People ex rel. Elder v. Sours

Mr. Justice Steele

delivered the opinion of the court.

At the time of the filing of the pleadings in the case, upon the matter being presented, we determined that the burden was upon the respondent to establish the fact.that the constitution had been violated in proposing and submitting the amendment. At the outset it should be stated that every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of an amendment to the constitution when it is attacked after its ratification by the people. In the determination of these questions we ought constantly to keep in mind the declaration of the people in the bill of rights, “That the people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness;”- and we should examine the objections which have been raised against the validity of this amendment from the viewpoint of a fair and liberal construction, rather than from that of one which unnecessarily embarasses the exercise of the right of amendment. As was said by Judge Handy in 1856, in delivering the opinion of the court in Green v. Weller, 32 Miss. 684: “There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot-box, and there can never be danger in submitting, in an established form, to a free people, the proposition, whether they will change their fundamental law. The means provided for the exercise of their sovereign right of changing their constitution should receive such a construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people; and the best security against tumult and revolution, is in the free and unobstructed privilege to the people of the state, to change their constitution in the mode prescribed by the instrument. ’ ’

We shall first consider the objection raised in the amended answer, that the constitution has been violated because the proposed amendment was not entered in full upon the journals of both houses and that the bill for this amendment as passed- by the senate was not the bill passed by the house. Section 3 of the amendment, as originally introduced in the senate and as entered on the journal of the house, is as follows:

“Sec. 3. Immediately upon the canvass of the vote showing the adoption of this amendment, it shall be the duty of the governor of the state to issue his proclamation accordingly, and thereupon the city of Denver, and all municipal corporations and that part of the county of Arapahoe within the boundaries of said city, shall merge into the City and County of Denver, and the terms of office of all officers of the city of Denver and of all included municipalities and of the county of Arapahoe shall terminate; except, that the then mayor, auditor, engineer, council (which shall perform the duties of a board of county commissioners), police magistrate, chief of police and boards, of the city of Denver shall become, respectively, said officers of the City and County of Denver, and said engineer shall be ex officio surveyor and said chief of police shall be ex officio sheriff of the City and County of Denver; and the then [judges of the district court, district attorney] clerk and ex officio recorder, treasurer, assessor, coroner [and county judge] of the county of Arapahoe, and the justices of the peace and constables holding office within the city of Denver, shall become, respectively, said officers of the City and County of Denver, and said district attorney shall also be ex officio attorney of the City and County of Denver. The foregoing officers shall hold the said offices as above specified only until their successors are duly elected and qualified as herein provided for; except that the then district judges, county judge and district attorney shall serve their full terms, respectively, for which elected. The police and firemen of the city of Denver, except the chief of'police as such, shall continue, severally as the police and firemen of the City and County of Denver until they are severally discharged under such civil service regulations as shall be provided for by the charter; and every charter shall provide that the department of fire and police and the department of public utilities and works shall be under such civil service regulations as in said charter shall be provided. ’ ’

The journal of the senate discloses that the bill was amended by striking out the words inclosed by brackets, “judges of the district court, district attorney,” and “and county judge;” and that after the word “assessor,” “and” was inserted. The bill as amended was engrossed and duly transmitted to the house. The house journal shows that the bill was properly referred to a committee, that it was properly read; that it was then referred to the committee of the whole house and again read, referred again to the committee on revision of the house, read for the third time, and passed by a two-thirds majority of the house. In none of the reports or entries in the journals is any mention made of an amendment; and the bill as enrolled, bearing the signatures of the two presiding officers of the legislative assembly, is the same as that published in the session laws, and is the same as that which appear upon the senate journal. In the case In re Roberts, 5 Colo. 525, this court stated that these journals “possess the character of public records, and as such are admissible as evidence of the proceedings of legislative bodies, and this independently of statutory provisions. Their value as evidence, however, is a question for the courts, and will be affected by the internal evidence which such records furnish as to the system and completeness, or carelessness and slovenliness with which they have been kept. ’ ’ And in the case of Insurance Co. v. Loan, etc., Co., 20 Colo. 1, this court held, that the enrolled bill, properly signed, and deposited in the office of the secretary of state, is prima facie evidence of the due passage of a statute, and that that presumption should prevail unless overcome by something appearing in the record.

It is said that the constitution does not require a proposed constitutional amendment to be enrolled, and that therefore we should not consider the fact that an enrolled bill has been filed with the secretary of state, but should confine our investigation to the legislative journals; and, if there is a discrepancy between the two journals, that the constitutional provision that the proposal shall be entered in full upon legislative journals has not been complied with. This court, in the Nesbit case, while declaring that the enrollment of a proposal is not required by the constitution, commended the practice of doing so by the legislature because it is likely to insure care and deliberation in considering matters of such great importance. We think we should not be restricted in our investigation to the journals of the two houses, but should determine, as a matter of fact, from all the evidence which can be produced of a public nature,j whether the bill as passed by the senate and by the house was the same bill. We are satisfied from an inspection of the journals that the bill as passed by the house was the bill passed by the senate; and we are convinced of this by an inspection of the entries in the house journal, which fail to mention an amendment to the senate bill, by the enrolled bill, which appears in the office of the secretary of state and in the session laws, and by the fact that no record appears in the journal of either house that the bill was returned to the senate for its concurrence in a house amendment. We are also' satisfied that the amendment made by the senate was not a material amendment, that it did not change the purpose or scope of the bill and made no substantial or material alteration therein.

