State ex rel. Langer v. Olson

Bronson, J. This is an application for the exercise of the original jurisdiction of this court to compel the state treasurer to make payment of a state warrant to the relator Morris, for her salary, as a special clerk, in the office of the state auditor, from December 19th, 1919, to December 31st, 1919. Among the issues presented, the prime question involved is the validity of S. B. No. 40 and H. B. No. 44, adopted by the special session of the legislative assembly of 1919, as present operative laws, pursuant to the provisions of H. B. No. 60, also enacted by such special session, which makes operative such acts ten days after the close of the session. The relator Morris is a special clerk in the office of the state auditor. She has presented a warrant issued by the state auditor for her salary as such clerk from December 20 to December 31, 1919. The state treasurer has refused payment. The warrant was issued upon a voucher for her salary, payable out of the contingent fund of the state auditor, such voucher being approved by the state auditor and the state auditing board as composed pursuant to § 375, Oomp. Laws 1913. The special session of the legislative assembly held from November 25, — 618 — 1919, to December 11, 1919, passed acts wbicb affect tbe composition of sucb state auditing board and the contingent fund of sucb state auditor. S. B. No. 40, enacted by this special session, amends said § 375, Comp. Laws 1913, by removing from tbe state auditing board tbe state auditor and tbe secretary of state, and substituting instead tbe commissioner of agriculture and labor, and tbe state bank examiner. H. B. No. 44 amends tbe Budget Act (Laws 1919, chap. 16), by making large and substantial reductions in tbe amounts of tbe appropriations for various departments and, in particular, eliminating tbe contingent fund of tbe state auditor, out of wbicb tbe salary warrant involved is payable. Measures were enacted which changed tbe composition of tbe emergency commission (II. B. No. 13), tbe composition of tbe state equalization board (S. B. No. 26), reduced tbe number of assistants to tbe attorney general (S. B. 4 & 13), and transferred tbe licensing and inspection of pool balls and theaters, etc. (H. B. No. 7), from tbe department of tbe attorney general to tbe state sheriff. In all, this special session enacted some seventy-two measures; thirty-three of these were emergency measures, enacted as sucb pursuant to tbe constitutional provisions requiring for each a two-tbirds affirmative vote of both branches of tbe legislative assembly; thirty-nine of sucb measures did not receive sucb two-tbirds vote, and were enacted by a majority vote. Among these measures so receiving a majority vote are S. B. No. 40, H. B. No. 44, H. B. No. 60 and tbe measures affecting tbe department of tbe attorney general. H. B. No. 60 reads as follows: “An act declaring and defining tbe time within wbicb laws passed at any special session of tbe legislative assembly shall take effect. “Whereas, tbe Constitution of this state fails to define time within wbicb laws enacted at any special session shall take effect, and “Whereas, there should be some definite and certain time when sucb laws take effect, therefore “Be it enacted by tbe Legislative Assembly of tbe State of North Dakota “All acts of any special legislative assembly of tbe state of North — 619 — Dakota shall take effect within ten days after the close of any such special session, unless the legislature by a vote of two thirds of the members present and voting in each house shall declare it to be an emergency measure, in which event it shall take effect and be in force from and after its passage and approval by the governor.” In the senate, this bill was approved by a vote of twenty-nine ayes and twelve nays; in the house, by a vote of sixty-six ayes and forty-one nays. It was approved by the governor on December 11, 1919. This act, H. B. No. 60, affecting the measures as above stated has created uncertainty and doubt as to the composition and powers of certain existing boards, the existence of the contingent fund, involved, and also salaries, the auditing of accounts, and the prerogatives and functions of state officials. The issues present squarely a question for the exercise of the original jurisdiction of this court, involving the prerogatives and functions of state officials. If H. B. No. 60 is a present operative statutory enactment, which affects acts, not emergency measures, adopted by this special session, clearly the salary warrant involved herein should not be paid both by reason of want of auditing by a proper state auditing board, and also by want of a fund out of which payment may be made; for by the terms of H. B. No. 60, if operative as a law, all the acts of such session, not emergency acts, became effective as laws, commencing on December 22, 1919. On December 20, 1919, there was filed with the secretary of state, referendum petitions upon said H. B. No. 60, which the secretary of state has certified are sufficiently signed by some 15,000 electors of the state for referendum to the people of such act under the constitutional amendment (art. 26), provided therefor. The relators contend that H. B. No. 60, without determining the constitutionality of this provision, is, in any event, subject to the ref-endum