In re Senate Resolution No. 4 , 54 Colo. 262 ( 1913 )

PER CURIAM.

From the foregoing resolution, it is evident the honorable senate is confronted with an anomalous situation, from the fact that it appears two acts are upon the statute books upon the same subject, both, apparently, adopted, the initiated one containing a repealing clause which creates uncertainty; and that the senate has under consideration a proposed act on the same subject, which has passed second reading, the purpose of which is to take the place of both the others, and that from the questions propounded, though not directly expressed, it is the desire of the senate to pass an act which cannot be successfully attacked for any of the reasons which the first three questions impliedly suggest, provided it has authority to do so in such manner as will prevent the situation now presented from being repeated in the future. We think we are justified in deducing this conclusion from the fact that if the senate were not in doubt regarding its authority in the premises, the proposed act would be passed in due course, for by so doing the two acts mentioned would be repealed, their validity,, so far as the future is concerned, no longer open to question, and in their place there would, be but one act, the validity of which, on the score of its passage, would be unassailable. We think this presents the question of the constitutionality of the proposed act in particulars we shall later consider, within the constitutional provisión under which the resolution and questions have been submitted, the purpose of which was to have unconstitutional legislation avoided by having the validity of proposed acts determined in advance: — In re Senate Bill 65, District Attorneys, 12 Colo. 466.

' We cannot express any opinion with respect to the validity of the referred and initiated acts, which, if either, is in force, or when they took effect, or what was the legal effect of the repealing clause in the initiated measure, for the reason 'that both purport to be completed legislation; that under them rights may have arisen or attached which should not be determined in a purely ex parte proceeding; and for the further reason that, so far as the validity of legislation is involved, in' response to legislative questions, it is confined to proposed acts, in order that unconstitutional legislation may be avoided, and cannot call for a construction of acts already passed. The results which would follow any other rule demonstrates that the validity of completed legislation cannot be made the subject of legislative inquiry; otherwise, this court, at the request of the legislative department, could be called upon to determine the validity of any number of acts which have been upon the statute books for many years, and under which rights, public and private, have attached.

That we should not determine, in any respect, the validity of the referred and initiated acts, however, does not prevent us from furnishing the information at least impliedly’ sought which will enable the honorable senate to clear the situation. The proposed act expressly repeals the act of 1905, and also the one initiated, and all other acts in conflict therewith. There can be no question about the authority to repeal the act of 1905. The question regarding the power to repeal the initiated and referred acts (if it can be said the latter is included in the general repealing clause) turns upon a construction of the constitutional amendment usually spoken of as-“The Initiative and Referendum.” That is, does this provision prevent the general assembly from repealing an initiated act, or one which has been referred? We think not, for it expressly provides: “This section shall not be construed to’ deprive the general assembly of the right to enact any measure.” This language is broad and comprehensive. Ah act repealing an act is a measure, and as the general assembly is not deprived of the right to enact any measure, it clearly has the power to repeal any statute law, however adopted or passed.

The next question is, can the general assembly lawfully prevent the proposed act from being referred by the declaration contained in section 6 thereof. To answer this, reference must again be had to the constitutional provision under consideration. It provides that the power reserved designated the “referendum,” “may be ordered, except as to laws necessary for the immediate preservation of the public peace, health or' safety.” Whether a law is of this character, is for the general’ assembly to determine, and when it S0‘ determines, by a declaration to that effect in the body of a proposed act, we are of the opinion that such declaration is conclusive upon all departments of government, and all parties, in so far as it , abridges the right to invoke the referendum. Such a declaration is a part of the act, and may be passed by the majority required to pass any act, and is in no sense an emergency clause, as contemplated by article VI, sec. 19.

As to the fourth question, it is not, in our judgment, within the province of this court to say whether or not the general assembly has performed the duties imposed by the constitution, All departments of government stand on an equal plane, and are of equal constitutional dignity. The constitution defines the duties of each. Neither can call the others directly to account for actions within their province; and so it .follows, that the judicial cannot say to the legislative department that if has, or has not, preformed its constitutional duties. ■That the legislative department must determine for itself, independent of either of the other departments of government, by passing such legislation as, in its judgment, the constitution requires. The views we have expressed are simply intended to aid the general assembly in.solving this important question.

In conclusion, we add that this court will always take pleasure in rendering to each house of the general assembly such assistance, under the constitutional provision by virtue of .which the honorable senate has propounded the interrogatories considered, as shall be consistent with its position as a separate and independent branch of our state government, and in harmony with what is deemed a sound exposition of the constitution — the paramount law of the state.

The clerk is directed to forthwith transmit to the honorable senate a copy of this opinion.

Decision en banc.