Yenter v. Baker

Mr. Justice Moore

dissenting.

I respectfully dissent from the majority opinion of the court. The questions presented are of great significance, and involve a thorough understanding of basic fundamentals in our system of government. We are not here concerned with the propriety of the act of the legislature in so far as it relates to political policy. The legal conclusions which I reach in this case are diametrically opposed to my own political philosophy. Courts do not determine legal questions by straining the plain meaning of words to correspond with the conception which individual judges may have on political or economic questions.

Defendants in error base their claim upon the opinion of this court in the case of Baker v. Bosworth, 122 Colo. 356 , 222 P. (2d) 416 . I dissented from the views expressed in that opinion, but did not find time to assign reasons for that dissent. Believing that the grave error committed by this Court' in that decision should be cor *245 rected at the first opportunity, I now state the reasons why that case should be overruled, and this judgment should be reversed.

The majority opinion in this action, and the opinion in Baker v. Bosworth, supra, entirely ignores, or deftly sidesteps, basic and fundamental principles of constitutional law. Rules which from time immemorial have governed the construction of constitutional and statutory provisions are illogically held not applicable, or are ignored altogether.

The opinion of this Court in the Bosworth case fails completely to recognize the fundamental proposition that the legislative branch of our state government has full, unrestricted and plenary power to legislate in any field whatever except in relation to those matters in which it is prohibited from acting by the Constitution of the United States or that of the State of Colorado. In thus ignoring this basic principle a grievous misconception of constitutional law is effected. The Act of the legislature under consideration in the Bosworth case, as in the case at bar, should be upheld unless the Constitution of the State of Colorado prohibits the enactment of the statute in question in each case. I quote from Alexander v. People, 7 Colo. 155, 160 , 2 Pac. 894 , as follows: “But the legislature being invested with complete power for all the purposes of civil government, and the state constitution being merely a limitation upon that power, we look into it, not to see if the enactment in question is authorized, but only to see if it is prohibited.”

The constitutional provisions which we are called upon to interpret in the case at bar and that which was interpreted in the Bosworth case, very clearly do not prohibit the legislature from acting in the manner complained of. Basic rules of construction, which the majority opinion disregards, and which are ignored in the Bosworth case, are:

First: Words and phrases found in constitutional and statutory provisions are to be construed by giving to *246 them their, familiar and generally accepted meaning. Forced, subtle, strained or unusual definitions should never be resorted to “where the language used is plain, its meaning clear, and no absurdity is involved.” People ex rel. v. Hinderlider, 98 Colo. 505 , 57 P. (2d) 894 ; Jones v. Board of Adjustment, 119 Colo. 420 , 204 P. (2d) 560 ; People v. Elliff, 74 Colo. 81 , 219 Pac. 224 . Courts have no right to add an important qualification or exception to a constitutional provision and by so doing give'rise to a lame excuse for declaring an act of the legislature unconstitutional. In Re Estate of Bourquin, Weiss v. Salvation Army, 84 Colo. 275 , 269 Pac. 903 . That is exactly what the court did in Baker v. Bosworth, supra, and that flagrant error is repeated in the majority opinion in this case.

The Bosworth case overruled Alexander v. People, supra, without mentioning the latter opinion, notwithstanding that the principle announced by this court in that case was relied upon and argued at length. The Alexander case in principle is diametrically opposed to the majority opinion in this case and to the opinion in Baker v. Bosworth, supra.

The constitutional provision which we were called upon to construe in Baker v. Bosworth, supra, appears in article V, section 1, of the Colorado Constitution. It provides: “ * * * and at least eight per cent of the legal voters shall be required to propose any measure by petition * * * .” The constitutional provision which we are called upon to construe in the case at bar is, “Initiative petitions * * * shall be addressed to and filed with the secretary of state at least four months before the election at which they are to be voted upon.” (Emphasis supplied.) In 1945, the legislature-by statute provided with reference to the percentage of signatures that “at least fifteen per cent” of the voters shall be required to initiate a measure. In 1941, the legislature further provided that petitions should be filed with the secretary of state “at least eight months” before the election. The question *247 in the Bosworth ease was whether the legislative act was prohibited by the constitutional provision; and the question in this action is the same.

