Denver & Rio Grande Railroad v. Moss

Mr. Justice Bailey delivered the opinion of the court: The action is for the killing of live stock. It is based solely upon an absolute liability imposed by the act of March 14, 1902, commonly denominated “The Bailroad Fencing Statute,” passed at a special session of the legislature. Plaintiff had judgment below, and the defendant, the railroad company, brings the case here on appeal to review that action. The only question which will he considered and determined is the constitutionality of the act, as that finally disposes of the cause of action. The defendant insists that the act is not within the proclamation of the governor, and therefore void. The only section of the governor’s proclamation under which this act can possibly fall is paragraph 3, which reads as follows: — 284 — “Third. To enact any and all legislation relating to or in any wise affecting corporations, both foreign and domestic, of a gwsi-public nature.” That portion of article IV, section 9, of the state constitution involved, reads: “The governor may, on extraordinary occasions, convene the general assembly, by proclamation, stating therein the purposes for which it is to assemble; but at such special session, no business shall be transacted other than that specially named in the proclamation. ’ ’ There is nothing in the preamble to the - proclamation, or in a subsequent explanatory message, which throws light upon the matter under consideration. So there is, for determination, the bald question, whether, under paragraph 3 of the proclamation, it was competent for the legislature to pass the act, under the provisions of which this suit was commenced, and recovery had. It is first to be observed that, in regular session, the general assembly has the widest latitude, and is at liberty to act upon any question whatsoever, in any manner not in conflict with the state or federal constitutions, concerning which it has authority to legislate. It is equally true that, by the express terms of the constitution, the general assembly, in special session, can do no business whatever, except upon a subject specially named in the proclamation of the governor. In regular session, the power to determine the subject-matter of legislation is with the general assembly exclusively. By the constitution, it is made the duty of the chief executive to determine and specially name in his proclamation what, in special session, the subject-matter of legislation shall be. It is true that, when the governor has specially named the subject-matter, the form, scope and character of legislation is wholly within — 285 — the discretion of the general assembly. The governor has no power to direct what the legislation shall be, but he has sole authority, and by the constitution it is made his duty, to specially name what the subject-matter shall be. Unless the governor, in his proclamation, specially names some particular subject-matter of legislation, the general assembly, at a special session, is without power to pass any law. The duty having been placed on the governor to specially name the legislation in which the general assembly shall engage when called together in special session, that duty can only be discharged by him. It may not be left to the general assembly to choose for itself the subject-matter upon which, at such sessions, it will legislate. What special sub- _ ject-matter of legislation was named by the governor when he said, ‘ ‘ To enact any and all legisla-' tion relating to or in any wise affecting corpora- . tions, both foreign and domestic, of a g^asi-publie nature”? JSFone whatever, absolutely none. On the contrary, he simply pointed out a certain class of • artificial persons, concerning which there might be • legislation, and left the general assembly a free rein. to legislate in reference to them at will. In other' words, he specifically pointed out the persons, the." class, the interests to- be affected, but not the special - business or subject-matter of legislation. He left ■ the legislature to determine this for itself, when, by a direct and positive constitutional provision, that particular function was and is for him to' discharge, and for him alone. It is argued by counsel that the proclamation is broad enough to admit the particular legislation in question. That is all too true. The fundamental defect of the proclamation is that it is too broad, and not specifically confined. It permits of any and — 286 — every kind of legislation, concerning’ foreign and domestic corporations of a gwsi-public nature, in which, the members of the general assembly may care to engage. It leaves the legislature to determine for itself what the subject-matter or matters of legislation shall be, while, by the direct mandate of the constitution, the governor, and none other, is specifically required to determine that very thing. The vice in paragraph 3 of the proclamation is, that it is not narrowed to the naming of some particular subject-matter of legislation. No subject of special legislation having been named, under this provision of the proclamation, no legislation whatever was competent. This constitutional provision contemplates that there shall first exist in the executive’s mind a definite conception of a public emergency, which. demands an extraordinary session, and then he may convene the general assembly for action upon that particular subject-matter, to- be specially named. If it be competent for the governor, after the general manner attempted, to authorize the general assembly to select for itself the subject-matter of legislation and enact laws accordingly, then it is equally permissible for him, in his proclamation, to say that the general assembly is called in special session “To enact any and all legislation relating to- or in any wise affecting the qualified voters of the state, or the taxpayers of the state, or the citizens of the state, ’ ’ and thus the door is opened wide for general legislation at a special session. The sole difference between these suggestions and the designation which the governor actually did make, is one of degree; there is absolutely none in character or kind. If the governor may empower the legislature, in the face of the constitution, to- enact