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the change of the date of election was ger-views herein expressed. It involved the ismane to the election amendment; also, that suance of bonds for 11 distinct and separate the portion involving the terms of the elec-purposes having no connection with each othtion commissioners was germane to this er, which, as the court held, made it the subamendment. By other provisions, arrange- mission of that number of distinct and sepaments are made which will ultimately abol- rate questions concerning which it was held ish the election commission, and substitute that the voter had the right to express his in feu thereof one election commissioner, choice separately upon each. At the elecwho, with the commissioner of safety and the tion under consideration there were four auditor, will thereafter perform the duties amendments submitted, with the privilege now being performed by the election commis- given the voter to exercise his choice for or sioners. It was necessary to make some ar- against each. According to our views, all rangements concerning this question; it was the provisions in the commission government but an incident to the main question. As amendment which have been called to our atsaid upon this subject in Wolfe v. Bronson, tention have a natural relation and connec115 Mo. 271, 21 S. W. 1125: "If all the pro- tion with that subject; likewise all those visions of the bill have a natural relation in the nonpartisan election amendment have and connection, then the subject is single, a natural relation and connection with that and this too though the bill contains many subject, making them proper to be thus subprovisions." To the same effect is State ex mitted each as one amendment. This makes rel. Hudd v. Timme, Secretary of State, 54 unnecessary any consideration of whether Wis. 318, 11 N. W. 785, wherein it is said: sundry and separate matters having no rela"We think amendments to the Constitution, tion to each other can in this manner be which the section above quoted requires shall submitted as one amendment. be submitted separately, 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 sena-stitutional provision is mandatory and must tors." 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.

[9] 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 20 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 24, 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 con

be strictly followed, hence these facts make the election void. The fallacy with this contention necessary to consider is in its assumption that, as the date fixed for the election was in an ordinance, this action by the council in fixing the date was of no force and effect until the ordinance, as an ordinance, was in force. An examination of artiAs heretofore stated, it should be borne in cle 20 of the state Constitution will disclose mind that the method provided for the adop- that it makes no provisions for the calling tion of amendments like those under consid- of special elections like the one under coneration is not confined to the limits prescrib-sideration by ordinance. Section 5 provides ed in the Constitution for the adoption of that, whenever petitions providing for the amendments to legislative enactments. When submission of amendments to the charter, this fact is taken into consideration, together etc., are signed by qualified electors in numwith the fact that the going into effect of ber not less than 10 per cent., etc., with a such amendments can be made contingent up-request for a special election, the council on the happening of some other event, the shall submit it at a special election to be held case of City of Denver v. Hayes, 28 Colo. not less than 30 nor more than 60 days from 110, 63 Pac. 311, is not in conflict with the the date of filing the petition, but it does not

required in the enactment of laws. The court held that its statutory character did not affect the validity of the proposed amendment included therein, since as the court said, "Amendments may be proposed in any form or manner so long as the requirements of section 2 of article 19 are observed." A case more directly in point is that of Hellman v. Shoulters, 114 Cal. 136, 44 Pac. 915, 45 Pac. 1057, where the validity of certain actions of the council, not required to be but which were taken by ordinance, were involv

nance. The question and conclusion arrived at as stated in the syllabi are: "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 Cal. 222, 18 Pac. 253; McEneney v. Town of Sullivan, 125 Ind. 407, 25 N. E. 540.

state that it shall be by ordinance. Section 4 | bly undertook to submit it in this manner, provides that a special election shall be call- they were bound to observe the formalities ed by ordinance for the election of delegates to the first charter convention. Section 5 provides, first, for the calling of elections at which shall be submitted any measure, charter amendment, or the question of holding a charter convention. It then provides that, when the question of a charter convention is carried at such election, a charter convention shall then be called through a special election ordinance, etc., by providing in both instances that the call for the election, where a charter convention is to be held, must be by ordinance, and omitting it in the same acted before they became effective as an ordias to calls for elections like the one under consideration is convincing of the fact that such a requirement was not intended in elections of this kind. Section 179 of the charter does not provide that the call for such an election shall be by ordinance, while section 20 of the charter provides that any measure, charter amendment, or proposal for a charter convention may be submitted to a vote of the qualified electors in the manner provided by the Constitution, which it must be conceded would in any event be controlling. The Constitution not having provided that the call for this election be by ordinance, does the fact that it was included in an ordinance make the call inoperative and of no force and effect until the ordinance became effective as an ordinance? We do not think so. The council was not charged with the duty of giving notice of the election; that duty was imposed upon the clerk. Its duty was limited to those matters provided for by article 20 of the Constitution and certain provisions of the charter, none of which provide that the act under consideration be by ordinance. The call for this election could have been by resolution or in some other appropriate manner, and when thus provided for it would be effective at once. It is the act in compliance with the mandate of the Constitution, and not the form, which should WHITE, J. Public duty requires each be looked to in order to ascertain if the con- member of this court to freely speak his own stitutional requirement has been complied convictions on the questions to be determined with. The pleadings disclose that the act of in any case, and when one of these members, the council in calling the election and fixing like myself, has the misfortune to differ in a the date therefor was on or before January fundamental respect from the conclusions of 24th, that being the date it is alleged that the majority, to explain with frankness, and the ordinance was signed by the mayor and undeterred by consequences, the grounds of council. Such being the case, the allegation that difference. In this case the difference that it was done by ordinance can be treated extends only to the manner of exercising the as surplusage or considered as immaterial, powers conferred upon the people of the city under the well-known rule, that when a thing and county of Denver by article 20 of the is done in compliance with the mandate of Constitution, and in no sense as to what the Constitution, the doing of other things those powers are. There can be no doubt in excess of that requirement, in connection that the constitutional provision mentioned with that required, can be eliminated, and gives to the people of that municipality the need not be considered. This principle was fullest measure of self-government, and grants involved in Nesbit v. People, 19 Colo. 441, 36 to them every power previously possessed by Pac. 221, where the court had under consid- the General Assembly in making, changing, eration an amendment to the Constitution and amending its charter. But as the Generwhich the General Assembly undertook to al Assembly, in the exercise of the power propose by bill. It was urged that while this of making charters for municipalities, in

