different way from that prescribed by *51law, it cannot be claimed to prohibit the doing of a different thing in a different way. Now, it is very clear on the face of the constitutional provisions authorizing amendments through the agency of the legislature, as compared with those authorizing the calling of conventions, that the purpose of the former is different from that of the latter; in other words, the thing authorized to be done by the one class of provisions is a different thing from that authorized to be done by the other. ’ ’

Having seen that there is a marked distinction between a “new charter” and a “charter amendment,” as used in the constitutional provision, it is essential to ascertain what that difference is; and for this purpose one should reason in the light of the constitutional and legislative history of the country. Moreover, in judging of the meaning of the terms it must be remembered that the constitution is not the beginning of law, “but that it assumes the existence of a well-understood system which is still to remain in force and be administered, but under such limitations and restrictions as that instrument imposes.” — Cooley’s Const. Lim. (7th Ed.), pp. 94, 95.

By the common law of America originating with our system of constitutional government, and out of the same necessities which gave the latter birth, a method of organic legislation was early recognized and has been universally followed. That method is to require complete revision, or even alterations of a very thorough character, to be made by conventions expressly chosen for that purpose, and to confine changes therein made by amendments initiated by proposals through other agencies to improvements within the lines of the original instrument. As said in Livermore v. Waite, Secretary of State, 102 Calif. 113, 118, 36 Pac. 424, 426, 25 L. R. A. 312:

“The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions *52contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term 'amendment’ implies such an addition or change, within the lines of the original instrument, as will effect an improvement, or better carry out the purpose for which it was framed.”

This distinction is recognized in City and County of Denver v. New York Trust Company, supra, where the supreme court of the United States, in upholding, as an amendment to the first charter of the city and county of Denver, a provision pertaining to the acq+uisition, maintenance and operation by the municipality of a water plant, says: ''It does not alter the form of the city government, or make extensive changes in the existing charter.” And, further, in speaking therein of Speer v. The People, etc., 52 Colo. 325, 122 Pac. 768, where this court had under consideration the charter provisions involved in the case at bar, that court said that, “the supreme court of the state recently had before it a proposed amendment radically and extensively changing the form of the city government.”

These distinctions are also recognized by text writers upon constitutional questions. Dodd’s Rev. and Amend, of State Constitutions, pp. 261, 262; Jameson on Const. Conventions (4th ed.), 562. Moreover, they are based upon cogent reasons of public policy. As said in Ellingham v. Dye (Ind.), 99 N. E. 1, 7: “The idea of the people thus restricting themselves in making changes in their constitutions is original (in American constitutional government), and is one of the most signal evidences that amongst us liberty means, not the giving of rein to passion or to thoughtless impulse, but the exercise of power by the people for the general good, and therefore always *53under the restraints of law. ’ ’ They are intended to prevent injustice and confusion arising from sudden and far-reaching changes in the organic law. Indeed, ‘ ‘ The great men who builded the structure of our state in this respect had the mental vision of a good constitution voiced by Judge Cooley, who has said: ‘A good constitution should be beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and steadiness ; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. * * * Changes in government are to be feared unless the benefit is certain.’ As Montaigne says: ‘All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse.’ ”—Amer. Law Review, 1889, p. 311. Ellingham v. Dye, supra.

The whole people of the state, in formulating and inserting article XX into the constitution, had in mind the lessons of history and were sensible of the dangers of haste and immaturity in organic legislation. They, therefore, imposed upon municipalities operating thereunder the duty of protecting the individual citizen against the evils of hasty and frequent changes in the organic municipal law. The time-honored method of requiring that substantial and far-reaching changes of the organic law be made only through the medium of conventions, thus insuring deliberation and skill in drafting the same, is commanded. Moreover, rules for ascertaining the true intent of the voters are prescribed, to the end that justice may prevail, and that tyranny and imposition, by either majorities or minorities, may not exist. The people of the state perceived that a single amendment to a charter altering a detail in city government might be so propounded directly to the voter as to admit of an intel*54ligent expression of Ms choice hy yea or nay, bnt to submit, in the same manner, that which is substantially a new charter, embodying a number of fundamental changes and embracing a variety of distinct questions, would be repugnant to the principles of natural justice and violative of well recognized rules. The appreciation of these fundamental principles by the framers of the article is further manifest by the constitutional mandate that a first charter be adopted through the intervention of a charter convention. Clearly, if it was ever intended that so radical a change in the charter of the municipality could be made by amendment as that included in the instruments under consideration in the case at bar, the people of the municipality would not have been precluded from formulating their first charter by means of an amendment to the charter of the city of Denver existing when article XX became effective. Moreover, to permit the substantial revision of a charter, or the substitution of a new one, upon petition and direct vote destroys its organic character for it then becomes subject to be overthrown with the same facility as other legislation. Clearly, the framers of article XX used the term “organic law” of the municipality and the word “amendment” in their true constitutional sense. To ascribe to the word “amendment” as there used an unqualified meaning necessarily abrogates the distinction between a “new charter” and a ‘ ‘ charter amendment. ’ ’ This can not be done, in my judgment, without destroying by judicial pronouncement, the effect of express language of the constitution.

