Lead Opinion
delivered the opinion of the court:
This is an action in quo warranto in the name of the People on Relation of Mareellus P. Moore. Its object is to test the title of the defendants in error to the offices of commissioners of the city and county of Denver. By this method it is sought to have declared void the enactments which purport to create the so-called, commission form of government, and the nonpartisan system of election for this city and county. The trial court sustained the validity of these enactments, as well as the validity of
Upon February 14th, 1913, a special election was held within and for the city and county of Denver, at which were submitted, separately, by prior initiation of certain electors in the manner, so far as details are concerned, as provided for by the .charter, two certain propositions in writing. Each was designated therein “Amendment to the charter of the city and county of Denver.” One of these propositions by repeal of certain sections of the old charter, the amendment of others, and the adding of new sections, purports to make certain chánges in the form of government from the mayor form so-called, as above described, to the commission form • so-called, with five commissioners to take the place of the mayor and legislative council; they are also to perform certain other duties. The other purports, by the same method, to enact whatds commonly known as the non-partisan system of
It is claimed that these so-called amendments are invalid for the reasons following: First, that they constitute a new or revised charter, which could only be submitted or adopted through the medium of a charter convention. Second, that if they are amendments that the manner of submission to the electors was such as to afford no opportunity to the voters of lawfully exercising their right of franchise and that they were consequently not legally adopted. Third, that the call for the election at which they were submitted was not published as required by the constitution. If these enactments are amendments to the charter which was in existence at the time of their purported adoption, it becomes unnecessary to consider the question of how a new charter can be secured, for which reason we will first consider the question of whether they are amendments. The authority for the
The material parts of sections 4 and 5-necessary to be considered in this controversy read as follows:
“Sec. 4. The charter and ordinance's 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 of 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. Immediately upon completion, the charter so framed, with a. prefatory synopsis, shall be signed by the officers and members of the convention and delivered to. the clerk of said city and county who shall publish the same in full, with his official certification, in the official newspaper of said city and county, three times, and a week apart, the first publication being with the call for a special election, at which the qualified electors of said city and county*23 shall by vote express their approval or rejection of the said charter. If the said charter shall be approved by a majority of those voting thereon,' then two copies thereof (together, with the vote for and against) duly certified by the said clerk, shall, within ten days after such vote is taken, be filed with the secretary of state, and shall thereupon become and be the charter of the city and county of Denver. But if the said charter be rejected, then, within thirty days thereafter, twenty-one members of a new charter convention shall be elected at a special election to be called as above in said city and county, and they shall proceed as above to frame a charter, which shall in like manner and to the like end be published and submitted to a vote of said voters for their approval or rejection. If again rejected, the procedure herein designated shall be repeated (each special election for members of a new charter convention being within thirty days after each rejection) until a charter is finally approved by a majority of those voting thereon, and certified (together with the vote for and against) to the secretary of state as aforesaid, whereupon it shall become the charter of the said city and county of Denver and shall become the organic law thereof, and supersede any existing charters and amendments thereof.”
“Sec. 5. 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;
“It shall be competent for qualified electors in number of not less than five per cent of the next preceding gubernatorial vote in said city and county to petition the council for any measure, or charter amendment, or for a charter convention. The .council shall submit the same to a vote of the qualified electors at the next general election not held within thirty days .after such petition is*24 filed; whenever such petition is signed by qualified electors in number not less than ten per cent of the next preceding gubernatorial vote in said city and county, with a request for a special election, the council shall submit it at a special election to be held not less than thirty nor more than sixty days from the date of filing the petition; Provided, That any question so submitted at a special election shall not again be submitted at a special election within two years thereafter. In submitting any such charter, charter amendment or measure, any alternative article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others. Whenever the question of a charter convention is carried by a majority of those voting thereon, a charter convention shall be called through a special election ordinance as provided in section four (4) hereof, and the same shall be constituted and held and the proposed charter submitted to a vote of the qualified electors, approved or rejected, and all expenses paid, as in said section provided.