any and all legislation by merely pointing out the person, class or interest to be affected thereby, instead of specially naming — 287 — the subject-matter of legislation, then the constitutional provision is utterly disregarded, and its main and most wholesome and salutary purpose, that of confining legislation tc the specific subject-matter concerning which an emergency is believed to exist, completely nullified. If this provision of the constitution has a meaning, it must mean what it says, and if it does, the governor failing, in the paragraph of his proclamation under discussion, to specially name any subject-matter of legislation, the enactment thereunder of the so-called “Bailroad Fencing Statute” was unauthorized, and is, therefore, without warrant of law and void: This seems so plain that neither argument nor illustration can make it plainer. "We have been unable to find another case, in this or any other state, where the governor has failed in his proclamation to specially name the subject-matter upon which he felt the emergencies of the case required legislation. The attempt to name the business to be transacted, by pointing out the persons or interests to be affected by the proposed legislation, is a plain evasion of a positive constitutional mandate, which the courts should not approve. Such course is out of harmony with all precedents that have been called to our attention. In re Governor’s Proclamation, 19 Colo. 333, the court sets forth that, £ £ By paragraph 20 of the proclamation, the governor, among other things, states the purpose of convening the legislature to1 be the amendment of the attachment laws of the state.” The “attachment laws” was the subject of legislation, and not a word was said about the parties to* be affected by it. The fact is, it is wholly immaterial whom the enactment may affect. In People v. Johnson, 23 Colo. 150, it is shown that the governor’s proclamation called for an amendment of the Australian ballot law. In Par — 288 — sons v. The People, 32 Colo. 221, the act whose constitutionality was questioned was passed in pursuance of the governor’s proclamation, which called for legislation “To- provide the necessary revenue to pay the expenses of the state government and of state institutions for the fiscal years ending Novemvember 30, 1901 and 1902, and to enact a revenue law for the state providing for the assessment of property for taxation and the levy and collection of taxes. ” In State v. Shores, 31 W. Va. 491, cited by appellee, the proclamation called for legislation ‘ ‘ To protect' the public against unnecessary expenditures by regulating the costs, charges and proceedings in criminal cases before justices of the peace and circuit'courts.” In Baldwin v. State, 21 Tex. Ct. App. 591, the subject-matter of legislation was there also specifically pointed out, namely, taxation, and the legislature was free to pass laws' at will upon that subject. In C. B. & Q. Ry. Co. v. Wolfe, 61 [Neb. 502, upon which the appellee mainly relies to have this act upheld, the subject there named was “The revision or amendment of the general incorporation law. ’ ’ This case has no application whatever to the case at bar. It is not only not parallel, it is not even analogous. There the subject of legislation was, in fact,' particularly pointed out and named. Moreover, the kindred constitutional Nebraska provision is essentially different from our own, in that it does not provide that the' governor shall, by his proclamation, specially name the business to be transacted. Article II, sec. 12, of the constitution of that state, upon this subject reads: “But the legislature may, on extraordinary occasions', be convened-by proclamation of the governor, and when so convened shall transact no business except such as relates to the object for which they were so convened, to be stated in the proclamation of the governor.” — 289 — The object for which the legislature was convened in Nebraska was, under the third provision of the proclamation, “The revision or amendment of the general incorporation law.” Here is a clear object stated for which the legislature was convened, and the general assembly was at liberty to pass any legislation whatsoever which amended or revised the general incorporation law of that state? In view of the wording of the constitutional provision of Nebraska, under consideration there, and of the fact that the object'of legislation was specifically pointed out in the call, that decision does not in the slightest militate against this holding, or conflict with the views here announced. In re Governor’s Proclamation, supra, having reference to the purpose of the constitutional provision here under consideration, this court, speaking through Mr. Justice Elliott, among- other things,had this to say: “The questions submitted require the consideration and construction of section 9 of article IY of the constitution. In the light of other constitutional provisions it is not difficult to- determine the object of this section. The framers of the constitution, apprehending- evil from frequent legislative sessions, and from too much legislation, provided for biennial sessions, and limited such sessions to a short period of time. It was then considered that changes in the laws of the state oftener than once in two years were not desirable, and that a reasonable time was necessary for our people to become acquainted with new statutes and test their value before attempting to change them. It is undoubtedly true that if legislative sessions were more frequent the statutes enacted by one legislature would hardly be published before a succeeding legislature would begin to change, modify or repeal them. * * * As a pro — 290 — tection against' any sudden or unexpected emergency requiring action by the legislature, ,our constitution provides that a special session may be convened by proclamation of the governor. It is expressly provided, however, that such special session shall not be convened for general purpose's, but that the business to be transacted at such session shall be limited to matters named in the executive proclamation. * * * The governor is required to state in his proclamation the purpose for which the legislature is to assemble in special