The constitution of Kansas requires that amendments proposed to the constitution shall be entered upon the legislative journals. Mr. Justice Brewer of the supreme, court of the United States, when one of the justices of the supreme court of Kansas, in passing upon the submission of a proposed amendment which had not been entered upon the journals of the two houses, but had received the signatures of the officers of those houses and had been voted upon by the people of the state, said: “Is a proposition to amend the constitution in the nature of a criminal proceeding, in which the opponents of it stand as defendants in a criminal action, entitled to avail themselves of any technical error or verbal mistake, or is it rather a civil proceeding in which those omissions and errors which work no wrong to substantial rights are to be disregarded? Unhesitatingly we affirm the latter. The central idea of Kansas law, as of Kansas history, is that substance of right is grander and more potent than methods and forms. The two important vital elements in any constitutional amendment are the assent of two-thirds of the legislature and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded because by them certainty-as to essentials is secured, but they are not themselves the essentials. * * * Here, also, may appropriately be noticed tbe fact that the past tells the same story of omission from the legislative journals of the full text of the proposed amendment as it does by defect in the form of submission. Many amendments have gone before the people, been adopted and acted upon as parts of the constitution, when only the title, scope, and object can be found in the journals. Another thought, and we pass from this question. We may not ignore public history. Nearly two years elapsed between the time the proposition passed the legislature and the day of the popular vote. During this time this question was not forgotten. It was discussed in every household and at every meeting. The state was thoroughly canvassed; its merits and demerits were presented and supported by all possible arguments. Pulpit, press and platform were full of it. It was assumed on all sides that the question was before the people for decision. There was not even a suggestion of any such defect in the form of submission as would defeat the popular decision. If this objection had been raised prior to the election, the legislature could have been easily convened, and the defect remedied. But there was not a suggestion from friend or foe. The contest was warm and active. After the contest was ended and the election over, the claim is for the first time made that after all there was nothing in fact before the people; that this whole canvass, excitement and struggle was simply a stupendous farce, meaning nothing, accomplishing nothing. This is a government of the people, by the people, and for the people. This court has again and again recognized the doctrine lying at the foundation of popular governments, that in elections the will of the majority controls, and that mere irregularities or informalities in the conduct-of an election are impotent to thwart the expressed will of such majority.”—Prohibitory Amendment Cases, 24 Kan. 700.

An inspection of the manuscript journal of the house shows that the printed bill (before amendment) was inserted bodily in the house journal; and it seems clear that the failure to make the change made by the senate was a mere clerical omission on the part of the employe of the house. This amendment, as were the amendments in Kansas, was discussed for nearly a year before its submission to the people; it bore the indorsement of every political party; it received at the polls more votes than were theretofore cast for any other amendment submitted to the-people. It is shown beyond a reasonable doubt that the bill as amended passed the house; and if the will of the people is to be thwarted by the design or carelessness of an employe of the legislature, then are the foundations of our government unstable and unenduring.

The objections to the provisions of the amendment itself, and to the extent that it, either necessarily or unnecessarily, changes the existing rules of law applicable to the municipal and quasi-municipal corporations embraced within the territorial limits of the City and County of Denver, are more grave and important than the one just passed upon. It is contended that the proposed amendment violates the provisions of the constitution concerning proposals of amedments by the legislature because: 1. It adds a new article to the constitution. 2. It amends more than six articles of the constitution; if not, it amends more than one article, and amendments to five other articles were submitted by the legislature at the same session. 3. It contains distinct amendments of the constitution that should have been submitted separately. 4. The amendment to the constitution that authorizes six amendments is itself unconstitutional. 5. It was submitted under a deceptive and misleading title.

It is also contended that the amendment is inoperative and void, even though properly proposed and submitted, because: 1. It violates the provision of the fourteenth amendment to the constitution of the United States that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” 2. It violates the provision of section 4 of the enabling act providing that the constitution shall be republican in form * . * * and not be repugnant to the constitution of the United States and the principles of the Declaration of Independence. 3. Its operation is dependent upon contingencies.

We shall consider the last three objections before discussing the others.