‘ ‘ The clerk of the city and county shall publish, with his official certification, for three times, a week apart, in the official newspaper, the first publication to be with his call for the election, general or special, the full text of any charter, charter amendment, measure, or proposal for a charter convention, or alternative article or proposition, which is to be submitted to the voters. Within ten days following the vote the said clerk shall publish once in said newspaper the full text of any charter, charter amendment, measure, or proposal for a charter convention, or alternative article or proposition, which shall have been approved by a majority of those voting thereon, and he shall file with the secretary of state two copies thereof (with the vote for and against) officially certified by him, and the same shall go into effect from the date of such filing. He shall also certify to the secre*25 tary of state, with the vote for and against, two copies of every defeated alternative article or proposition, charter, charter amendment, measure or proposal for a charter convention. * * *
“No charter, charter amendment or measure adopted or defeated under the provisions of this amendment shall he amended, repealed or revived, except by petition and electoral vote. ’ ’
It will be observed from the language used in both sections 4 and 5 that the people of Denver were given the exclusive power to amend their charter. Section 5 in substance provides that it shall be competent for qualified electors in number not less than five per cent, etc., to petition the council for any measure or charter amendment or for a charter convention. This is followed with, a method as to what shall then be done. As we interpret the language there used, it means that they may petition for any amendment; that in the manner used the word “amendment” is unqualified and unlimited, and that they are entitled in this manner to have submitted anything included within the definition of the word “amendment” unless there is something to be found elsewhere in article XX which would tend to limit or confine its meaning to a narrower scope. We have been unable to find anything elsewhere in the article which would tend to sustain such a claim. This limits the question as to whether these two amendments constitute a new charter or whether they are in fact amendments to the existing charter. We are of opinion that they come within the definition of the word “amendment” when unlimited in its scope as here used. Webster’s New International Dictionary, 1911 edition, defines the word “amendment” “In public bodies; any alteration made or proposed to be made in a bill or motion by adding, changing, substituting or omitting.”
When the former charter is considered in connection
It is true that the amendments are, in a way, a departure from the system heretofore provided for the management of the municipality. In this respect, they are different and are new, so far as the number of officials is concerned; but regardless of this they are germane to the subject of municipal government, that is the only proper subject embodied in the charter, and they pertain
In Livermore v. Waite, 102 Calif. 113, 36 Pac. 424, 25 L. R. A. 512, cited by counsel for plaintiffs in error, it is said, “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 covers the amendments under consideration. The lines of the original instrument cover the question of local self-government for the city and county of Denver. The amendments include such additional changes within the lines of the subject covered by the original instrument, viz., local self-government, as are thought will improve or better carry out the purposes for which it was framed.
By the adoption of article XX to our state constitution, we embodied therein radical changes by consolidating the city and county of Denver and allowing it to designate the persons therein who should perform the duties pertaining to county offices, as well as granting to it the right to make its own charter, a power theretofore resting in the legislature. The validity of this amendment has been sustained. — People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. 34; People v. Cassiday, 50 Colo. 503, 117 Pac. 357.
In Denver v. Hallett, 34 Colo. 393, 83 Pac. 1066, as well as in. Londoner v. People, 52 Colo. 15, 119 Pac. 156, we held that article XX was intended to grant home rule to the city and county of Denver and other municipalities, and to bestow, upon them every power possessed by the legislature in making their charter. This being true, if the matter was still in the hands of the legislature and a legislator was drafting the title to a bill concerning this subject, if he followed the repeated suggestions of this court, he would make it broad enough upon the general
This court, as well as the court of appeals, has repeatedly sustained sundry and different kinds of amendments to the former charter, some of which made radical changes in the management of its affairs. — Cunningham v. Denver, 23 Colo. 18, 45 Pac. 356, 58 Am. St. Rep. 212; In re City of Denver, 18 Colo. 288, 32 Pac. 615; Darrow v. People, 8 Colo. 426, 8 Pac. 924; Carpenter v. People, 8 Colo. 116, 5 Pac. 828; Brown v. City of Denver, 7 Colo. 305, 3 Pac. 455; City of Denver v. Barron, 6 Colo. App. 72, 39 Pac. 989.
It should also be borne in mind that in its method of enacting laws and amendments thereto, the legislature is limited by certain restrictions contained in the constitution. Article Y provides that no law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house so as to change its original purpose. Also, that no bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title, but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed. No such provisions are to be found in article XX in providing for initiated amendments to a charter. This is further evidence of the correctness of our conclusion that the word “amendment” as therein used was intended to be unqualified and unlimited in its scope.