filed and therefore is suspended; that the act is unconstitutional because in contravention of the constitutional provision, § 67 as amended, providing the time when acts of the legislature, not emergency measures, shall become effective; and, furthermore, that said H. B. No. 60 is unconstitutional because violative of § 61 of the Constitution which provides that no 'bill shall cover more than one subject. — 620 — The respondent contends that, as applied to a special session of the legislative assembly, there exists no constitutional provision applicable concerning the time when the acts involved become operative; that §' 67 of the Constitution as amended does not apply to a special session of the legislative assembly; that H. B. No. 60 covers one subject, namely, the time when acts of a special session become effective; that even though H. B. No. 60 be deemed subject to the referendum petitions filed, and therefore suspended (which is not admitted), the constitutional provisions concerning time not being applicable to a special session, the acts involved and which the relators contend are not effective as laws, became effective as laws immediately upon their passage and approval. The contention of the relators, without a consideration of the constitutionality of the subject-matter of H. B. No. 60, is that this act is neither stated to be in terms nor has it been adopted as an emergency measure; that, therefore, it is subject to the provisions of the constitutional amendment granting the right to referend and suspend measures not adopted as emergency measures by a legislative assembly; that referendum petitions have been filed which are sufficient to so suspend such act until voted upon by the people. Plainly, this contention, even though it be recognized as tenable, and, further, that proper referendum petitions have been filed so as to suspend such act, does not avail the relators in any manner in support of the writ sought herein. If, for any reason, or upon the theory advocated by the respondents, the subject-matter of H. B. No. 60 is constitutional, and the constitutional provision concerning when acts of the legislature are operative as laws, does not apply to a special session of the legislature, then there exists no law, constitutional or statutory, fixing the time when acts of a special session become laws. The general rule of law then obtains, not denied by the parties, namely, that statutory enactments, in the absence of constitutional or statutory provision, take effect upon their passage and approval. The main acts involved herein are H. B. No. 44 and S. B. No. 40 relating respectively to the new state auditing board and the contingent fund involved. H. B. No. 60 is concerned with the rights of the relators only as its subject-matter pretends to make operative said S. D. — 621 — No. 40 and H. B. No. 44 as laws. If H. B. No. 60 is suspended and referred and the constitutional provision quoted does not apply to a special session, such acts are now-operative as laws, and concededly relators cause of action fails. It results, therefore, that the principal question before this court is whether in fact, the constitutional provisions, providing a time when the acts of a. legislative assembly become effective, apply to a special session of the legislature. It is not denied by the parties that if the constitutional provisions invoked do not apply to a special session of the legislative assembly, the act is a valid statutory enactment; that, on the contrary, if such constitutional provisions do apply, the act in question is unconstitutional. In determining this prime and decisive question it is necessary to briefly consider the constitutional provisions invoked and such other constitutional provisions, legislative enactments, or interpretations, together with judicial decisions which may serve to throw light upon the determination of this question. The original constitution of this state was submitted to and adopted by the people on October 1, 1889, and, at the same time, state officers were elected. The state was admitted into the Union by presidential proclamation on November 2, 1889. In this Constitution (art. 2, § 67) it is provided: “No act of the legislative assembly shall take effect until July 1st, after the close of the session, unless in case of emergency (which shall be expressed in the preamble or body of the act)., the legislative assembly shall by a vote of two thirds of all of the members present in each house otherwise direct.” In this Constitution it is also provided that the governor upon assuming the duties of his office shall issue his proclamation convening the legislative assembly of the state. Sched. -.