Having ascertained that under the constitutional grant of power, to petition for a charter amendment, electors of the municipality are permitted to petition only for such an amendment as is within the lines of an existing charter, and which does not undermine its fundamental principles or destroy its substantial entirety, I shall proceed to determine whether the so-called amend*55ments under consideration in the case at bar are of that character. Courts, in ascertaining the nature of a written instrument, are governed by its legal effect, regardless of what it may be denominated. A proposal, therefore, the legal effect of which is to destroy all the fundamental principles and the substantial entirety of an existing charter, and substitute therefor a radically different frame of government, is not an amendment in the constitutional sense. Such is the effect of the so-called amendments under consideration. This clearly appears by bringing into juxtaposition the existing charter with the so-called amendments. The former establishes a typical form of representative government, of which the underlying principles and substantial features are: the division of the functions and powers of government into three separate and distinct departments common to constitutional government; the division of the territory of the city and county into wards and precincts with the right of local representation in the legislative body, consisting of two branches requiring independent action, and clothed with the self-protecting power of punishing and expelling its members; a chief executive invested with the veto power, and the recognition of the rights of political parties and the general laws of the state concerning elections, including the nomination of candidates and the form of ballots. On the other hand, the so-called amendments create a form of government known in the United States but slightly, if at all, at the time of the adoption of article XX; destroy the underlying principles theretofore common to .representative municipal government; unite the functions and powers of the separate and distinct departments thereof and empower the authorities that' impose taxes to collect and expend the same; abolish the right of local representation by wards in the legislative body; annul the veto power invested in the executive; destroy the rights of political parties as such in the nomination *56of candidates, and circumscribe the elective franchise by means of the preferential system of voting.

While the so-called amendments are germane to municipal government, they are in no sense germane to, nor within the lines of the existing charter: On the contrary, they destroy each and every of the fundamental principles thereof; wipe out, as an entirety, the existing frame of government and substitute therefor another radically different in every substantial respect. The provisions of the existing charter which remain unaffected do not constitute the frame or form of government in any respect. They would necessarily be a part of any charter framed with due regard to the rights of the public. Provisions which would be proper in any charter are not the distinguishing features of government, and, therefore, can not be employed as a criterion in determining whether a proposed change is in reality a new charter or an amendment to an existing charter. The distinguishing feature of a charter of a municipality, or of the organic law of a state, is essentially the form and frame of government prescribed therein. The incidental accessories in carrying on government of whatever form are substantially common to all, and do not constitute the characteristics by which they are classified.

I am not impressed with the argument of the majority opinion dealing with amendments to statutes, nor do I conceive that the cases cited in support thereof have any relevancy whatever to the matters here involved. This is clearly, so, because of the constitutional provision relating to statutes that every bill shall contain one subject which shall be clearly expressed in its title. Under this provision it is not required that an amendment to an act of the general assembly, to be valid, shall be germane to the subject matter of the act, but only that it shall be germane to the subject expressed in the title thereof. *57Now, the charter of the city and county of Denver is the organic law thereof, and constitutes the instrument that may be amended. That charter, therefore, is the subject of legislation, and a “charter amendment” to it, therefore, to be proper, must be germane to the plan or scheme of government therein prescribed. And herein, to my mind, the majority opinion is most unsound, contrary to authority and far-reaching in its evil effect. It declares, substantially, that any proposed change in the organic law of the municipality which is germane to any plan or scheme of municipal government, constitutes a proposed amendment, and, hence, that by an “amendment” an existing plan of government may be replaced by another entirely different. If this be true there can be no distinction between a “new charter” and an “amendment” of an existing charter, and the constitutional provisions prescribing a separate mode of procedure in the enactment of each are coalesced. If any measure germane to the subject of municipal government may be properly classed as an amendment to any charter for municipal government, as held in the majority opinion, then an “entire charter” is only an amendment, for it relates to municipal government. So, in the case at bar. If these so-called amendments had been framed by a charter convention and all of the unrepealed provisions of the existing charter embodied therein, and the entire instrument so framed, designated a charter, it would be, nevertheless, in legal effect, only an amendment. This necessarily follows, because the majority opinion holds that there is nothing in article XX that limits the meaning of the word “amendment,” and that such word, in its broad sense, includes any alteration made or proposed to be made by “adding, changing, substituting or omitting”; and, therefore, an existing charter of a municipal government may be changed by amendment, provided the proposed change relates to the subject of municipal gov-*58eminent. Such is the holding of the majority opinion, notwithstanding the organic law of the state has recognized a clear, distinction between a charter and a charter amendment, and prescribed different modes of procedure for the enactment of each. I can not give my assent to such reasoning. The word “amendment” as used in the constitution is preceded by the word “charter.” That, of itself, limits the meaning of the word “amendment” so that the subject of municipal government embraced in the word “charter” is necessarily confined to the existing charter sought to be amended. To be proper and legal, under the constitutional provisions in question, a charter amendment must be germane, not to any plan of municipal government, but to the specific thing amended, that is, the existing plan or charter of municipal government. This is why, in Livermore v. Waite, supra, it is said, that an amendment to the organic law must be confined to such matters as are within the lines of the original instrument, and which do not undermine its fundamental principles or substantial entirety. Such, also, are the considerations which have prompted text writers on constitutional subjects to declare that amendments should be confined to such matters as are simple and do not affect the whole scheme of government.