Under the first objection it is said that some of the adjoining towns have by this amendment lost their public property — that, as the people of these towns had erected town buildings, these town buildings will be taken from them because the towns themselves are consolidated with Denver. That the people of other towns, excluded from the City and County of Denver, have contributed to the erection of public buildings in Arapahoe county, and that they vyill lose their share or interest in such public buildings and be required to contribute to the erection of public buildings in a new county. These are incidental and unavoidable conditions, which exist whenever the boundaries of counties are changed or municipalities are consolidated. These municipalities, exist for the public convenience, tlieir property is the property of the public, and is held, not as private property, but subject to the changing conditions and requirements of local government. If these changes were dependent upon an act of the legislature, its authority might be scrutinized, but surely it cannot be necessary' to inquire into the authority of the whole people thus to appropriate public property to public uses.

The second objection is based upon the construction given by counsel for the respondent to the following provisions in sections 2, 4 and 5, of the amendment :

“The officers of the City and County of Denver shall be such as by appointment or election may be provided for by the charter; and'the jurisdiction, term of office, duties and qualifications of all such officers shall be such as in the charter may be provided; but every charter shall designate the officers who shall, respectively, perform the acts and duties required of county officers to be done by the constitution or by the general law, as far as applicable.”

“The charter and ordinances of the city of Denver as the same shall exist when this amendment takes effect,- shall, for the time being only, and as far as applicable, be the charter and ordinances of the City, and County of Denver; but the people of the City and County of Denver are hereby vested with and they shall always have the exclusive power in the making, altering, revising or amending their charter, and, within ten days after the proclamation of the governor announcing the adoption of this amendment the council of the City and County of Denver shall, by ordinance, call a special election, to be conducted as provided by law, of the qualified electors in said City and County of Denver, for the election ot twenty-one taxpayers, who shall have been qualified electors within the limits thereof for at least five years, who shall constitute a charter convention to frame a charter for said City and County in harmony with this amendment.”

“The citizens of the city and county of Denver shall have the exclusive power to amend their charter or to adopt a new charter, or to adopt any measure as herein provided.”

Counsel say: “Had it been the intention that the constitution and laws should he in force in this territory, this instrument would have so stated. The language of the above provisions is plain and unambiguous. It has been said that in construing a constitutional provision it will be presumed that every word was weighed and its meaning carefully considered before its insertion in the instrument; and this instrument says that the city and county of Denver can adopt any measure, and shall always have the exclusive power to make, alter and revise their charter. That means everything. If not, why not? This charter is to be the organic law. A legislative act is now the charter of the city of Denver, and the constitution of this state and the laws thereof constitute the organic law of this county. But this instrument changes all this, and says that the charter as framed by the charter convention shall not only be the charter of the city and county, but shall be the organic law thereof. That language means something. It displaces, and was intended to displace, the constitution, the laws, and the general assembly.”

If this amendment must be given that construction, it can not be sustained. Even by constitutional amendment, the people cannot set apart any portion of the state in such manner that that portion of the state shall be freed from the constitution, or delegate the making of constitutional amendments concerning it to'a charter convention, or give to such charter convention the power to prescribe the jurisdiction and duties of public officers with respect to state government as distinguishel from municipal, or city, government. The duties of judges of the district court, county judges, district attorneys, justices of the peace, and, generally, of county officers, are mainly governmental; and, so far as they are governmental, they may not be controlled by other than state agencies without undermining the very foundation of our government. Under the constitution of the United States, the state- government must be preserved ■throughout the entire state; and it can be so preserved ■only by having within every political subdivision of the state, such officers as may be necessary to perform the duties assumed by the state government, under the general laws as they now exist or as they may hereafter exist.

This distinction between the governmental duties of public officers and their municipal duties is fundamental, and therefore is not avoided or affected by the consolidation.

“Counties, townships, school districts and road districts do not usually possess corporate powers under special charters; but they exist under general laws of the state, which apportion the territory of the state into political divisions for convenience of ■government, and require of the people residing-within those divisions the performance of certain public ■duties as a part of the machinery of the state; and, in order that they may be able to perform those duties, vest them with certain corporate powers. Whether they shall assume those duties or exercise those powers, the people of the political divisions are not allowed the privilege of choice; the legislature ■assumes this division of the state to be essential in republican government, and the. duties are imposed as a part of tEe proper and necessary- burden which the citizens must bear in maintaining and perpetuating constitutional liberty.” — Cooley’s Constitutional Limitations, 240.*

“A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county- organization is created .almost exclusively with a view to the policy of the state at large, for the purposes of politicál organization and -civil administration, in matters of finance, of education, of provision for- the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception,. all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy. — 1 Dillon’s Municipal Corporations, § 23.

The respondent’s construction, however, is not that placed upon the amendment by the counsel for the petitioners, or, we assume, by the people. The provision that “ Every charter shall designate the officers who shall, respectively, perform the acts and duties required of county officers to be done by the constitution or by the general law, as far as applicable,” completely contradicts the assumption that the amendment regards such duties as being subject to local regulation and control. The amendment is to be considered as a whole, in view of -its expressed purpose of securing to the people of Denver absolute freedom from legislative interference in matters of local concern; and, so considered and interpreted, we find nothing in it subversive of the state government; or repugnant to the constitution of the United States.