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 judg ment is affirmed. Affirmed.

WHITE and GARRIGUES, JJ., dissent.

the provisions of the state Constitution, and I themselves to the provisions of article 20. was required to follow certain procedure So the powers involved in the case at bar therein prescribed, the people of the city and fall within those enumerated in section 5, county of Denver are also limited, and re- and the legality of their exercise must be quired to observe certain modes of procedure measured by the modes of procedure therein in making, changing, or amending a charter prescribed or permitted, which includes by for that corporate entity. They can neither express reference certain of the provisions create the organic law of the municipality, contained in section 4. It therefore becomes nor change, alter, nor amend the same, ex- necessary to consider the two sections tocept in the manner prescribed or permitted gether. When so considered, there is found by the organic law of the state. Indeed, in therein a constitutional mandate that a first the exercise of the powers conferred, the charter be formulated by 21 taxpayers, electpeople of the municipality are actually and ed at large from the municipality, who shall truly the agent of all the people of the state, have been qualified electors within the limits and can do no act in making a charter, thereof for at least five years. Furthermore, changing or amending the same, except in the that any new charter shall be formulated in manner, at the times, and under the condi- like manner by like qualified taxpaying elections prescribed or permitted in the constitu- tors. In either case, the formation of a chartional provision, which constitutes their pow- ter or a new charter, respectively, was and is er of attorney. Section 4 thereof invests the a condition precedent to the right of the people of the city and county of Denver with qualified electors within the municipality to exclusive and continuing power to make, al- vote upon the approval or rejection thereof. ter, revise, or amend their charter. Section The union of the acts required to be perform5 regrants and reinvests the power so invest- ed by the several agencies designated was ed by section 4, and invests the citizens of and is essential to impregnate them with life the municipality with the additional power under the fundamental law. Stating the matto adopt "any measure." It also invests ter somewhat differently, it is manifest that, them with the power to refer, by petition, while qualified electors, whether taxpayers any measure passed by the council to a vote or not, and without regard to the length of of the qualified electors, and to initiate ordi- time they have been such electors, may petinances by petition. This language, unmodi- tion the council for a charter convention, and fied by other language of the Constitution, may thereafter vote upon the adoption or rewould constitute general grants of power, and jection of a charter submitted, it is only taxthereby invest, by implication, all powers nec- payers of the municipality who have been essary for the exercise of the powers grant- qualified electors within the limits thereof ed, and the people of the municipality would for at least five years that are empowered have been at liberty thereunder to prescribe to frame and submit a charter. Not so, howand adopt their own modes of procedure. ever, as to the formulating and requiring the But the same sections of the fundamental submission of "any measure" or a "charter law prescribe the modes of procedure, except amendment." This may be done by the rein a few minor matters, whereby the powers quired number of qualified electors, whether granted may be exercised; and it is elemen- taxpayers or not, and without regard to the tary that where the means for the exercise of length of time they have been such electors. granted powers are also given, no other Therefore, it being provided that a "new means or different powers can be implied, ei- charter" can be framed only by taxpaying ther on account of convenience or of being electors of long residence, while "any measmore effectual. Cooley's Const. Lim. (6th ure" or a "charter amendment" may be framEd.). p. 42; Field v. People, 2 Scam. (Ill.) 79. ed by any elector, it is not conceivable that As the mode of procedure prescribed by that which is authorized by the one method section 4, in the exercise of the powers there may be accomplished by the other. Clearly, granted, extends only to the adoption of a there is a marked distinction between what first charter, and section 5 prescribes the is meant by a "new charter" on the one hand, procedure in the exercise of the other powers and "any measure" or a "charter amendenumerated in section 4 and reaffirmed in ment" on the other. While it is not imperasection 5, the adoption of a first charter was tively necessary to determine the exact meana condition precedent to the exercise of the ing of the word "measure" as used in the powers granted in section 5. Indeed, such | constitutional provision, or whether it is synis, in substance, the mandate of the Consti- onymous with "charter amendment" as theretution; for it is provided in section 4 that, in used, it is proper to say that rules of conuntil the people of the municipality adopt a struction require that the two terms be charter as therein prescribed, the charter ascribed distinct meanings. It is, a cardinal and ordinances of the city of Denver, as they rule in the construction of a law, whether existed at the time the new municipality was constitutional or statutory, that words shall created, should be the charter and ordinances not be regarded as cumulative or useless, under which the new entity should be govern- but that every word shall, if possible, be gived. But the power to adopt a first charter en some meaning. McClain v. People, 9 Colo. was exercised in March, 1904, and thereby 190, 11 Pac. 85. Moreover, it is significant the people of the municipality subjected that throughout the constitutional provision