Authority, by way of analogy; in support of the foregoing views, is found in cases determined by this court dealing with the power of the general assembly to change the charter of the former city of Denver. At an early date it was decided that such charter, as it existed, at the date of the admission of the state, was preserved by the constitution. And therefore, the general assembly did not have power to take away that charter or to make a new one for the municipality, hut did have power to amend the same. In Cunningham v. City of Denver, 23 Colo. 18, 20, cited in the majority opinion, it is said: “The city of Denver was incorporated under a special *59charter in 1861, and the right of cities so incorporated to maintain their corporate existence is recognized by the constitution, while the power of the legislature to amend such special charters is implied from this and’other provisions of our state constitution, the only limitation being that only such amendments can be made as are revisory or amendatory thereof.” In re City of Denver, 18 Colo. 288, 45c Pac. 356, 59 Am. St. 212, also cited in the majority opinion, it is said: that to make an “amendment free from constitutional objection, it must be of such character as to be fairly considered as revisory or amendatory of the charter existing prior to the adoption of the constitution.”

While it is true that amendments made by the general assembly to the charter of the city of Denver existing at the time the constitution was adopted, were frequently sustained by this court and the court of appeals, no such amendments destroyed the fundamental principles or the substantial entirety of the existing charter. It may also be true, as said in the majority opinion, that if the matter of legislation for the city and county of Denver now existed in the general assembly it could, by amendment, do that which is sought to be done by the amendments in question. But, however that may be, it does not, in any sense, support the conclusions of the majority, nor militate against my own herein expressed. Municipal corporations emanate only from the people of the whole state, and the entire subject of legislation, whether state or municipal, was invested in the general assembly or reserved in all the people of the state. Therefore, the subject of municipal legislation, until the embodiment of article XX in the constitution, was vested in the general assembly under certain constitutional limitations. Special charters of municipalities organized prior to the adoption of the constitution could be amended but not destroyed. As to other municipalities the power of the *60general assembly was supreme. Thus tbe power to amend charters of certain municipalities existed as well as the power to enact charters for other municipalities and to amend the same. But in the exercise of these powers the constitution made no distinction between the modes of procedure in the enactment by the general assembly, of charters for municipalities, and the enactment of amendments thereto. In either case the powers were vested in the general assembly and it could exercise them only through and by means of a legislative bill containing but one subject and that clearly expressed in its title. It was confined to the same process of procedure, whether enacting a new charter or a charter amendment. Not so, however, as to the exercise of the power vested in the people of the city and county of Denver under article XX. While every power previously possessed by the legislature in making or amending charters for such municipality was bestowed upon the people thereof, the manner of its exercise was changed. In the adoption of a charter they must follow a prescribed procedure entirely different from that which may be pursued in the adoption of a charter amendment. While it is true, as stated in the majority opinion, that no such restrictions as are placed upon the general assembly in enacting legislation are found in article XX in providing for initiated amendments to a charter, nevertheless other constitutional restrictions and provisions equally binding and equally certain are found therein.