It is said that the amendment is void because it is .dependent upon future contingencies. That the proposal, if valid, became a part of tbe constitution upon its ratification; whereas, the provisions relative to the creation of a charter for Denver depend upon the will of the people, which may never .be .exercised. In other words, that the amendment is invalid because it authorizes the people of the City and County of Denver to make a charter and that the people of Denver may never make one. This is not a contingency within the meaning of the law.

It is stated that the proposal was submitted under a misleading and deceptive title. There is no’ proof that any elector was deceived by the title under which the amendment' was submitted, and the' proposed amendments were published in full in a newspaper in each county in the state for four weeks preceding the election. In this connection.it is urged that the people who voted for this amendment constituted only a minority of the electors of the state and that only about one-third of the electors exr pressed themselves upon the subject of the amendment. This is not very important, for we should be compelled to sustain this amendment though but a bare majority of the electors had favored it, if, in our opinion, it was legally submitted and ratified, and we should declare it invalid if its invalidity were established beyond a reasonable doubt, although it had received the unanimous support of the electors. It is hard to account for the apparent indifference of the people on the occasion of the submission to them of changes in their organic law. The indifference which prevails in Colorado prevails in other states, and it rarely occurs that a proposed amendment to the constitution receives the attention of more than one-half of those who vote for candidates for office. In the absence of a constitutional provision to the contrary, the people who do not express themselves upon the subject submitted to them are regarded as having assented to a determination by those who do express themselves.

The amendment which authorizes six amendments is attacked because, as it is said,.it.was not the intention of the framers of our constitution to permit revision and alteration of the constitution except by constitutional convention. The original constitution does not say that the. article entitled amendments cannot be amended, but says that the legislature of the state shall not propose amendments to more than one article at one session.

The remaining objections are based upon the respondent’s construction of section 2, article 19 of the constitution, which is as follows:

“Any amendment or amendments to this constitution may be proposed in either house of the general assembly, and if the same shall be voted for by two-thirds of all the members elected' to each house, such proposed amendment or amendments, together with the ayes and noes of each house thereon, shall be entered in full on their respective journals; the proposed amendment or amendments shall be published with the laws of that session of the general assembly, and the secretary of state shall, also cause the said amendment or amendments to be published in full in not more than one newspaper of general circulation in each county, for four successive weeks previous to the next general election for members of the general assembly; and at said election the said amendment or amendments shall be submitted to the qualified electors of the state for their approval or rejection, and such as are approved by a majority of those voting thereon shall become part of this constitution. Provided, That if more than one amendment be submitted at any general election, each of said amendments shall be voted upon separately and votes thereon cast shall be separately counted the ■same las . thought but one- .amendment .was súbínitted-. But the general assembly shall have ho-power to propose amendments to more than six articles of this constitution at the same session. ’ ’

In the main we regard the-questions presented as judicial, although in the briefs and arguments upon the relevancy of certain provisions of the amendment to its main object or purpose, questions of policy and expediency have been discussed which are legislative rather than judicial; but we are clearly of opinion that the legislature cannot propose an amendment to the .constitution not in substantial compliance vfith its provisions.

It appears to be a universal rule that unless the court is satisfied beyond a. reasonable doubt-that the constitution has been violated in the submission of a constitutional amendment, the amendment must be upheld. This is not a flexible rule, to be applied to suit emergencies, but is a rule adopted to secure to the people the right they have to change the organic law whenever necessary for their safety and happiness. It means that whenever the will of the people has been ascertained in a manner conforming substantially to the provisions of the constitution, that the court shall brush aside all merely technical obstructions, without regard to the result. It is not properly applied by merely recognizing and stating it at the beginning of an opinion, and afterward rejecting every liberal doctrine of construction by which learned judges and learned courts have been able to reconcile, and permit to stand, eách within its own sphere, constitutional or statutory provisions that appear to be repugnant.

We are not only not satisfied beyond a reasonable doubt that the constitution has been violated, but ■are of opinion that the amendment proposed can be sustained upon purely legal principles, supported by adjudicated cases.

