dissenting:
I cannot agree with the majority opinion.
The so-called National Prohibition Amendment to the Constitution of the United States was ratified by the General Assembly of Colorado1 by the passage of House Concurrent Resolution No. 1.
This is a suit in the District Court for mandamus to compel the Secretary of State to submit the matter to the People under the so-called Referendum section of the State Constitution. Acts of 1910, p. 11. The District Court sustained a demurrer to the petition and dismissed the cause.
No question is raised as to the sufficiency of any of the proceedings. The question is whether such a proceeding by the Legislature is subject to the referendum.
*271It seems to me that there are two questions upon which the answer to the above main question. depends: 1st. Whether under the United States Constitution (Art. V), the resolution of ratification may be referred to the people. 2nd: Whether the Constitution of this state (Art V, Sec. 1), as amended (S. L. 1910, p. 11), permits the referendum of such a resolution.
Upon the first point the question turns upon the meaning of the word legislatures in Const. U. S., Art. V. Under that article the proposed amendment takes effect “when ratified by the legislatures of three-fourth of the several states, or by conventions in three-fourths, as the one or the other mode of ratification may be proposed by the Congress.” The word legislature has two ordinary and well recognized meanings: 1. The law making power, whatever that may be. 2. That representative body of men chosen by the people to enact laws.
The plaintiff in error claims that the first is the meaning to be attached to it here. This question seems to me to be settled by the case of Davis v. Ohio, 241 U. S. 565, 60 L. Ed. 1172, 36 Sup. Ct. 708. The United States Constitution, Art. I, See. IV, provides: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof.” In the above case it was held that, under the United States Constitution the act of the General Assembly of Ohio redistricting that state for members of Congréss was subject to referendum. This necessarily holds that the word “legislatures” in Art. I, Sec. IV of the Federal Constitution means “legislative power.” I can see no difference between the use of the word legislature in Art. 1, Sec. 4, and its use in Art. V. True; the Supreme Court of the United States did not-mention this question (of the meaning of the word “legislature”), it only said that the question whether the referendum destroyed republican government in Ohio was for Congress and not for the courts ; but it upheld the referendum, which it could not logically do except upon the assumption that the word “legislature” included it. This decision *272by the United States Supreme Court upon a federal question must control us. It must therefore be said that, so far as the federal' constitution is concerned the referendum is permitted on the question of ratification of a proposed amendment of that constitution.
As to the second point: Our state Constitution provides that the referendum may be ordered “ag*ainst any act, section or part of any act of the General Assembly.” Other parts of the section refer to' referendum on “Act” or “bili.” The argument is that the word “act” is used in its restricted, narrow sense, and that because the ratification was by resolution it cannot be referred. Some states ratify by act and some by resolution. . Can it be said that the acts may be referred but not the resolutions? This, of course, leads to the conclusion that the Legislature may evade the referendum,.for some purposes, at will. See Sen. Concur. Res. No. 6, S. L. 1919, p. 769; Sen. Joint Res. No 2, 1913, p. 692; S. L. 1911, p. 701; House Res. No. 6, 1909; Sen. Conc. Res. No. 3, 1899; Sen. Res. No. 11, 1901. But the manifest purpose of the initiative and referendum amendment was to reserve to the people control over legislation. The conclusion is unavoidable that any resolution which amounts to legislation is subject to the referendum. The ratification is unquestionably a legislative act. It is making law. Legislation is making law. Jameson Const. Conv., Sec. 513 and 547. It follows that the resolution in question is subject to referendum. . '•
The case of Collier v. Henderson, 18 Colo. 259, 32 Pac. 417, holds that, under the Colorado Constitution, a law cannot be passed in the form of a resolution, but only by bill enacted according to constitutional form. If this is material to the present case, it can only be to show either that the resolution of ratification was not an act, or that it was not properly passed. It may be conceded at the outset that' it was not a bill and upon its passage did not become an act in the sense in which the word is used in the above case, but it created a law; it, with resolutions or áets of other states, subjects the people of this state and the United *273States, to a permanent rule of action to which they otherwise would not be subject. This is a quality, of law and not of mere resolution. x
It may be conceded that the intent was to exclude ordinary resolutions from the referendum; but here is a resolution not of the ordinary kind, not within' the definition :of resolution, in the law dictionaries and opinions. It does not merely provde for the doing some particular thing or series of things with the principal purpose of showing authority therefor, nor is it local or temporary in its nature, nor does it relate to some particular person or class of persons. It is not a recommendation or request. It has indeed none of the qualities of a resolution except its form and name. It has, as above stated, the essential and fundamental»quality of an act or law, i. e., it fixes a rule of action for all people. It is therefore within the spirit and purpose of the amendment.
If it be claimed that we have proved too much, because, if the resolution be a law, it should have been enacted by bill in constitutional form, the answer is, so be it. If it is impossible constitutionally to legislate in Colorado except by bill then the prohibition amendment has never been ratified by Colorado. To conclude otherwise is to put form before substance, words before snirit and purpose. I do not, of course, maintain such a proposition, but think that the custom of conducting this particular legislation being sanctioned by its acceptance by 'Congress for a century makes it a valid method. Nature and substance — not form, control.
To recapitulate. 1. The referendum of the resolution of ratification is permitted under the Constitution of the United States, because the question turns on whether the word “legislature” means legislative power, of whatever kind. It is a question of construction of the Federal Constitution, on which we are controlled by the Federal Supreme Court. That court has held that the word does mean legislative power. 2. The referendum of the resolution is permitted under the state constitution, because the initia*274tive and referendum amendment must be construed to effectuate its purpose. It is the manifest purpose of the people that by referendum they shall retain control of legislation. We know this from the amendment itself, and from the history of its origin, propagation, development and enactment. The resolution of ratification is legislation in its most solemn form. Therefore it is subject to the referendum. Case should be reversed.