§ 17. That all laws now in force in the territory of Dakota, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or be altered or repealed. Sched. § 2. Accordingly the first session of the legislative assembly of this state, by the governor’s proclamation, was convened and met on November 19, 1889. It thereupon proceeded to elect United States Senators and — 622 — to enact statutory acts for the state. This session concluded on March 18, 1890. In reviewing the acts enacted by this first session, it is apparent that this legislature conformed with the constitutional provisions concerning the time when its acts should become operative as laws. This legislature enacted acts prior to the month of January, 1890. Many emergency measures were passed at this session. In many of such acts it is particularly recited that it is necessary for the act to take effect before July 1st, following. Laws 1890, chap. 145, 146, 169, 170, 185, 197. At this time there was also existing a territorial act that all laws enacted by the legislative assembly, unless otherwise expressly provided therein, should be in force and effect on the 1st day of July after their passage and approval. Terr. Laws 1889, chap. 3. This provision was held not to be repugnant to the constitutional provisions in Re Hendricks, 5 N. D. 114, 121, 64 N. W. 110. Was the session of 1889 — 90 a special or extraordinary session, or a regular session ? In State ex rel. Larabee v. Barnes, 3 N. D. 319, 55 N. W. 883, the question was raised concerning the constitutionality of certain legislation enacted at this first session. It was contended that this session, convened before the regular time of a regular session, and prior to the commencement of a legislative term, as constitutionally prescribed for the legislators elect, contravened the constitutional provisions (§ 41, art. 2) which provided that such term of the legislative members should commence on the first Tuesday of January after their election, and (§53, art. 2) which provided that the legislative assembly should meet on the first Tuesday after the first Monday in January, in the year following the election of its members. It was held that these constitutional provisions did not apply to this first session; that it applied only to subsequent legislatures, whose members were elected in the regular manner. Nevertheless, this first session, convened by the governor’s proclamation, at a time anterior to the regular session provided in the Constitution, conformed to the constitutional provisions concerning the time when its acts should become effective as laws. — 623 — 'In Ee Hendricks, supra, the constitutional provisions (§ 67) were considered. The question arose concerning the time when the 1895 Eevised Codes of this state went into effect; the legislature of 1893 (Laws 1893, chap. 74) provided for the revision and codification of the laws, and that the Eevised Codes, when compiled, should take effect and be in force thirty days after the proclamation of the Governor announcing the delivery and his acceptance of the Codes delivered. The proposed Eevised Codes also covered measures to be enacted by the subsequent or succeeding legislative assembly. In 1895, the legislative assembly passed acts, some with emergency clauses, and some without emergency clauses. It was held competent for the legislature to constitutionally prescribe a date subsequent to July 1st, succeeding their passage, when anticipated laws should take effect. That emergency clauses of the 1895 legislature, however, became effective upon passage and approval. In the original Constitution, § 25, art. 2, provides: “The legislative power shall be vested in a senate and a house of representatives.” In November, 1914, this § 25 was amended by a constitutional amendment, submitted to and ratified by the people, which provides that the legislative authority shall be vested in the legislative assembly consisting of a senate and a house of representatives, but that the people reserved to themselves the power to propose laws, etc., and the power to approve or reject at the polls any act, item, or section or part of any act or measure, passed by the legislative assembly. In such amendment, provision was made for referring any act by- filing referendum petitions therefor. It was further expressly provided in this amendment that, when necessary for the immediate preservation of the public peace, health, or safety, a law should become effective without delay, such necessity, and the facts creating the same, should be stated in one section of the bill, and if, upon an aye and nay vote in each house, two thirds of all the members elected to each house should vote, on a separate roll call, in favor of the said law going into instant operation, such law should thereupon become operative upon approval by the governor (art. 15, Amend. Const.). This amendment came into question before this court in the case of State ex rel. Langer v. Crawford, 36 N. D. 385, 162 N. W. 710, Ann. Cas. 1917E, 955, where the — 624 — question concerning the Board of Regents Act (Laws 1915, chap. 237) was presented, among other questions, when such act became effective. This act had been adopted by an emergency provision pursuant to § 67, Const, but not pursuant to the emergency provision contained in said art. 15 (§ 25 amended). Two members of this court held that the emergency measure could be made effective as a law under § 67, Const. Two other members of this court held that an emergency measure to be made effective must be pursuant to said art. 15. On November 5, 1918, § 67 of the original Constitution was amended by a constitutional amendment submitted to and ratified by the people. Const, art. 27 Amend. The amendment reads as follows:— “No act of the legislative assembly shall take effect until July 1st after the close of the session, unless the legislature by a vote of two thirds of the members present and voting, in each house, shall declara it an emergency measure, which declaration shall