It is first contended that the constitution has been violated in this, that the proposal adds a new article to the constitution. It does not appear to be disputed that an amendment may consist in the adding of something new, but it is insisted that that, clause of our constitution which prohibits amendments to more than six articles at one session is a limitation upon the power of the legislature,. and that no subject not embraced within the existing'articles can be added to the constitution in the form of an amendment. In the address to the people of Colorado, the committee of the constitutional convention said: “We have provided liberally for the amending of the constitution, thus giving to the people frequent opportunities of changing' the organic law when experience and public policy may require it. ’ ’ The constitution, as it was adopted by the people, contained this provision: “But the general assembly shall have no power to propose amendments to more than one article of this constitution at the same session.” If it were intended that no subject except those treated of in the constitution should be included in an amendment thereto, then the language adopted by the framers of the constitution in their address to the people, that frequent opportunities of changing the organic law have been provided, whenever experience and public safety may require it, is, to say the least, misleading. In the constitution itself there is no limitation as to new articles. ' It provides that any amendment Or amendments may be proposed by the general assembly, and, when ratified by the people, shall become a part of the constitution; the only limitation being that the legislature •shall have no power to propose amendments to more -than one. article at the same .session. . The. .argument advanced by tbe relator to tbe effect tbat, there being no limitation upon the legislature concerning new articles or subjects, it has plenary power, is convincing, and he has raised in our mind a doubt as to the meaning of the section; and if this contention corresponded with the legislative interpretation, we should resolve the doubt in favor of the construction thus contended for. But we are inclined to accept the construction placed upon the constitution by the legislature. In the legislature of 1901, that proposed this amendment, there were twenty-one senators who were members of the senate that proposed the amendment authorizing six amendments, and they appear to have placed the construction upon their work which prohibits the submission of more than six amendments to the constitution, whether the amendments are to be considered as new articles or as amendments to articles of the constitution as it then existed; and there is abundant authority, not only in this state but in every other state of the Union, to the effect that contemporaneous construction by the legislature of a doubtful or ambiguous provision of the law or constitution should have great weight with the courts. Without regard to the question as to whether the subject embraced in the proposed amendment is a new article or is an amendment to an existing article of the constitution, it seems to us that the legislature, and not the courts, should be the sole judge of the title of the proposed amendment. And it does not seem to us that it can make the slightest difference whether it be termed a new article or an amendment to an existing article. If, as a matter of fact, it receives the votes of two-thirds of the members of each house of the legislature and the constitutional majority of the people, it becomes a part of the constitution. There is no rule of law which requires that a constitutional amendment shall be germane to the section which it proposes to amend; and no court has ever said that the will of the people shall be overthrown, simply because the legislature, in proposing an amendment, has given it a title not germane to the subject. This is the construction placed upon this provision of our constitution by the legislature within a few years after its adoption. In the year 1881 an amendment to the legislative article was proposed. A section of the legislative article provided that the legislature should not pass a law extending the term of office of any public officer, nor law increasing or diminishing his salary or emoluments after his election. An amendment to that section was proposed by the legislature. The amendment provided that the governor should receive a salary of five thousand dollars, that his private secretary should receive a salary of fifteen hundred dollars, that the judges of the supreme court should each receive a salary of five thousand dollars, and that the district judges should each receive a salary of four thousand dollars. The amendment was ratified by the people and is now a part of the constitution; and the governor, his private secretary, the judges of this court and the judges of the district court have, since the year 1882, when said amendment was ratified, been receiving salaries in accordance with that provision of the constitution.

Here was an amendment to a section which prohibited the legislature from passing a law increasing the salaries of persons in office, and the people amended that section by declaring that the governor and his private secretary, the judges of the supreme court and the district judges, should receive a certain stipulated salary and that those in office at that time should receive the salary therein named. The amendment had not the slightest connection with the subject of the section amended, and yet it has never been questioned, and bas remained a part of tbe constitution until this day.

The people of Illinois in 1886 added to their constitution what is termed a special section, which embraces a new subject and one not contained in any other article of the constitution. This amendment was submitted to the people of Illinois under a joint resolution of the legislature in the following words:

“Resolved' by the Senate, the House of Representatives concurring herein, That there be submitted to the people of the state of Illinois for their ratification, or rejection, at the next general election fot members of the general assembly, the following additional amendment to the constitution:

“Resolved, That hereafter it shall be unlawful for the commissioners of any penitentiary, or other reformatory institution in the state of Illinois, to let by contract to any person, or persons, or corporations, the labor of any convict confined within said institution.”

In Illinois, with identically the same powers and limitations as to amendments, an independent section was proposed by the legislature. No reason has been urged why this may not be done except that it would permit the legislature, by subterfuge, to evade the provision that the general assembly shall have no power to propose amendments to more than six articles at the same session. The members of the legislature are not lawbreakers, and we do not think that the constitution is to be construed on the assumption that the' legislature will seek to evade its limitations. An evasion by subterfuge is a deliberate violation of the constitution, and is impossible with officers who have taken an oath to support it.

■ We think, therefore, that the legislature may propose a new article to be submitted as an amendment to the constitution.

It is next contended that the amendment' itself amends more than six articles of the constitution, and is therefore void because in violation-of section 2, article 19 of the constitution as amended, which provides that the legislature shall have no power to submit amendments to more than ■six articles of the constitution at any one session. We are of opinion that this position of counsel is untenable. But one amendment to the constitution was proposed by this article. It will be conceded that it limits, modifies, or abrogates, within certain territory, provisions contained in different articles of the constitution. The purpose of the amendment is to consolidate the city of Denver and a portion of the county of Arapahoe into a new sort of municipality having the combined powers of city and county governments, and to extend to the other cities of the state the privilege of adopting charters in substantially the same manner as is provided for the adoption of the Denver charter, granting to such cities the same power as to real and personal property and public utilities as is granted to the City and County of Denver. The powers.of city and county municipalities being essentially different, in investing this new municipality with the powers of both, it became necessáry to modify the provisions of the constitution relative to municipal affairs, by providing new ones applicable to such combined government; but this is not an amendment of those provisions such-as, in our judgment, was in contemplation by the framers of the constitution, because the constitu-' tional provisions that are abrogated as to the City and County of Denver remain in force, generally throughout the state. . - . .

