Opinion
No. 13,433.
Decision announced December 29, 1933 and opinion filed, as of that date, March 12, 1934.
Original Proceeding. Bill Held Unconstitutional.
1. CONSTITUTIONAL LAW — Legislative Interrogatories. What are "important questions upon solemn occasions" under section 3, article VI, of the Constitution, must be ultimately determined by the Supreme Court itself.
2. Statutory Construction. Every statute duly passed must be held constitutional unless the contrary appears beyond a reasonable doubt. This rule held not applicable to pending legislation when submitted to the Supreme Court for its opinion under section 3, article VI, of the Constitution.
3. Legislation. The general assembly should pass no law the constitutionality of which is a matter of grave doubt.
4. Interpretation. The language of constitutions must, so far as possible, be given its ordinary meaning, and the words thereof, their common interpretation.
5. STATUTES — Construction. In interpreting a law, the intent of those adopting it is controlling.
6. CONSTITUTIONAL LAW — Interpretation. It is not what members of a constitutional convention said or did when drafting the document for submission to the people, but what the people believed it meant when they accepted it as their fundamental law, which primarily must guide the courts in their interpretation.
7. Indebtedness — Revenue. A statute which, at the same time it creates a debt, creates the fund to pay it, and which fund would not be otherwise available for general purposes, is clearly outside the prohibition of section 3, article XI, of the state Constitution.
8. Indebtedness. A proposed bill authorizing the issue and sale of highway debentures by the state, held by its terms to contract a debt within the meaning of the prohibition of section 3, article XI, of the state Constitution.
9. Indebtedness — Defense of State. If the attack or threat from which it becomes necessary to "defend the state," under section 3, article XI, of the Constitution, be not limited to force, it must at least be one equally grave in its possible consequences and one requiring equally strenuous measures. The emergency sought to be met by the bill under consideration does not rise to the solemnity of such an attack or threat.
10. Emergency Legislation. The Colorado Supreme Court does not subscribe to the doctrine that unconstitutional legislation is justified by so-called emergencies.
11. STATUTES — Construction — Words and Phrases. That interpretation of a statute which, brushing aside minor objections and trivial technicalities, effectuates the intent of the act, is a broad interpretation, and that which, regarding such objections and technicalities, fails to do so, is narrow.
12. CONSTITUTIONAL LAW — Interpretation. The purpose of the people in adopting section 3, article XI, of the state Constitution was to keep the state substantially on a cash basis, prohibit the pledge of future fixed revenues, forbid the contracting of debts which must be paid therefrom, and to make certain that one general assembly shall not paralyze the next by devouring the available revenues of both.
Mr. PAUL P. PROSSER, Attorney General, Mr. CHARLES ROACH, First Assistant, Mr. PIERPONT FULLER, JR., Assistant, Mr. PETER H. HOLME, Special Assistant, Mr. W. W. GRANT, JR., Special Assistant, affirming the constitutionality of said bill.
Mr. CLAYTON C. DORSEY, Mr. HENRY McALLISTER, Mr. HORACE N. HAWKINS, SR., Mr. FRANK E. GOVE, amici curiae, denying the constitutionality of said bill.
THE Senate of the Twenty-Ninth General Assembly, now in its second extraordinary session, by Resolution No. 2, unanimously adopted and duly certified, has, under the authority of the second paragraph of section 3 of article VI of the state Constitution, propounded to this court thirteen questions concerning, directly or indirectly, the constitutionality of House Bill No. 6, already passed by the House of Representatives, transmitted to the Senate, and passed by that body on second reading.
The Governor's call for the present extraordinary session of the General Assembly refers to his call for the former session, recites that the emergency therein mentioned "has become even more serious and aggravated," that it is necessary to enact legislation "to allay the present wide-spread public discontent and social unrest * * * to prevent disaster in this critical emergency" and "to defend the State." Then, as provided by section 9 of article IV of the state Constitution, it enumerates the purposes for which the session is called. These are embodied in 19 paragraphs, the first of which reads: "To provide adequate revenues; to make loans and accept grants from the Federal Government; to provide for the financing, construction, repair and improvement of necessary public highways, public buildings and other public works and to authorize the issuance and sale to the Federal Government of debentures or other obligations of the State in connection therewith, and to do any and all other things which shall be deemed necessary to enable this State to meet its obligation to provide relief for the unemployed, indigent and destitute people of this State by means of direct relief or work relief, or both, and to cooperate with the Federal Government in its unemployment relief and National Industrial Recovery programs, and to repeal all acts or parts of acts inconsistent or in conflict with any laws which shall be enacted to accomplish these purposes." The title of House Bill No. 6 is, "A bill for an act to provide for emergency relief and to provide for employment quickly and to defend the state, by authorizing the issue of highway debentures and the sale thereof to the United States of America, for the purpose of raising money in anticipation of the collection of the excise tax on motor fuels; providing for the redemption of such debentures; repealing chapter 8 of the laws passed at the first extraordinary session of the Twenty-Ninth General Assembly, and all acts and parts of acts in conflict herewith; and declaring an emergency."