Article XX authorizes the city and county of Denver to make its charter, which in a sense is its constitution, concerning local affairs; the state constitution provides the method by which it can be amended. This does not
“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.’ Const., art. 19, sec. 2. It is not essential that the subject of a proposed amendment shall be expressed in its title; a proposed amendment need not have any title except as it designates the article of the constitution to be amended. In changing a proposed amendment to the constitution during its passage through either house, it is not necessary, that such change should be printed, nor that the original purpose of the proposed amendment should be strictly adhered to.—Koehler v. Hill, 60 Iowa 543.
“Section 2 of article 19 prescribes the method of proposing amendments to the constitution, and no other rule is prescribed. It is not, therefore, by the ‘legislative’ article, but by the article entitled ‘amendments,’ that the legality of the action of the general assembly in proposing amendments to the constitution is to be tested. Article 19 is sui generis; it provides for revising, altering and*31 amending the fundamental law of .the state, and is not in pari materia with those provisions of article 5 prescribing the method of enacting ordinary statutory laws. The distinction is obvious. When an ordinary legislative bill, free from constitutional objection, is introduced and passed by both houses of the general assembly, as provided by article 5, it becomes, when approved by the governor (or without his approval when passed by a two-thirds vote of both houses), a valid and binding law; thus, an act of ordinary legislation is fully and finally consummated, and thus a statutory law is brought into existence, by virtue of the power vested in the legislative department of the government.
“But in proposing an amendment to the constitution, the action of the general assembly is initiatory, not final; a change in the fundamental law cannot be fully and finally consummated by legislative power. Before a proposed amendment can become a part of the constitution, it must receive the approval of a majority of the qualified electors of the state voting thereon at the proper general election.. When thus approved it becomes valid as part of the constitution by virtue of the sovereign power of the people constitutionally expressed. ’ ’
In Falconer v. Robinson, 46 Ala. 340, it was held that an act is amended when it is in whole or in part permitted to remain, and something is added to or taken from it, or it is in some way changed or altered to make it more complete or perfect, or to fit it the better to accomplish the object or purpose for which it was made or some other object or purpose.
In Cantini v. Tillman, 54 Fed. 969 (C. C.), it is said :
“Nothing is more common than to amend by striking out one section and by inserting another, or by striking out several sections and by inserting one or several; and if it be competent to amend by striking out and insert*32 ing one, two, three, four sections, clearly it is competent to -strike out all the sections, and to insert others, in pari materia. Striking ont all after the enacting words, and inserting, is nothing but an amendment, and is governed by the same rules as other amendments.” See also Hammond v. Clark, 136 Ga. 313, 71 S. E. 479, 38 L. R. A. (N. S.) 77; Brake v. Callison, 122 Fed. 722 (C. C.); State v. Wright, 14 Ore. 365, 12 Pac. 708.
A proposed change from the commission form to the mayor form was under consideration in State ex rel Hindley et al v. Superior Court, 70 Wash. 352, 126 Pac. 920. The city of Spokane had by charter convention adopted the commission form of government; thereafter the requisite number of citizens who desired to go back to the mayor form petitioned the council to call a special election for that purpose; they refused. The court held the method which controlled was provided for in their charter. The portion involved reads:
‘ ‘ This charter may be amended by a majority vote on such amendments. The provisions of this charter, with, respect to submission of legislation to popular vote by the initiative, or by the council of its own motion, shall apply to and include the proposal, submission and adoption of amendments.”
In that case, as here, it was urged that amendments referred to and provided for in their charter were only such revisory or supplemental changes as the showing of the present charter might suggest, and should not be held to refer to amendments which alter or annul the basic plan or principle upon which the city government was founded. This contention was not sustained. The commissioners who for this reason had refused to call the election were compelled to do so. Without being understood as approving or rejecting all the reasons given, we are of opinion that the conclusion reached by the Wash
In City and County of Denver et al v. New York Trust Company et al, 229 U. S. 123, 57 L. Ed. 1101, 33 Supreme Court Reporter 657, the supreme court of the United States sustained the validity of section 264a, which was an amendment to this charter initiated by the people and voted on at the May, 1910, election. This section was in relation to certain public utilities; it created a public utilities commission and designated its first members instead of leaving them to be elected in accordance with the provisions of section 198 of the charter; it also prescribed a different mode of acquiring a municipal water plant than that provided in article IX of the charter. It authorized the issuance of bonds and contains many other provisions upon the water subject. The voter was required to accept or reject it in its entirety; he was given no opportunity to vote for or against its different provisions, or for or against the commissioners named in the act. In commenting upon this subject the court said:
“But it may be added that we think all the provisions of the amendment have such a relation to the principal subject, namely, the public utilities of the city, as to permit their inclusion in a single amendment. Of the other two branches of this objection it is enough to say that the amendment supersedes pro tanto the original provisions of the charter with which it is not in accord. The pur*34 pose in adopting it was to introduce something new, — -to make a change in existing provisions, — and being adopted conformably to the constitutional and charter requirements, the new or changed provisions became at once a part of the charter, thereby supplanting or modifying the original provisions to the extent of any conflict.”