The constitution of Illinois contains the identical language found in our own in reference to, the initiative by the general .assembly.,BO.thi eonstitutions limit the' power of the general assembly ' in these words: “But the general assembly shall have no power to propose amendments to more than one article of this constitution at the same session.” In 1878 an amendment was proposed to the legislative article of the Illinois constitution, and section 31 of article 4 was amended, authorizing the general assembly to provide for the organization of drainage districts, granting to the corporate authorities thereof the right of eminent domain, and empowering them to construct drains^ and levees and to keep those already constructed in. repair' by special assessment upon the property benefited thereby. Pursuant to this authority, the 'legislature enacted a comprehensive law upon the subject, entitled the drainage ‘law. Our attention is directed to four cases in the supreme court of Illinois in which this law and the amendment authorizing it were under consideration. In the base Moore’s Executor's v. Lewis, 106 Ill. 376, the Jaw was assailed because in conflict with article 9 of the constitution. The court'said: “The act under which the proceedings'were 'had was passed under the authority of the amendment to section 31, article 4, and authorized by it, and if sections 1, 9 and 10 of article 9 ever had any bearing' upon 'an assessment of this character, ■ after this amendment became a part of the organic law it would control regardless of the provisions of the original constitution. ”

In the case Huston v. Clark, 112 Ill. 344, the law was again assailed upon the ground that it was unconstitutional in that it violated the provisions of article -9. The court said: “The special amendment of the constitution adopted in 1878, so far as it invades' the former limitations of the -constitution, must prevail, and such limitations are not applicable to the subject of this special amendment.” -

In the case Wilson v. Board of Trustees, 133 Ill. 446, the law enácted. under the authority of the amendment of 1878 was again considered’ by the court, and it was held that, “Before the adoption of section 31 of article 4 of the constitution, drainage-districts could not be invested with power to make local improvements by special assessments — only cities, towns and villages could be invested with such power (article 9). Since its adoption, drainage districts, as well as cities, towns and villages, can make local improvements by special assessments,-, but not by special taxation of contiguous property. The amendment of section 31 operated as a removal of the previous constitutional restriction upon the power of the legislature, and not as a grant of power. ’ ’

In the case Wabash Railroad v. Drainage and Levee District, 194 Ill. 310, the court, recognizing that there was an apparent conflict between articles 2 and 11, and the amendment to article 4, said:

‘ ‘ Section 31 of article 4 of the constitution of 1870, as amended, under which the statute authorizing the appellee district to become incorporated was enacted, is paramount to constitutional limitations incorporated in the constitution as originally framed, with which it is in conflict. (Huston v. Clark, 112 Ill., 344.) To the extent the amendatory section invades the limitations and safeguards erected by said section 13 of article 2 and' section 14 of article 11 of the constitution, for the safety and preservation of private property, the provisions of the amended section must prevail, but in all other respects those limitations and safeguards remained unimpaired and in full force and vigor as part of the organic law of the state.”

The constitution of Illinois is the only constitution containing the identical language employed by t£e framers of ours, ánd it is altogether probable' that this provision was copied from tbe constitution of Illinois. This amendment to tbe constitution of Illinois confessedly modifies and limits four articles of tbe constitution, yet its validity bas not been questioned; on tbe other band, it bas been repeatedly held that tbe amendment not only changed tbe section which it expressly amended, but limited and modified other articles of tbe constitution.

In tbe case In re Speakership, 15 Colo. 520, in an opinion by Mr. Justice Elliott, our own supreme court recognized tbe validity of an amendment to the constitution which by implication modified another article of tbe constitution. This decision was rendered at a time when our constitution provided that tbe legislature should have no power to propose amendments to more than one article at tbe same session. The court says: “It was urged in argument with great force that this court ought not to express any opinion upon tbe questions presented by tbe executive, for tbe reason that it would be an interference with matters pertaining exclusively to tbe legislative department of tbe government, and therefore in conflict with article 3 of tbe constitution, which divides tbe governmental powers of tbe state ‘into three distinct departments — tbe legislative, executive and judicial’ — and forbids those of one department from exercising ‘any power properly belonging to either of tbe others, except as in this constitution expressly directed or permitted.’ * * * It must be admitted that tbe promulgation of a judicial opinion in response to an ex parte inquiry from tbe executive department of tbe government, concerning tbe affairs of tbe legislative department, is anomalous and peculiar, and, apparently, at least, inconsistent with tbe prevalent American system of separating tbe governmental powers into distinct departments. Bnt it must bé borne' in-mind that tbe same instrument which divides the powers of government into distinct departments has been so amended by the voice of the people as to require the supreme court to ‘give its opinion upon important questions, upon solemn occasions, when required by the governor, the senate or the house of representatives.’ — Article 6, section 3.”