The following quotations from the Bill show its general purpose and present so much of its body as is necessary to the present consideration:
"Section 1. A critical emergency, arising out of the present economic depression, which has caused widespread unemployment and consequent indigence and dependence on the part of a large portion of the people of the State of Colorado, and has made hopelessly inadequate federal, state and local relief funds, and has caused distress and hunger in such a degree that the public peace, order, tranquillity and safety are seriously affected and endangered and the processes of orderly government itself imperiled, is hereby declared to exist.
"Therefore it is hereby declared to be the policy and purpose of the General Assembly to allay the present wide-spread public discontent and social unrest, to relieve the needy and destitute citizens of this State from want and privation by making provision for work relief in the form of highway construction, repairs and improvements as authorized by this Act, and thus to protect and defend the State.
"Section 2. As a means of carrying out the purposes of Section 1 hereof and to enable this state to avail itself of the provisions of the Act of Congress approved June 16, 1933, known as The National Industrial Recovery Act, or other acts of Congress, and to effectuate the purposes of this Act, the Governor of the State of Colorado is hereby authorized until January 1, 1935, (1) to construct, finance, or aid in the construction and financing of, public highways; (2) to enter into agreements with the United States under such terms and conditions as may be prescribed in accordance with The National Industrial Recovery Act, or other acts of Congress, to borrow money in the aggregate amount of not more than Ten Million Dollars ($10,000,000.00), in the manner and for the purpose herein prescribed, and to accept grants from the United States in the manner prescribed by such acts of Congress in partial payment of the money so borrowed; (3) to execute and deliver such instruments of writing, evidencing such loans and grants, as may be required by such acts of Congress, and in the manner provided for by this Act; and (4) to repay such loans and the agreed interest thereon according to the terms and conditions of the instruments evidencing the same.
"Said loans shall be negotiated by the issuance and sale to the United States of America of highway debentures of the State of Colorado in such serial form, in such amounts, not exceeding in the aggregate Ten Million Dollars ($10,000,000.00), payable semi-annually at such times not exceeding twenty years after date, and bearing such interest, not exceeding four per centum per annum, payable semi-annually, all as the Governor of the State of Colorado may determine. No such debentures shall be issued after December 31, 1934. Said debentures shall be payable to bearer * * *. Immediately upon the registration of said debentures by the Auditor of State, he shall deliver the same to the State Treasurer and charge the amount of the purchase price thereof to said State Treasurer as money received by the State Treasurer in the State Highway Fund of the State of Colorado * * *.
"Section 3. There is hereby created in the office of the State Treasurer a fund to be known as the `State Highway Debenture Redemption Fund'; for the purpose of paying the principal of and the interest to accrue upon the debentures issued under the provisions of this Act.
"Beginning six months in advance of each interest payment date, as fixed by each debenture issued pursuant to the terms of this Act, moneys accruing in the treasury of the State of Colorado and credited to the State Highway Fund from the excise tax levied on motor fuels for state highway purposes under the provisions of `An Act Relating to an Excise Tax on Motor Fuel, and to provide for the disposition of the funds derived therefrom and to repeal Chapter 126 of the Session Laws of Colorado, 1931, and all acts and parts of acts inconsistent or in conflict herewith,' approved April 8, 1933, the same being Chapter 140 of the Session Laws of Colorado, 1933, shall each month be placed in said State Highway Debenture Redemption Fund, equal in amount to one-sixth of such interest payment, until there is sufficient money, but not more, accumulated in said fund to pay such installment of interest on such debenture; * * *.
"Section 4. The amount of money accruing in the treasury of the State of Colorado from said excise tax on motor fuels, as provided in Section 3 of this Act, and equaling the amount of debentures which may be issued and outstanding, with interest thereon, and as collected and accumulated in said State Highway Fund in the manner in said Section 3 provided, is hereby appropriated to, set apart for and shall be paid into and transferred to said State Highway Debenture Redemption Fund, and all moneys accruing or to accrue in the manner set out in this Act for said fund, are appropriated exclusively to and for the payment of said debentures and the interest thereon.
"Section 5. The application and transfer of said moneys arising from said excise tax, as hereinbefore provided, is and shall be a claim and charge on and an application of the same prior and superior to any other charge, claim or application thereof, * * *."