I respectfully submit that a casual reading of the constitutional provision will clearly indicate that there is no restriction against the exercise of the plenary power of the legislature other than to prohibit the fixing of a percentage of voters which is less than eight per cent of the total. Thus, the lowest limit only was fixed by the fundamental law, and the legislature was left free to act without restraint in the ascending scale. In order to hold the Act of the legislature unconstitutional in the Bosworth case, it was necessary for the court to reach the startling conclusion that when the framers of the constitutional provision used the words “at least eight per' cent” what they really meant to say was “not more than eight per cent of the legal voters shall be required to propose any measure * * * .” How such a conclusion could ever be reached by an appellate court is more than I can understand. To my knowledge no such construction has ever been given in any other appellate court to the phrase “at least” or to any similar, synonymous phrase. Numerous opinions of courts of last resort have denied the strained construction which the majority opinion up-, holds. The expression “at least” means “not less than” to 999 men out of every 1,000. Who can be found to say that “not less than” in reality means “not more than.” Thus, in effect this court stands alone in saying that “at least eight per cent” or “not less than eight per cent” really means “not more than eight per cent.” Resort to any dictionary will quickly and conclusively establish that “at least eight per cent” and “not less than eight per cent” are synonymous terms, and that their meaning is directly opposite to the phrase “not more than eight per cent.”

We are not without legal definition founded.on sound reasoning. From numerous cases which might be citéd, I quote from Barron v. Green, 80 Atl. 586 (N.J.): “ ‘At *248 least’ is an adverbial phrase meaning at the lowest estimate; at the smallest concession or claim; in the smallest or lowest degree; at the smallest number; and sometimes used in the sense of clearly. It is a phrase of emphasis expressive of a minimum, and implies the possibility of more.” To like effect are: Pitman v. Drabelle, 183 S.W. 1055 ; State v. Howell, 138 Pac. 286 , (Wash.); Miller v. State ex rel., 94 So. 706 ; In re Gregg’s Estate, 213 Pa. 260 , 62 Atl. 856 .

Second: Another basic and fundamental rule of statutory and constitutional construction which Bosworth v. Baker, supra, and the majority opinion in this case, either violates or ignores, is the following.

Whenever an act of the legislature is questioned upon constitutional grounds, it is the solemn duty of courts to harmonize the statute with the Constitution if by any reasonable construction of the words used such a result can be obtained. The duty of the court is to search for a reasonable way to uphold the statute. The question is not whether the statute may be voided, “but whether it is possible to uphold it.”

Bosworth v. Baker, supra, and the majority opinion in this case, grossly violate this rule. In order to declare .the 1941 statute invalid in the case at bar, and the 1945 statute invalid in the Bosworth case, in effect, it is absolutely necessary for us to determine by some magic wand of judicial construction that the phrase “at least” means “not more than” which upon its face is manifestly untrue.

Our duty is to harmonize by construction if it can be done. Here we do exactly the opposite. The rule is clear and of long standing, and until Bosworth v. Baker, supra, and in this case, has not been assaulted with deadly effect. I quote from but one of a long series of cases which state the court’s solemn duty in the situation here under discussion.

;“In approaching the question of the validity and constitutionality of the statute, it is well to keep in mind *249 certain fundamental rules. When an act of the legislature is attacked on the ground of unconstitutionality, the question presented is not whether it may be voided but whether it is possible to uphold it. Denver v. Knowles, 17 Colo. 204 , 30 Pac. 1041 . Every presumption will be indulged in favor of the legislation and only clear and demonstrable usurpation of power will authorize judicial interference with legislative action. Green v. Frazier, 253 U.S. 233 , 64 L. ed. 878, 40 Sup. Ct. 499. The rule was well stated by the Supreme Court of Massachusetts in Wellington et al. Petitioners, 16 Pick, 87, and quoted with approval by us in Milheim v. Moffat Tunnel District, 72 Colo. 268, 273 ( 211 Pac. 649 ), as follows: ‘When called upon to pronounce the invalidity of an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation' and patient attention can throw any new light on the subject and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.’ ” People ex rel. Rogers v. Letford, 102 Colo. 284 , 79 P. (2d) 274 .

Those who drafted the Initiative and Referendum amendment to the Constitution demonstrated conclusively that they intended to leave to the legislature a free hand in determining whether or not eight per cent of the voters should be the maximum requirement for the initiation of a petition. By the choice of the words employed, they fixed only the minimum percentage of voters that could ever be required. If a maximum had been intended, they would have used language indicating such an intention, as in fact they did in dealing with the percentage of voters required for initiation of a petition in municipalities.

In that connection the very same section of the constitution provides: “The initiative and referendum powers reserved to the people by this section are hereby fur *250 ther reserved to the legal voters of every city, town, and municipality. * * * ” Art. V, §1, Colo. Constitution.

If the framers of the Constitution intended that “at least eight per cent” of the legal voters should mean the maximum per cent of voters that could at any time be required by law, then no other words were needed to fully reserve to the cities and towns every right reserved by the amendment, insofar as municipal legislation was' concerned. -But the framers of the constitutional provisions well understood the vast difference between the phrase “at least” and the phrase “not more than.” They provided that, in addition to the above quoted provision, that: “Not more than ten per cent, of the legal voters may be required to order the referendum, nor more than fifteen per cent, to propose any measure by the initiative in any city, town or municipality.” Art. V., §1, Colo. Constitution. (Emphasis supplied.)