be set forth in the act, provided, however, that no act granting a franchise or special privilege, or act creating any vested right or interest other than in the state, shall be declared an emergency measure. An emergency measure shall take effect and be in force from and after its passage and approval by the governor.” At the same time, said art. 15 (Amendment of said § 25), was again amended by constitutional amendment submitted to and ratified by the people. The provision mentioned in said art. 15, concerning the method of adopting an emergency measure by the legislative assembly was eliminated in this amended article. Art. 26. It was transplanted in an amended form to the amendment of said § 25, art. 27. Among the provisions of this amendment there may be stated the following (for purposes of consideration, some words or phrases have been underscored by the court): “The legislative power of this state shall be vested in a legislature consisting of a senate and a house of representatives. The people, however, reserve the power, first, to propose measures and to enact or reject the same at the polls; second, to approve or reject at the polls any measure or any item, section, part or parts of, any measure enacted by the legislature. — 625 — “The second power reserved is the referendum. Seven thousand electors at large may, by referendum petition, suspend the operation of any measure enacted by the legislature, except rnt, emergency measure. But the filing of a referendum petition against one or more items, sections or parts of any measure, shall not prevent the remainder from going into effect. Such petition shall be filed with the secretary of state not later than ninety days after the adjournment of the session of the legislature at which such measure was enacted. “Any measure, except an emergency measure, submitted to the electors of the state, shall become a law when approved by a majority of the votes cast thereon. And such law shall go into effect on the 30th day after the election, unless otherwise specified in the measure. “If a referendum petition is filed against an emergency petition such measure shall be a law until voted upon by the electors. And if it is then rejected by a majority of the votes cast thereon, it shall be thereby repealed. “The word 'measure’ as used herein shall include any law or amendment thereto, resolution, legislative proposal, or enactment of any character. “This section shall be self-executing and all of its provisions shall be treated as mandatory. Laws may be enacted to facilitate its operation, but no laws shall be enacted to hamper, restrict, or impair the exercise of the rights reserved to the people.” Said arts. 26 and 27 are now a part of the Constitution. State ex rel. Byerly v. State Canvassers, ante, 126, 172 N. W. 80. In 1892 a special session of the legislative assembly was held from June 1st, to June 3d, inclusive; seven acts were adopted. No attempt was made to prescribe a different date when such acts should become laws than that prescribed by the Constitution. In 1918 again a special session of the legislature was held from January 23d, to January 29th; twelve acts were passed. All of these acts were enacted with emergency clauses approved by a two-thirds affirmative vote of the members of each house, upon a separate roll call, in accordance with the constitutional provisions concerning emergency clauses then existing. In the recent special session involved herein, it is clear that, with the exception of H. B. No. 60, no attempt was — 626 — made by this special session to enact measures other than in conformity with the constitutional provision concerning emergency measures or when acts otherwise should become effective. 'Thus far it is evident, that there exists, through a constitutional provision, legislative actions or construction, on judicial interpretation, concerning the time when statutory enactments become effective as laws, three, or possibly four, methods. (1) By an emergency clause to make the act effective as a law upon passage and approval by the necessary two-thirds affirmative vote required by the constitutional provision. (2) By permitting an act not stated or adopted as an emergency act to become effective July 1st, after the close of the session, pursuant to the constitutional provision. (3) By a specific provision in the act providing that such acts shall become effective as a law at a time subsequent to July 1st, after the close of the session. - (4) Possibly by the referendum of an act not an emergency measure to the people, and through adoption of the same at an election, whereupon pursuant to the Constitution, concerning the referendum (art. 27), such act becomes effective as a law thirty days after such election. The third method was adopted by the legislative assembly of 1913, when it provided, in the act, that the same should go into effect on January 1, 1914. Laws 1913, chap. 194. The pertinent question now is, “Do these constitutional methods and constitutional provisions quoted apply to a special session of the legislature?” “Do they apply to S. B. No. 40 and H. B. No. 44 and, particularly, to H. B. No. 60 which, by its terms, makes the former acts effective as laws within ten days after the close of the special session ?” No question is raised, and no contention is made, that such constitutional