"Section 7. The State Treasurer is hereby authorized, directed and empowered, upon the respective maturities of said debentures and the interest thereon, or the coupons representing interest thereon, if coupon debentures be issued, to pay the same to the bearer out of said State Highway Debenture Redemption Fund, * * *."
"Section 9. The issue and sale of said highway debentures shall constitute an irrevocable contract between the State of Colorado and the United States of America, and the owner or holder of any of said debentures, that the said excise tax on motor fuels at the rate of four cents per gallon, now in force and effect, shall not be reduced below the amount which the State Treasurer is now required to credit to the State Highway Fund * * *, so long as any of said debentures remain outstanding and unpaid, either as to principal or interest, and that the State of Colorado will cause said tax to be promptly collected and sufficient thereof set aside and applied to pay said debentures and the interest thereon promptly according to the terms thereof; and until all said debentures and the interest thereon shall be fully paid, no law shall be enacted repealing said Act approved April 8, 1933, being Chapter 140 of the Session Laws of Colorado, 1933, nor shall said chapter be amended in such manner as to render impossible or impracticable the making of transfers of funds as in this Act provided, in amounts sufficient to meet the requirements of this Act. However, the issue of said debentures shall not constitute a general obligation of the State of Colorado, but shall be payable solely from the excise tax pledged for the payment thereof."
"Section 17. The General Assembly hereby finds, determines and declares this Act to be necessary for the immediate preservation of the public peace, health and safety, and to defend the State.
"Section 18. In the opinion of the General Assembly an emergency exists; therefore, this Act shall take effect and be in force from and after its passage."
The interrogatories now before us are introduced by a recitation of the title of House Bill No. 6, a statement that it has passed the House and passed the Senate on second reading; that, if deemed constitutional, it will probably pass on final reading; that the Attorney General has given an opinion that it is constitutional; that "the Senate still entertains doubts as to the constitutionality of said bill"; that it is designed to meet the "present critical emergency"; that if unconstitutional it will be necessary at the present session "to enact other relief measures in lieu thereof for the purpose of alleviating unemployment and consequent destitution and suffering among the people of the State, which has grown and persisted to such a degree as to imperil the peace, tranquillity, well-being and safety of the State itself"; and that, in the judgment of the Senate, the question of the constitutionality of the bill is important and the occasion solemn. The interrogatories then propounded are:
"1. Does House Bill No. 6 fall within the purview of the Governor's Proclamation calling the Second Extraordinary Session of the Twenty-Ninth General Assembly of the State of Colorado as provided by Section 9 of Article IV of the Constitution of the State?
"2. Does House Bill No. 6 provide for the creation of a debt of the State within the meaning of Sections 3 and 4 of Article XI of the Constitution of the State of Colorado?
"3. If the answer to question 2 be in the affirmative, does said House Bill No. 6 violate Section 3 of Article XI or Section 16 of Article X of the Constitution of the State of Colorado, notwithstanding the recitals contained in Sections 1 and 17 of said House Bill No. 6?
"4. If the answer to question 2 be in the affirmative, does said House Bill No. 6 contravene Section 4 of Article XI of the State Constitution providing that
`In no case shall any debt above mentioned in this article be created except by a law which shall be irrepealable, until the indebtedness therein provided for shall have been fully paid or discharged; such law shall specify the purposes to which the funds so raised shall be applied, and provide for the levy of a tax sufficient to pay the interest on and extinguish the principal of such debt within the time limited by such law for the payment thereof, and the funds arising from the collection of any such tax shall not be applied to any other purpose than that provided in the law levying the same, and when the debt thereby created shall be paid or discharged, such tax shall cease and the balance, if any, to the credit of the fund shall immediately be placed to the credit of the general fund of the state.'
"5. Does House Bill No. 6 contravene any of the following provisions of the State Constitution?
(a) Section 2, Article X, which provides:
`The General Assembly shall provide by law for an annual tax sufficient, with other resources, to defray the estimated expenses of the State Government for each fiscal year.'
(b) Section 11, Article X, which provides:
`The rate of taxation on property, for State purposes, shall never exceed four mills on each dollar of valuation.'
(c) Section 16, Article X, which provides:
`No appropriation shall be made, nor any expenditure authorized by the General Assembly, whereby the expenditure of the State, during any fiscal year, shall exceed the total tax then provided for by law and applicable for such appropriation or expenditure, unless the General Assembly making such appropriation shall provide for levying a sufficient tax, not exceeding the rates allowed in Section eleven of this article, to pay such appropriation or expenditure within such fiscal year. This provision shall not apply to appropriations or expenditures to suppress insurrection, defend the State, or assist in defending the United States in time of war.'