We have, then, the opinion of the supreme court of Illinois, the opinion of the legislatures of. Illinois- and of this state, and the opinion of this court that' amendments by implication are permissible in-amendments to the constitution, and that the con-., stitutional provision limiting the power of the legislature to the proposal of amendments to -one article,, refers to express amendments, and not to amend-ments by necessary implication. There is no similar limitation in the constitution of any other state,; consequently usage and decision in Illinois since-1848 and in this state since 1876 ought to determine.; the meaning to be given to the words, “but the general assembly shall have no power to propose amend-ments to more than one article of this constitution at the same session.” There is no constitutional provision in this state or in any other state, controlling,- or attempting to control, the' implied amendment of-different articles or of different sections.- In fact,there is no such thing as an implied amendment to the constitution. The constitution is a written instrument, and every amendment, to it is express. “Amendment by implication” is merely a phrase in common use, because convenient, to indicate that rule of construction by which a later repugnant provision in a constitution or statute modifies or abrogates an earlier one.

Tested by the rule so earnestly insisted upon by the. respondent, that early amendment to the constitution of this state relating to the salaries of certain officers is palpably, obtrusively and flagrantly in violation of the provision against amending more than one article at the same session. In article 4 it was then provided, that the governor should receive for his services a salary to be established by law, which should not be increased or diminished during his official term. In article 6 it was then provided, that the salaries of the judges of the supreme and district courts should be such as might be provided by law. The amendment itself purported to amend article 5, yet it fixed the salaries of these officers, and thereby as clearly modified or abrogated these provisions of articles 4 and 6 as if they had been amended by several amendments, submitted at different sessions of the legislature. That amendment was proposed and adopted so shortly after the adoption of the constitution that it may be regarded as a contemporaneous construction of the meaning of the limitation. In view of this contemporaneous construction, it appears to us that we must sustain this amendment upon the ground that this provision was intended to prevent the sub-' mission of too great a number of proposed amendments by the legislature at one session, rather than to preserve the several articles as complete and independent subjects by limiting the scope of a single proposal.

It is next contended that the proposed amendment contains several subjects and therefore is in fact several amendments, and that the constitution requires that each amendment shall be separately submitted. The constitution does not require the submission of separate subjects. It provides that each amendment shall be separately submitted, and it has been the custom of the legislature to submit each proposal separately. In the first amendment proposed to the constitution several distinct and separate subjects were submitted for consideration. It was provided that the output of mines should be exempt from taxation for ten years, that certain ditches and canals should be exempt from taxation, that household furniture of the value of two hundred dollars should be exempt from taxation; and it might be argued, as it was argued in this case, that one might be willing to exempt household goods of the value of two hundred dollars from taxation and not be willing to exempt ditches from taxatipn; that he might be willing te exempt the net output of mines for the périod of ten years from taxation, but not willing to exempt ditches from taxation; and that because each subject was not separately submitted, the submission was void. The amendment was submitted in the year 1879, and ratified by the people, and has been recognized as a part of our constitution from that day to this.

In the case of Nesbit v. The People, 19 Colo. 441, Mr. Justice Elliott, speaking for the court, said: “The power of the general assembly to propose amendments to the constitution is not subject to the provisions of article 5 regulating the introduction and passage of ordinary legislative enactments. A proposed amendment to the constitution need not be restricted, like an ordinary legislative bill, to a single subject. The only restriction is, that amendments shall not be proposed to more than one article of this constitution at the same session.”

So that the rule of construction that the act shall' embrace but one subject is not applicable to a con-, stitutional amendment. But even if we were to re-’ gard this amendment as an act of the legislature, it could still be sustained as against the objection that it embraces more than one subject, and be sustained by the decisions of this court and by the decisions of the courts of many of the states of the union. Section 21 of article 5 of onr constitution provides, that “No bill * * * .shall be passed containing more than one subject, which shall be clearly expressed in its title.” This is the identical language of the constitution of Missouri. The supreme court of the state of Missouri, in the case of Wolfe v. Bronson, 115 Mo. 271, in construing this section of their constitution, said: “If all the provisions of the bill have a natural relation and connection, then the subject is single, and this, too, though the bill contains many provisions. ’ ’

And in the case of Lynch v. Murphy, 119 Mo. 164, the court says, construing the same section of the constitution: “The generality of an act is not objectionable so long as it is not used to conceal legislation incongruous in itself or which by no fair intendment can be considered as- having a necessary or proper connection with the title. No provision in a statute having natural connection with the subject expressed in it is to be deemed within the constitutional inhibition that no bill shall contain more than one subject.’.’