We are not unmindful of the language used in this case which counsel for plaintiff in error claim sustains their contention that this is a new or revised charter. It is:
“In the briefs some reference is made to Speer v. People, 52 Colo. 325 (122 Pac. 768), where the supreme court of the state recently had before it a proposed amendment radically and extensively changing the form of the city government. The opinions rendered in the case disclose some differences of opinion upon the question whether what was proposed could be regarded as a mere amendment, but the question was not decided and nothing was said in the opinions that tends to sustain the objection now made to § 264a.”
By this language we do not understand that the question here was under consideration in that case, or that it was meant to intimate that a change could not be made by amendment from the mayor form to the commission form. According to our views the language hereinabove first quoted would indicate that the court was of opinion that such changes could be made, for the reason that in referring to section 264a it states, ‘ ‘ The purpose in adopting it was to introduce something new, — to make a change in existing provisions.” As we understand it, the object of all amendments is to make changes, something different, or something new, or, to eliminate something if desired.
The contention that the manner of their submission was such as to afford no opportunity to the voters of law
“The foregoing amendment shall not go into effect until at the same election when it is adopted or at some subsequent election an amendment shall be adopted providing for commissioners to assume the duties herein provided for, and designating the time when said commissioners shall take office, and it shall then go into effect when said commissioners do take office.”
This means that it shall not take effect until some provision be made for the election of commissioners, and not then until they shall assume the duties of their offices. In this respect this amendment was not self-executing. We do not understand that this fact makes it void.—8 Cyc. 752; Ex parte Wall, 48 Calif. 279, 17 Am. Rep. 425.
It is true, as contended, that the adoption of the first portion of the nonpartisan election amendment, vis., that providing for the election of commissioners, was contingent upon the adoption of the commission government amendment; we do not understand that this makes it void ah initio.
In Dillon on Municipal Corporations, 5th Ed., Yol. 2, at page 905, it is said:
“Municipal ordinances, otherwise valid, may, like an act of' the legislature, be adopted to take effect in future and upon the happening of a contingent event.”
In Cooley Constitutional Limitations, 7th Ed., at page 164, the author states:
*36 “But it is not always essential that a legislative act should be a complete statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event.”
In State v. Noyes, 30 N. H. 279, it is said:
“It is not at once apparent .that there can be any sound objection to the enactment of laws to take effect upon the occurrence of future events, such as the legislature may prescribe. ’ ’
In Pueblo County v. Smith, 22 Colo, at page 541, 45 Pac. 360, 33 L. R. A. 465, this court said:
“It will be conceded that the powers conferred upon the legislature to make laws cannot be delegated to any other body or authority, except as the principle may be modified by the second maxim. It is, however, not essential that the law should take effect immediately upon its leaving the hands of the legislature. Its operation may, under certain limitations, be made to depend upon a contingency. ’ ’
To the same effect in principle are: People ex rel Rhodes v. Fleming et al, 10 Colo. 553, 16 Pac. 298; State v. Parker, 26 Vt. 357; Bull v. Read, 13 Grat. (54 Va.) 78; Burnside v. United States, 7 Cranch 382, 3 L. Ed. 378; Peck v. Weddell, 17 Ohio St. 271.
It is claimed that the form of the ballot violates the provisions of section 179 of the charter which provides that the official ballot shall, by proper words, show the nature of the instrument to be voted on, and shall give to each voter the right to place a cross mark upon his ballot showing clearly his intention to vote for or against any measure, charter amendment, proposal for a charter convention or any ordinance, and, in case any separate
“It is not only a part of the constitution, but it is there to stay, until the authority which voted it in shall vote it out. It, as any other part of the constitution, is to be given force and effect according to its plain intent, purpose and meaning.”