provisions do not apply to a regular session of the legislature. There is, likewise, no contention that a regular session, by resolution or enactment, may contravene these constitutional provisions. These propositions stand admitted. If the constitutional provisions quoted apply to a special session, S. B. No. 40 and H. B. No. 44 do not become effective as laws until July 1st, next. This is evident. — 627 — If they do not apply to a special session, then S. B. No. 40 and II. B. No. 44 became laws upon their passage and approval, unless, by the ten days’ period mentioned in such act, their effect as laws has been postponed. If H. B. No. 60 has been suspended by the referendum, S. B. No. 40 and H. B. No. 44 are now effective as laws. In either event, relator’s cause fails. Nor it is a general rule, not denied by the parties, that statutory enactments take effect upon their passage and approval, unless there be constitutional or statutory provisions to the contrary. Sutherland, Stat. Constr. § 104; 36 Cyc. 1196. H. B. No. 60, therefore, demands consideration only to the extent that it affects S. B. No. 40 and H. B. No. 44, concerning the time of their operation, and to that extent involves herein possibly the question of salary in the interval of time. 'What is the legislative •power ¶ In whom is it vested? How may it be exercisedf These questions are answered in the Constitution of this state directly and explicitly. In constitutional construction, it is elemental to state that constitutional provisions are to be construed so as to give effect to every part and portion of a constitution as a harmonious whole where possible. 8 Cyc. 730; State ex rel. Collins v. Jackson, 119 Miss. 727, 81 So. 7. The Constitution states that the legislative power is vested in a legislature, with the right of initiative and referendum to the people reserved. Art. 27. The term “legislature” is synonymous with “legislative assembly.” § 52. It will be noted that this power is possessed not alone by the legislature, but also by the reserved powers of the people through the initiative and referendum. This legislative power so vested is all the power resident in the legislative department of a sovereign government in our tripartite form of government. The legislative assembly composed of a senate and house of representatives (§ 52), exercise as such the legislative powers at session, subject to the constitutional provisions therefor. These sessions are biennial, except as otherwise provided in the Constitution. § 55. — 628 — It is otherwise provided in the Constitution for the first session being convened by the governor and for the power to convene the legislative assembly on extraordinary occasions. § 75. Can there be any question that the legislature which met in special session in 1919 was a legislative assembly ? Can it be doubted that such session was not a session of the legislative assembly ? Is there any room for construction or argument that, under the Constitution, the same members of the house and the senate might one day be sitting in regular session bound by the constitutional provisions, requiring a two-thirds vote in order to enact an emergency measure, and that acta not so passed should not become effective until July 1st, and that several days later, after adjournment and reconvenement by the governor, this same legislature composed of exactly the same members, sitting in special session, would have the power to enact statutory enactments, irrespective of the constitutional provisions, and in disregard of the legislative power reserved to the people in the initiative and referendum 1 Section 67 of the Constitution as amended by its direct and explicit language, which” provides that no act of the legislative assembly shall take effect until July 1st, after the close of the session. This is general and inclusive language. There ought to be no question concerning its application to a legislative session whether in regular or special session. The contention is made that in § 67 the statement '“after the close of the session” was particular in referring to a regular session, but in the same article reference is made in §§ 55 and 56 to all sessions of a legislative assembly — the biennial sessions and those otherwise provided in the Constitution. In People ex rel. Carter v. Rice, 135 N. Y. 473, 16 L.R.A. 836, 31 N. E. 923, the point was made that an extraordinary session was not such a session as was contemplated by the Constitution. It was held than an extraordinary session is nevertheless a session of the legislature. That the governor iby the terms of the Constitution has the power to convene the legislature on extraordinary occasions, and that when convened the legislature was in session. No distinction in the Constitution can be found in terms between the powers and duties of a regular and a special session of the legisla — 629 — tive assembly. Tbe powers, duties, and restrictions upon a legislative assembly are all found in tbe same article of the Constitution. From statehood they have all been followed as applicable. If it be possible for the special session to ignore the provisions of § 67 of the Constitution amended (art. 27) it is possible for it to disregard the entire article which further provides that no act of the legislature, granting a franchise or special privilege, or