The constitution of "Wisconsin contains a provision (section 1 of article 12) that if more than one amendment be submitted they shall be submitted in such manner that the people may vote for or against such amendments separately. An amendment proposed by. the legislature and ratified by the people was attacked upon the ground, among others, that it contained several subjects and propositions, which had not been separately submitted. In passing .upon this objection the court said: “This provision can have but two constructions: First, it may be construed as is contended for by the learned counsel who contends that the amendment under controversy was not properly submitted, that every proposition in the shape of an amendment to the constitution, which standing alone changes or abolishes any of its present provisions, or adds any new provision thereto, shall be so drawn that it can be submitted separately, and must be so submitted. Such a construction w'ould, we think, be so narrow as to render it practically impossible to amend the constitution; or, if not practically impossible, it would compel the submission of an amendment which, although having but one subject in view, might consist of considerable detail, and each separate provision, though all promotive of the same object and necessary to the perfection and practical usefulness thereof if adopted as a whole, in such form that a defeat of one of its important matters of detail might destroy the usefulness of all the other provisions when adopted. Take the case as presented by the amendment under consideration. The learned counsel admits that the proposition to change from annual to biennial sessions is so intimately connected with the proposition to change the tenure of office of members of the assembly from one year to two years, that the propriety of the two changes taking place, or that neither should take place, is so apparent that to provide otherwise would be absurd. * * * We think amendments to the constitution, which the section above quoted requires shall be submitted separately, must be construed to mean amendments which have different objects and purposes in view. In order to institute more than one amendment, the proposition's 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. Tested by this rule, the propositions submitted to the electors contained but one amendment. It is clear that the whole scope and purpose of the matter submitted to the electors for their ratification was the change from-annual to biennial sessions of tbe legislature. It was so spoken of by tbe legislative bodies which passed-it, as well as by the electors who ratified it. To make', that change it was necessary, in order to prevent the-election of members of assembly, half ,of whom, would never have any duties to. perform, that a change should be made in their tenure of office as well as in the time of their election, and the same may be said as to the change of the tenure of office of the senators. * * * The direction in the constitu-. tion requiring separate amendments to be-submitted, separately has no efficacy in determining what constitutes an amendment as .distinguished from what constitutes two or moré amendments; and as the, word ‘amendment’ is clearly susceptible of a con-; struction which would make it cover several propositions, all tending to effect and carry . out one general object or purpose, and all connected with one subject, as well as of the construction that every proposition which effects a change in the constitution, or adds to or takes from it, is an amendment, the construction which has been uniformly adopted by all the departments of the government for a series of years is entitled to great weight in settling by judicial decision what construction should be placed upon it. * * * We do not contend that the legislature, if it had seen fit, might not have adopted these changes as separate amendments, and have submitted them to the people as such; but we think, under the constitution, the legislature has a discretion, within the limits above suggested, of determining what shall be submitted as a single amendment, and that they are not compelled to submit as separate amendments the separate propositions necessary to accomplish a single purpose.”—State ex rel. Hudd v. Timme, 54 Wis. 318.

To the same general effect is State v. Herriod, 10 S. D. 109.

We therefore conclude that the disagreement between the journals is a mere clerical mistake, that the same bill in fact passed both houses, and that the entering by mistake upon the journal of the house of the half dozen words quoted does not violate the provision of the constitution requiring the proposal to be entered in full upon the journals of both houses. That, under the constitution, the legislature may propose an amendment as an original article or as. an amendment to an existing article. That the limitation that the legislature may not propose amendments to more than six articles of the constitution at the same session does not apply to constructive amendments, or amendments by implication. That an amendment may embrace more than one subject. That if an amendment embraces more than one subject, said subjects need not be separately • submitted if they are germane to the general subject of the amendment, or if they are so connected with.or dependent upon the general subject that it might not be desirable that one be adopted and not the other.

That this amendment does relate to a single, definite object or purpose, and that the several matters objected to as not germane thereto do appear to be so connected with or dependent upon that object or purpose that they ought not to have been separately submitted.

We have examined all the questions presented, and have disposed of those we regard as essential to a determination of the case.

We do not hold that in proposing amendments to the constitution, the document itself can be ignored, or that, because the people have ratified it, an amendment proposed in violation of the constitution nevertheless becomes a part of that instrument; but hold-that .in the proposal and submission of this amendment, the constitution has not been violated.

We are not unmindful of the fact that authorities have been cited which support views contrary to many of those herein stated, but when a constitutional provision is fairly susceptible of two interpretations — one which will overthrow the will of the majority as ascertained at a general election, will cast discredit upon amendments that have been long acted upon as part of the constitution, and will convict legislature after legislature of a disregard for the provisions of the constitution; and one which will produce the contrary result — our duty is plain.

Let judgment be entered in favor of the petitioner, in accordance with the prayer of the petition-.