It is claimed that the language upon the ballot submitting the amendment providing for commission form of government is calculated to mislead the voter. An
We are of opinion that the matters above referred to are but incidents to the main objects sought to be accomplished by the amendments. The commission amendment provides for the commission form of government. To do this it was necessary to make changes in the charter so as to adapt its provisions to the conditions involved by the change. This could not be accomplished by declaring that the city and county of Denver should have a commission form of government, consisting .of five commissioners, one of whom, selected by themselves, should have the title of mayor. To obtain the object sought it was necessary to abolish many offices, to create others, and provide their duties, and to make other changes thought necessary in
“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.”
If a bill were introduced in the legislature entitled “An act in relation to elections,” making a change in the dates thereof, it could not consistently be maintained that it was not covered by the title. We think this rule is applicable here and that the change of the date of election was germane to the election amendment; also, that the portion involving the terms of the election commissioners was germane to this amendment. By other provisions arrangements are made which will ultimately abolish the election commission and substitute in lieu thereof one election commissioner who, with the commissioner of safety and the auditor, will thereafter perform the duties now being performed by the election commissioners. It was necessary to make some arrangements concerning this question; it was but an incident to the main question. As said upon this subject in Wolfe v. Bronson, 115 Mo. 271, 21 S. W. 1125: “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.” To the same effect is The State ex rel Hudd v. Timme, Secretary of State, 54 Wis. 318, 11 N. W. 785, wherein it is said:
“We think amendments to the constitution, which the section above quoted requires shall be submitted sep*41 arately, must be construed to mean amendments which have different objects and purposes in view. In order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other. 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 the legislature. It was so spoken of by the 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 times of their election, and the same may be said as to the change of the tenure of office of the senators.”
These cases were cited with approval by this court in People v. Sours, supra, which is in harmony with the views herein expressed. To the same effect are: State ex rel v. Allen, 178 Mo. 555, 77 S. W. 868; State ex rel v. Riplinger, 30 Wash. 281, 70 Pac. 748; City of Eugene v. Willamette Valley Co., 52 Or. 490, 97 Pac. 817.
As heretofore stated, it should be borne in mind that the method provided for the adoption of amendments like those under consideration is not confined to the limits prescribed in the constitution for the adoption of amendments to legislative enactments. When this fact is taken into consideration, together with the fact that the going into effect of such amendments can be made contingent upon the happening of some other event, the case of City of Denver v. Hayes, 28 Colo. 110, 63 Pac. 311, is not in conflict with the views herein expressed; it involved the
It is claimed that the call for the election at which these amendments were submitted, was not published for the time prescribed by section 5 of article XX of the constitution and for this reason that the election is void. The date for the election was fixed in an ordinance which was signed by the council and mayor on January 24th,. 1913. This ordinance was published January 25th. The clerk published the text of the amendments with his call for the election upon January 24th, again on January 31st and also upon February the 7th, making three publications, a week apart, as required by the constitution. But it is claimed that the first publication upon January 24th was a nullity for the reason that the ordinance which fixed the date for the election did not become effective until January 25th, because section 13 of the charter provides that no ordinance shall take effect until'published, etc.; that the two publications made thereafter were the only legal ones; that a constitutional provision is manda
‘ ‘ The street law provides a complete scheme of procedure for street work, and the city charter cannot make a different procedure by requiring more or less publication of notice, and a publication of notice of intention to make a street improvement for two days only as provided by the street law, is sufficient, though it be in the form of the publication of an ordinance, which the city charter requires to be published for ten days before it can take effect, the ordinance being equivalent to a resolution so far as the street law is concerned, and being the basis for the two days’ notice provided for by that law, whether effective as an ordinance or not. ’ ’
To the same effect in principle are: City of Napa v. Easterby, 76 Calif. 222, 18 Pac. 253; McEneney v. Town of Sullivan, 125 Ind. 407, 25 N. E. 540.
It will thus be observed that the constitutional provision pertaining to the publication of the call for this election was in all respects strictly complied with.
Perceiving no prejudicial error, the judgment is affirmed.
Affirmed.
Decision en bane.
Mr. Justice White and Mr. Justice Gfabrigues dissent.
Dissenting Opinion
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
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
“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*51 law, 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*52 contained 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
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
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
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.
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
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
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
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*63 that 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
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.