By the opinion of this court in Baker v. Bosworth, supra, and by the majority opinion in this case, this significant sentence in the Constitution is held to be without meaning, and mere surplusage! And this result obtains notwithstanding yet another cardinal rule of statutory and constitutional construction.

We said in Leyden Co. v. Buddy, 98 Colo. 452 , 56 P. (2d) 52 : “This is enforced by the well recognized rule of statutory construction that, if possible, some meaning and effect' must be given to each word used in the statute in question.”

In Bedford v. C. F. & I. Corp., 102 Colo. 538 , 81 P. (2d) 752 , we held that, if possible, the construction which gives effect “to every word it contains” must be favored and that our duty is to construe words and terms employed so as to render them “consistent and harmonious.’51 All of this we failed to do in the Bosworth case. We did just the opposite. We perpetuate the error in the majority opinion in this case.

The majority opinion in this case, and the decision in Baker v. Bosworth, supra, lay stress upon the fact that *251 the constitutional provisions are self-executing, and support for declaring the legislative acts unconstitutional is claimed because of that fact.

I respectfully submit that whether a constitutional provision is self-executing has nothing whatever to do with creating a prohibition against action by the legislature. The prohibition against such action either exists or does not exist, by virtue of the words used in the Constitution. If, as here, and in the Bosworth case, the prohibition is clearly not present in the constitutional provision, the self-executing clause can create no limitation in that area in which the prohibition does not exist. The unrestricted area of legislative authority, namely, the right to determine whether more than eight per cent of the legal voters should be required, remains unrestricted whether the constitutional provision is self-executing or not.

I have read every case cited in Baker v. Bosworth, supra. Not one case there relied on justifies declaring the statute unconstitutional. Only one of those cases even remotely touches upon the question. It is the case of State v. Hall, 44 N.D. 459 , 171 N.W. 213 . This case did not involve the question of constitutionality of any statute, and the sole question there actually decided was whether a constitutional amendment was self-executing. Expressions of opinion not necessary to a determination of the question in issue are found in that decision which gives some support to the result obtained in Baker v. Bosworth, supra. However, when the history of that controversy is considered, State v. Hall, supra, must be appraised as the weakest of all precedents. The opinion in that case reversed, by a bare majority, a previous and unanimous decision of the same court in State v. Hall, 35 N.D. 34 , 159 N.W. 281 , which had held that the initiative amendment in North Dakota was not self-executing because it was indefinite and uncertain. Between the time of the first decision and the second decision, the personnel of the court had changed, an election having *252 been held. The initiative and referendum was then a hot political issue. It is not surprising, therefore, that in the dissenting opinion of Mr. Justice Bruce, who wrote a concurring opinion in the first case, and dissented in the second decision, the second opinion branded as political in character and unworthy of a dignified status as a precedent, among other things, said: “It is no doubt true, as has been publicly stated by my associate, Mr. Justice Robinson, that he, the said justice, made a preelection promise to overrule the decision in the case of State v. Hall, supra, and that he would not have been elected if he had not done so, and it may be true, as asserted by Mr. Justice Robinson, that the secretary of state was conversant with this fact. I have yet to learn, however, that the making of any such pre-election promises were ever contemplated by the framers of our government, or that a show of force in the shape of a numerously signed petition should serve as a proper justification for a violation of my oath of office and a reason why I should hold that to be the law which I do not believe to be the law. * * * ”

It is indeed unfortunate that the discredited opinion in Hall v. State, supra, is cited and relied on by this court as a precedent for the opinion in Baker v. Bosworth, supra, when numerous cases from other jurisdictions demonstrate that the pertinent dicta in the Hall case is wholly without support in any other jurisdiction. The opinion in the Bosworth case makes no mention of the cloud under which the Hall case stands, and passes by these unblemished and clear-cut decisions without mention. Included in these “forgotten” cases is our own decision in Alexander v. People, supra, in which every argument advanced to establish the unconstitutionality of the statute in the Bosworth case was answered against those who thus contended in a case involving an identical question.

Assuming that Baker v. Bosworth, supra, should be permitted to stand alone (with State v. Hall, supra) as *253 authority for the proposition that “at least” means “not more than,” it does not necessarily follow that the case at bar cannot be distinguished. Certainly the doctrine of Baker v. Bosworth, supra, should not be extended.

As further grounds for reversal of the judgment, I submit that the statute involved in the case at bar which requires the filing of petitions with the secretary of state “at least eight months” before the election instead of “at least four months” as stated in the Constitution, is procedural in character, and places no distinctive burden on the right to initiate, and may reasonably be said to have been passed to protect the public against fraud, and to safeguard and preserve inviolate the initiative amendment from abuses. Upon this ground I believe the case at bar can be distinguished from Baker v. Bosworth, supra. Upon that point I concur in the dissenting opinion of Mr. Justice Clark. I think the judgment should be reversed.