The majority opinion concedes the inapplicability of State ex rel. City of Portland et al., 65 Ore., 273, 133 Pac. 62, relied upon by defendants in error, and declines to attempt to apply it to the case at bar. Nevertheless, it seeks to fortify its conclusions by State ex rel. Hindley et al. v. Superior Court of Washington, 70 Wash. 352, 126 Pac. 920. In my judgment the latter case is also inapplicable. While it is held therein that sections 82 and 125 of *61the Spokane City Charter, authorizing the submission of initiated amendments, do not limit amendments to such as are revisory or prescribe supplemental changes as to the working of the charter adopted, but authorize the submission of amendments providing for return to the system of council form of government, though altering and annulling the basic principle upon which the charter was founded, the holding is based upon the doctrine clearly not recognized in this state,—In re City of Denver, supra,—that the classification of amendments is always a political question, to be determined by the people. Moreover, the constitution and laws of the state of Washington, under which that decision was rendered, clearly disclose that the legislative power of the whole state enlarged the meaning of the word “amendment” as applicable to municipal charters, so as to include therein ‘ ‘ any matter within the realm of local affairs or municipal business.” Art. 11, § 10, Const, of the State of Washington; § 1, Chap. 186, Laws .of Washington, 1903, p. 393. Obviously the framers of this law had in mind that the word “amendment” was ordinarily confined to changes within the lines of an existing charter; otherwise, there would have been no necessity for enlarging its meaning as used in the statute beyond its meaning as used in the constitution. So it, perhaps, may be said with propriety that under these provisions of the law of that state the courts had no power to draw a line between amendments, or classify them in any way, as the matter had been determined by the people of the entire state. Not so, however, under the constitution and laws of this state. Clearly article XX, the only expression of the entire people upon the subject, contains nothing that can be so construed. And whatever may be the desire of the people of the city and county of Denver they can not, by charter enactment or otherwise, enlarge or change the meaning of the words written into the fundamental law *62by tbe whole people of the state. That it may be advisable to change the charter of the city and county of Denver to the extent contemplated by these proposed amendments may be true, but, if so, it should be brought about only through the procedure prescribed by the fundamental law. Since the adoption of article XX there has never been a time when the people of that municipality might not have made any change consistent therewith which they desired by following the mode of procedure therein prescribed. But to permit them to deviate from the slow and orderly process prescribed in the making of such fundamental changes in the organic law of the municipality will not justify construction of the constitution which does violence to its express terms and clear intent.

I adopt the language of Bronson, C. J., in Oakley v. Aspinwall, 3. N. Y. 547, 568, as follows:

“It is highly probable that inconveniences will result from following the constitution as it is written. But that consideration can have no force with me. It is not for us, but for those who made the instrument, to supply its defects. If the legislature or the courts may take that office upon themselves, or if, under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set any boundary to the powers of the government. Written constitutions will be more than useless. Believing as I do that the success of free institutions depends upon a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for latitudinarian constructions which are resorted to for the purpose of acquiring power; some evil to be avoided or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences *63that constitutions are gradually undermined and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary, in enlarging the powers of the government, opens the door for another which will be sure to follow; and so the process goes on until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.”.

The views I have herein expressed are in conformity with, and supported by the holding of Mr. Justice Gabbert, concurred in by Mr. Justice Garrigues, in Speer v. People, 52 Colo. 325, 348, 122 Pac. 768, where this court had under consideration proposed changes in the charter of the city and county of Denver substantially the same as those here involved, except that the former proposal contained certain provisions not embodied in those before us relative to the election and salaries of county and juvenile judges and the establishment' and maintenance of a school for dependent children. That learned justice therein held that a new charter can not under article XX be proposed by petition; that the proposed amendment was, in legal effect, a new charter, and that the people of the city and county of Denver had no power to adopt the same, except through the intervention of a charter convention. Moreover, he held that a proposed amendment which embraces several distinct propositions can not legally be submitted as one amendment in such form that it can only be voted for or against as a whole, and that the proposed amendment under consideration was vulnerable *64to that objection. While these questions were not determined therein, the majority of the members of the court declining to express an opinion thereon, the reasoning of Mr. Justice Gabbert is so clear and convincing as to greatly augment the force of my dissenting opinion, notwithstanding that he now concurs in the majority opinion herein' announced! The value of that support is readily apparent when his views therein expressed are brought into juxtaposition with the majority opinion, containing, as it does, the sole reasons for the court’s present holding.

Decided November 3, A. D. 1913. Rehearing denied December 1, A. D. 1913.

While the other questions involved and determined in this case are fundamental, I shall express no opinion thereon. I have not given them such consideration as would justify me in either approving or disapproving the holdings of the majority in respect thereto. Moreover, if my views upon the main question were adopted by the court, a determination of the other questions would be unnecessary. I am authorized to state that Mr. Justice Garrigues fully concurs in the views I have expressed herein.