act creating any vested right or interest other than in the state, shall be declared an emergency measure. If it may disregard the constitutional provisions of said § 67, upon parity of reasoning, the special session may likewise disregard the constitutional provisions mentioned in § 69 of the same article, which provides that the legislative assembly shall not pass certain local or special laws. In November 1918, art. 27 (§ 67 as amended), and art. 26 were ratified by the people as amendments to the Constitution. There can be no question that these two articles specifically reserve the power to the people upon all acts of any description for initiative or referendum purposes. The power reserved to the people in art. 26 to approve or reject any measure' enacted by the legislative assembly not an emergency measure, not only specifically includes all enactments that any legislature may pass, but it distinctly connects up art. 27 (§ 67) which defines emergency measures, with art. 26 covering the initiative and referendum. Furthermore the very term contained in art. 26 that the word “measure” shall include any law or legislative proposal of any character, and, further, that no laws shall be enacted to hamper legislation or impair the exercise of the rights reserved by the people, indisputably show the reservation of legislative power to the people upon all acts or measures of a legislature in uncertain terms. True it is that every reasonable presumption must be drawn in favor of the validity and constitutionality of legislative enactments. The solemn acts of a legislative assembly should not be overturned upon light considerations. This is indeed emphasized by the constitutional policy expressed in this state by the amendment to -our Constitution which requires four members of this court to assent to the declaration of the unconstitutionality of a statutory enactment. The Constitution, however, is the supreme law of this land. Its provisions are equally — 630 — obligatory upon the court, and upon the legislature. It is the duty of this court to uphold the Constitution in its plain words and meaning, so long as this court has imposed upon it the sworn duty to uphold the Constitution. In this Constitution the people of the state have placed restrictions and checks upon the exercise of legislative powers. In it the people of this state have reserved to themselves the right to approve or reject legislative powers exercised by the legislative assembly. The plain mandates of the Constitution must be followed. When the legislative branch transcends or violates such constitutional mandates, the court, following its sworn duty, can do nought else than so declare. Following its sworn duty concerning the inviolability of constitutional provisions, rules of expediency, or of impropriety concerning constitutional provisions, have no application. Neither may public clamour, majority desire, present apparent need, if any, unreasonableness of constitutional provisions as particularly applied, influence or swerve the court in following its sworn duty. The constitutional provisions. involved clearly apply to a special session of the legislature. Under such constitutional provisions, S. B. No. 40 and H. B. No. 44 have not yet become operative as laws. ' Likewise, H. B. No. 60, being subject to the constitutional provisions mentioned, and not being adopted by the requisite vote constitutionally required concerning emergency measures, does not become operative as a law, until July 1st, next, or until sooner ratified by the people, pursuant to such constitutional provisions. It therefor does not apply to the time when S. B. No. 40 and H. B. No. 44 become operative as laws. The determination of these constitutional questions, necessarily affords to the relators the relief demanded. No issues have been raised and this court does not express any opinion upon what salaries or disbursements may be made out of the contingent fund, involved, or, upon the retrospective effect, if any, of the acts of the special session, when the same do become operative. The writ demanded should issue forthwith. Biedzell, J. • This is a petition for a writ of mandamus directed to the state treasurer to .compel him to pay a warrant of $40 previously — 631 — issued to one of the relators in payment of salary earned by her as special clerk between the dates of December 20 and December 31, 1919. A fund, known as tbe state auditor’s contingent fund, was previously appropriated by tbe legislature in § 2 of chapter 16 of tbe Session Laws of 1919 and tbe warrant in question was drawn so as to be payable out of that fund. Payment is refused by tbe defendant on tbe ground that an amended budget contained in House Bill 44, which was enacted at a special session of tbe legislature in November and December, 1919, repeals tbe previous appropriation of tbe auditor’s contingent fund. There is no contention made here that House Bill 44 of tbe special session does not repeal tbe appropriation previously made by tbe regular session, but it is contended by tbe relators that tbe repeal does not take effect until July 1st, 1920. Tbe ultimate question for decision is whether or not tbe appropriation for tbe contingent fund, upon which tbe warrant in question was drawn, was an appropriation legally existing and available for tbe payment of services