61 Colo. 422 | Colo. | 1916
delivered the opinion of the court.
The record discloses that the Twentieth General Assembly passed an act relating to intoxicating liquors, the substance of which is supplemental to, or in aid of, the enforcement of an amendment to the Constitution adopted 'at the November 1914 election, pertaining to intoxicating liquors after January 1, 1916. The act provides penalties for its violation and was to become operative and be in full force and éffect from and after January 1, 1916. Section 31 is what is known as the safety clause. It recites that “the General Assembly hereby finds, determines and declares that this act and each and every sentence, phrase, clause, section and sub-section thereof is necessary for the immediate preservation of the public peace, health and safety.” The act does not contain the emergency clause; it was approved March 3, 1915. Within the time allowed by the Constitution, a petition in due form praying for the reference of sections 1 to 30 of this act, signed by 20,235 qualified electors, was tendered to the Secretary of State. This he refused to accept, whereupon the plaintiffs in error, as the representatives of the petitioners, instituted this action in mandamus to compel the Secretary of State to receive, file and comply with the prayer contained in the petition. A demurrer was sustained to the alternative writ. The petitioners declining to plead over, the action was dismissed.
In Van Kleeck v. Ramer, Secretary of State, decided April 3, this year, 156 Pac. 1108, we held that the declaration of the legislature contained in the act that it was necessary for the immediate preservation of the public peace, health and safety is conclusive upon the courts and that in such case they cannot review the question so as to allow the referendum petition. Counsel concede that such is the hold
The contention concerning the passage of section 31 of the act and what the Senate and House Journals show concerning it, other than that the bill, as passed did not receive a two-thirds vote, was not alleged in the petition, nor stated in the alternative writ, which was demurred to. During the argument upon the demurrer, counsel for the petitioners ask leave to amend the alternative writ, so as to have it state what he now contends, the House and Senate Journals show concerning these matters. The court sustained an objection to this request because it would make a different pleading than the one demurred to, stating to counsel that he could confess the demurrer, and amend his petition if he wished to. This, counsel did not do, but took exceptions to the ruling and then offered as evidence to sustain his position the printed journals of the Senate and House of the session at which this bill was passed. Objection was sustained to the admission of these journals for consideration upon the demurrer.
We agree with counsel that as a general rule, the duties of the Secretary of State are ministerial, but this fact, instead of permitting him to accept the petition and refer the bill'as therein prayed for, made it his duty as a ministerial officer to refuse it. The act had attached thereto as a part of it, the safety clause, and for this reason could not be referred. In Re Senate Resolution No. 4, 54 Colo. 262, 130 Pac. 333; Van Kleeck v. Ramer, Secretary of State, supra. It was not incumbent upon the Secretary of State to determine the effect of the safety clause, in the absence of the emergency clause, or the necessity of the safety clause, because the penalties provided in the bill did not go into effect until January 1, 1916, about ten months after its passage. According to the plain language of the act, it was not referable, hence the ministerial duty of the Secretary of State was to act accordingly.
Regardless of what may or may not be the rule in other jurisdictions, it is evident (as this court has heretofore in
The judgment is affirmed.
Affirmed.
Decision en banc.
Mr. Justice Scott concurs in the conclusion.