137 P.-5

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 be ginning 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.

the words "amendment" and "convention" | with those authorizing the calling of conare always preceded by the qualifying word ventions, that the purpose of the former is "charter," that is, "charter amendment" and different from that of the latter; in other "charter convention," while no such adjective words, the thing authorized to be done by is prefixed to the word "measure." Thus it the one class of provisions is a different is clearly evident that the word "measure," thing from that authorized to be done by the as therein used, is not in a strict sense a other." "charter measure." From the society in which the word is found, it would seem that it was intended thereby to cover matters not strictly governmental in their nature, such, perhaps, as entering into contracts and the acquiring and operating public utilities, etc. The conclusion I have here reached, as to the distinction between the modes of amending a charter and of revising it in extenso or making a new one, is fortified by and in harmony with the language of the Supreme Court of the United States in considering this identical matter in City and County of Denver v. New York Trust Co., 229 U. S. 123, 143, 33 Sup. Ct. 657, 666, 57 L. Ed. 1101, where it is said: "Article 20 of the state Constitution, under which the present home rule charter was adopted, while investing the people of the city (section 4) with 'exclusive power in the making, altering, revising, or amending their charter,' makes a distinction (section 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 cannot 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" cannot 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 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

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 Cal. 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 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 acquisition, 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. 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

cently had before it a proposed amendment, ter, embodying a number of fundamental radically and extensively changing the form changes, and embracing a variety of disof 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 under the restraints of law." They are intended to prevent inJustice and confusion arising from sudden and far-reaching changes in the organic law. Indeed, "The great men who builded the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said: 'A good Constitution should be beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. Changes in government are to be feared unless the benefit is certain.' As Montaign says: 'All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse.'" 23 Amer. Law Review (1889) p. 311; Ellingham v. Dye, supra.

tinct questions, would be repugnant to the principles of natural justice and violative of well-recognized rules. The appreciation of these fundamental principles by the framers of the article is further manifest by the constitutional mandate that a first charter be adopted through the intervention of a charter convention. Clearly, if it was ever intended that so radical a change in the charter of the municipality could be made by amendment as that included in the instruments under consideration in the case at bar, the people of the municipality would not have been precluded from formulating their first charter by means of an amendment to the charter of the city of Denver existing when article 20 became effective. Moreover, to permit the substantial revision of a charter, or the substitution of a new one, upon petition and direct vote destroys its organic character; for it then becomes subject to be overthrown with the same facility as other legislation. Clearly, the framers of article 20 used the term "organic law" of the municipality and the word "amendment" in their true constitutional sense. To ascribe to the word "amendment" as there used an unqualified meaning necessarily abrogates the distinction between a "new charter" and a "charter amendment." This cannot be done, in my judgment, without destroying by judicial pronouncement, the effect of express language of the Constitution.

Having ascertained that under the constitutional grant of power to petition for a charter amendment, electors of the municipality are permitted to petition only for such an amendment as is within the lines of an existing charter, and which does not undermine its fundamental principles or destroy The whole people of the state, in formulat- its substantial entirety, I shall proceed to deing and inserting article 20 into the Consti- termine whether the so-called amendments tution, had in mind the lessons of history, under consideration in the case at bar are of and were sensible of the dangers of haste that character. Courts, in ascertaining the and immaturity in organic legislation. They nature of a written instrument, are governed therefore imposed upon municipalities oper- by its legal effect, regardless of what it may ating thereunder the duty of protecting the be denominated. A proposal, therefore, the individual citizen against the evils of hasty legal effect of which is to destroy all the and frequent changes in the organic mu- fundamental principles and the substantial nicipal law. The time-honored method of entirety of an existing charter, and substitute requiring that substantial' and far-reaching therefor a radically different frame of govchanges of the organic law be made only ernment, is not an amendment in the constithrough the medium of conventions, thus tutional sense. Such is the effect of the soinsuring deliberation and skill in drafting called amendments under consideration. This 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 ex1st.

clearly appears by bringing into juxtaposition the existing charter, with the so-called amendments. The former establishes a typical form of representative government, of which the underlying principles and substantial feaThe people of the state perceived that tures are: The division of the functions and a single amendment to a charter altering a powers of government into three separate and detail in city government might be so pro- distinct departments common to constitutionpounded directly to the voter as to admit of al government; the division of the territory an intelligent expression of his choice by of the city and county into wards and preyea or nay, but to submit, in the same man-cincts, with the right of local representation ner, that which is substantially a new char- in the legislative body, consisting of two

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