of a special clerk from December 20 to December 31, 1919. House Bill 44 of tbe special session, which for brevity may be referred to as- tbe amended budget-, was passed without receiving a two-tbirds vote on tbe emergency feature, which, according to tbe title, bad been declared in tbe bill, and it was approved at 11:30 a. m. December 13, 1919. Tbe special session of tbe legislature bad adjourned previous to tbe approval of this bill at 12 o’clock noon on tbe 11th day of December, 1919. Section 67 of tbe Constitution, in so far as it may be applicable provides : “No act of the legislative assembly shall take effect until July first after tbe close of tbe session, unless tbe legislature by a vote of two thirds of tbe members present and' voting, in each bouse, shall declare it an emergency measure, which declaration shall be set forth in tbe act.” It is clear, and no contrary contention is made, that if tbe foregoing section is applicable, tbe amended budget would not take effect until July 1, 1920. It is equally clear, according to elementary rules governing tbe taking effect of legislative enactments, that, if § 67 of tbe Constitution does not apply, and in tbe absence of other legislation affecting — 632 — the question, the amended budget would take effect immediately upon its approval. It is contended both that § 67 of the Constitution is not applicable to acts passed at a special session of the legislature and that there is other legislation controlling the date at which the amended budget may take effect. House Bill 60, which was approved at 7:10 p. m. December 11, 1919, is referred to as controlling. This bill was likewise passed without receiving a two-thirds vote. It provides that all acts of any special legislative assembly shall take effect within ten days after the close of any special session, “unless the legislature by a vote of two thirds of the members present and voting in each house shall declare it to be an emergency measure, in which event it shall take effect and be in force from and after its passage and approval by the governor.” If the contention of the defendant with respect to the nonapplieability of § 67 of the Constitution be correct, it is obvious that the amended budget was in effect from and after 11:30 a. m. December 13th, 1919, unless by virtue of House Bill 60 it was postponed until the expiration of ten days after the adjournment of the session. The session adjourned, according to the journals, at 12 o’clock noon, on December 11, 1919. The question, so far as it is affected by House Bill 60, is further complicated by the fact that a referendum petition has been filed with the secretary of state which purports to suspend the operation of the bill. From the foregoing statement it will be seen that if neither § 67 of the Constitution nor House Bill 60 controls the time of the taking effect of the amendment budget, it was in operation during all of the time the salary in question was earned. Also that if House Bill 60 controls, the amended budget was in effect from December 21st, and hence for the period of ten of the eleven days during which the salary was earned. The important question, therefore, and it seems to us to be the single question that should be decided, is whether or not § 67 of the Constitution controls the date at which acts passed at a special session of the legislative assembly shall take effect. If it does control, the legislature has no power to prescribe a different date. In fact, it has not attempted to prescribe a different date except upon the sup — 633 — position that § 67 was not controlling, for in the preamble to the enacting clause of House Bill 60 it is stated: “Whereas the Constitution of the state fails to define the time at which laws enacted at a special session shall take effect, etc.” In our opinion it is necessary to consider but one question and that is the meaning and effect of § 67 of the Constitution. To us it seems clear that it applies to all laws passed by the legislature, whether in regular or special session. In that part of the section which refers to the time when legislation shall take effect, the date is fixed at “July 1st after the close of the session, unless the legislature, by a two-thirds vote of the members present and voting, in each house, shall declare it an emergency measure.” The term “session” is here used in a generic sense and would include either a regular or a special session. This language, as employed in article 27 of the amendments, is exactly the same as that originally found in § 67 of the Constitution. In the article devoted to the “legislative department” reference is made to various “sessions” of the legislative assembly. In § 56 there is a limitation as to the length of the “regular session” and in the same section there is a longer limitation prescribed for the “first session.” In § 31 the time of electing a president pro tempore of the senate is fixed as being at the beginning of each “regulár session” and in § 35 the time of providing for the legislative apportionment is fixed as being at the “first regular session” after each census enumeration, with additional power given to reapportion “at any regular session.” It is thus clear that throughout the article dealing with the legislative department, the constitutional convention distinguished wherever it was thought