session; and it is provided that at such session no. business shall be transacted other than that specially named in the proclamation. The governor is’ thus invested with extraordinary powers; he alone is to determine when there is an’ extraordinary occasion for convening the legislature; and he alone is to' designate the business which the legislature is to. transact when thus convened. * * * The legislature cannot go beyond the limits of the business specially named in the proclamation; nor can it legislate upon business not named in the proclamation.” Speaking to a constitutional' provision similar to the one now under consideration, the supreme court of Tennessee, in Mitchell v. Turnpike Company, 22 Tenn. 456, said: “This is undoubtedly a very salutary'provision, tending somewhat to check over-legislation, and to render laws a-little more stable, by furnishing a period of two years, during which they may be in some degree subjected to the test of a brief experiment.” In the ease of Jones v. Theall, 3 Nev. 233, commenting. upon the purposes, of a constitutional provision there, substantially liké our own, being section 9 of 'article Y of the Nevada state constitution, reading as follows: “The governor may, on extraordinary occa — 291 — sions, convene the legislature by proclamation, and shall state to both houses, when organized, the purpose for which they have been convened, and the legislature shall transact no legislative business except that for which they were specially convened, or such other legislative business as the governor ma3r call to the attention of the legislature while in session. ’ ’ The supreme court of that state said: “There is certainly no ambiguity in_this language; unless we adopt the saying of Talleyrand— that words are given to conceal ideas — there can be no difficulty in ascertaining the object sought to be accomplished by this section of the constitution. The powers of the legislature at its special sessions are expressly and clearly limited to the transaction of the business for which it may be convened, or such other business as the executive may call to- its attention whilst it is in session. .If the legislature can break through this limit for one purpose, it may for all purposes, and enter upon general legislation. ’ ’ • In the case of Wells v. Missouri Pacific Ry. Co., reported in 110 Mo., page 286, in determining the constitutionality of an act passed at a special session, where it was contended that the legislation was not within the proclamation, in construing constitutional provisions relating to the matter here under consideration, and reading as follows: “On extraordinary occasions he may convene the general, assembly by proclamation, wherein he shall state specifically each matter concerning which the action of that body is deemed necessary. “The general assembly shall have no power, when convened in extra session by the governor, to act upon subjects other than those specially designated in the proclamation by which the session is — 292 — called, or recommended by special message to its consideration by tbe governor after it shall have been convened. ’ ’ The supreme court there had this to say: “We conclude that the ‘act’ does not fall within range of the subjects submitted to the assembly for action by the governor in his proclamation and messages. “Is it, therefore, to be pronounced void? That depends on the legal 'energy to be ascribed to those parts of the constitution first above quoted. In them, as in some other portions of that document, the people have seen fit, for satisfactory reasons, to place limitations upon the full use of legislative power. They have commanded, in the most solemn manner, an observance of certain forms in the process of legislation, because (we may assume) they were led by experience to believe those forms conducive to* better results than had been otherwise attained. “It is not for us to question the reasons of that policy or to- construe the life out of their deliberate act. When they have said, as in the language before us, that ‘the general assembly shall have no power in extra session to• act upon subjects other than those specially designated,’ etc., it is our duty to give effect to that statement. To hold that such language is merely directory would amount, in substance, to amending the instrument so as to import that the assembly should have no such power unless it assumed that power. Such a reading, we conceive, would reduce the command to a dead letter and virtually eliminate it. It is a reading we do not feel at liberty to adopt, however great the respect we entertain for the legislature. ‘ ‘ The power of construing the constitution must necessarily be lodged in some department of govern — 293 — ment to insure that practical sanction of its mandates which is essential to preserve their vitality and force. This delicate and sacred trust is devolved upon the judiciary as a manifestation of the political principle that ours is a government of laws. rather than of men. In exercising that power the courts should take a large and comprehensive view of constitutional language, mindful that ‘ every scripture is to- be interpreted by the same spirit which gave it forth,’ and with a deep desire to- enforce its full and exact meaning. Thus- viewing the very definite provision before us we cannot regard it otherwise than as mandatory. “When the people have declared a certain form indispensable to the proper expression o-f their will, it is no part of our function to- adjudge that form unnecessary or immaterial. On the contrary, our bounden duty is to enforce that declaration. “It follows that the ‘act’ in question cannot be sustained as a constitutional exertion of the lawmaking power. ’ ’ Note with what cogency of reasoning and lucidity of statement the court of final resort in Missouri states its conclusions on this subject. If expressly written for that purpose, the situation before us could not have been more accurately o-r appropriately portrayed. Those views, so aptly expressed, may well be adopted as our own. The judgment is reversed and cause remanded, with instructions to the court below to dismiss it. Decision en banc. Reversed and remanded. Mr. Justice Hill and Mr. Justice White dissent.