necessary between the regular session, a session specially provided for as the first session, and any other session in which the legislature may be convened; while in § 67, when fixing the time for the taking effect of the acts of the assembly, it only used the expression “the session.” If it were intended that all acts passed at a special session should be deemed emergency measures, it is difficult to see why such pains would be taken to differentiate between regular and special sessions in other particulars and so important a matter as this left to boar inference. Our conclusion is that it was not left to inference at all but rather that § 67 was intended to apply to all legislation, regard — 634 — less of when passed. Deference to the legislative practice from statehood indicates that this section has always heretofore been considered applicable to legislation passed at other than regular sessions. Any other construction than the one we have adopted would render the Constitution inharmonious in other respects. Article 26 of the amendments, which provides for the initiative and referendum, reserves to the people legislative power previously vested exclusively in the legislature by § 25 of the original Constitution. Under this amendment power is reserved “to approve or reject at the polls any measure or item, section, part or parts of any measure enacted by the legislature,” and special provision is made for referring emergency measures to popular vote. An emergency measure is not suspended by the filing of a referendum petition but is repealed in case it is rejected at the polls. This article, for purposes of referendum, nowhere recognizes two classes of emergency legislation, nor does it purport to deal separately with any legislation passed at a special session of the legislature. There is no doubt in our minds that the emergency legislation, upon which the special provisions concerning the referendum operate, is that which carries the two-thirds vote of the members present and voting within § 67 of the Constitution as amended, and that there is no other class of emergency legislation. Under the defendant’s view, every act passed at a special session would be an emergency act regardless of the vote received, and this, no matter how foreign to the subject or subjects embraced in the proclamation. It is argued that, since it is only upon extraordinary occasions that the governor has the power to convene the legislative assembly, it was intended that the enactments of a majority of that body in special session should have immediate effect, particularly if a majority so determine. The unsoundness of this argument seems to us to be quite apparent. The governor is the sole judge of the existence of an extraordinary occasion, but, except through the exercise of his constitutional control over legislation as such, he does not control the exercise of the legislative function. And this is true, even in those states where the governor has power to limit the matters that may be considered at a special session. See Re Governor’s Proclamation, 19 Colo. 333, 35 Pac. 530; People ex rel. McGaffey v. District Ct. 23 Colo. 150, 46 — 635 — Pac. 681; State v. Fair, 35 Wash. 127, 102 Am. St. Rep. 897, 76 Pac. 731. In short, the legislative assembly, when convened either in regular or special session, exercises its functions independently of the executive, and it not only has the right to differ with the executive as to the existence of an extraordinary occasion by passing no legislation, but it also has the right to pass such laws as, in its judgment, will meet the existing situation. If it does the latter, it may even differ with the executive as to when they shall take effect. If it were the intention to make the judgment of the executive as to the existence of an extraordinary occasion controlling as to the time the legislation enacted to meet it should take effect, it would seem that this judgment should prevail over that of a bare majority of the assembly. But in the instant case the majority has attempted to postpone the date ten days. If the majority could postpone the date ten days, it could likewise postpone it ten weeks or ten months. (It could doubtless do the last. In fact the independent power to legislate must imply the power to fix the date when an act shall become a law, provided it be not earlier than that limited in the Constitution, because the legislature must be free to say that its act shall take effect when stated or its members will reject the bill.) So this argument, when analyzed and applied to this case, is in reality inconsistent because it is advanced, not alone to support the contention that the chief executive, by proclamation, controls the time of taking effect of legislation, but that the executive, combined with a majority of the assembly, controls. Surely this element of legislative power does not thus pass a shuttlecock between the chief executive and the legislative assembly. It is clear to us that the matter was not left in so inconclusive a state by the constitutional convention, and that it is adequately covered by - § 67. Under his section all laws go into effect on July 1st after enactment, or later if so stated; unless two thirds of the assembly present and voting agree upon an emergency that fixes an earlier date. It follows that the writ should issue.