(d) Section 33, Article V, which provides:
`No money shall be paid out of the treasury except upon appropriation made by law, and upon warrant drawn by the proper officer in pursuance thereof.'
(e) Section 34, Article V, which provides:
`No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the State, nor to any denominational or sectarian institution or association.'?
"6. Does said House Bill No. 6 contravene Article III of the State Constitution by conferring on the Governor the exercise of non-delegable powers properly belonging to the legislative department?
"7. Does the General Assembly have power to confer upon, or delegate to, the Governor the powers described in Sections 2, 11, and 12 of House Bill No. 6?
"8. Does the General Assembly have the power, by said House Bill No. 6, to declare, as provided in Section 9 thereof, in substance, that so long as any debentures authorized thereby remain outstanding and unpaid, either as to principal or interest,
(a) The issue and sale of such debentures shall constitute an irrevocable contract between the State of Colorado and the United States of America, and the owner or holder of any of said debentures, that the excise tax on motor fuels at the rate of four cents per gallon now in force, shall not be reduced below the amount which the State Treasurer is now required to credit to the State Highway Fund under the provisions of Chapter 140 of the Session Laws of Colorado, 1933;
(b) That the State will cause said tax to be promptly collected and sufficient thereof set aside and applied to pay said debentures and the interest thereon promptly according to the terms thereof; and
(c) No law shall be enacted repealing said Chapter 140 of the Session Laws of Colorado, 1933, nor shall said chapter be amended in such manner as to render impossible or impracticable the making of transfers of funds as provided in said House Bill No. 6, in amounts sufficient to meet its requirements?
"9. Are the taxes laid by Chapter 140, Session Laws, 1933, excise taxes or property taxes? Is the limitation imposed by Section 11 of Article X of the Colorado Constitution applicable thereto?
"10. Does that part of Subdivision (b) of Section 10 of Chapter 140, Session Laws, 1933, which requires that twenty-seven per cent of the tax on motor fuel shall be paid by the State Treasurer to the credit of the several counties of the state in the proportions therein stated and `shall be expended by said counties only in the construction, improvement, repair or maintenance of public highways in said Counties' contravene the provisions of Section 7, Article X of the Colorado Constitution, which provides that the General Assembly shall not impose taxes for the purposes of any county?
"11. If the answer to question 10 be in the affirmative, would such unconstitutionality render invalid the whole of said Chapter 140, or that part of said sub-section (b) of Section 10 thereof which provides that the State Treasurer `shall pay seventy per cent (70%) to the credit of the State Highway Fund,' particularly in view of the provisions of Section 19 of said chapter?
"12. Does Section 3 of said House Bill No. 6 extend into said House Bill No. 6 the provisions of Chapter 140, Session Laws, 1933, in contravention of Section 24 of Article V of the Colorado Constitution?
"13. Does said House Bill No. 6 authorize the issue of valid obligations to be known as highway debentures of the State of Colorado, substantially of the character and manner described in said House Bill No. 6?"
Section 3 of Article 6 of the Constitution directs that our opinion be given, when required by the governor, the senate or the house, "upon important questions upon solemn occasions." What are such the court must ultimately determine for itself. In Re Appropriations, 13 Colo. 316, 22 Pac. 464; In Re Penitentiary Commissioners, 19 Colo. 409, 35 Pac. 915; In Re Senate Bill No. 416, 45 Colo. 394, 101 Pac. 410.
The present occasion we deem solemn, and some of the questions important, all of which so clearly appears herein as to require no further elucidation; and that said House Bill No. 6, assuming for this purpose only its constitutionality, is within the Governor's call for this extraordinary session, likewise so appears.
To the thirteenth interrogatory our answer is "No," for the reasons hereinafter given in our answers to the second and third.
That portion of said section 3 of article XI here involved reads: "The state shall not contract any debt by loan in any form, except to provide for casual deficiencies of revenue, erect public buildings for the use of the state, suppress insurrection, defend the state, or, in time of war, assist in defending the United States; * * *."
The second question, briefly stated, is, Does said House Bill No. 6 "contract any debt by loan in any form"? If it does, the third question, so stated, is, Is that debt contracted to "defend the state"?
Before attempting to answer these, two general rules of constitutional construction, with the reasons on which they rest, should be noted.
[2, 3] The first of these is that every statute, duly passed must be held constitutional unless the contrary appears beyond a reasonable doubt. Chicago, B. Q. R. Co. v. School Dist., 63 Colo. 159, 165 Pac. 260; Broadbent v. McFerson, 80 Colo. 264, 250 Pac. 852. The reasons for this rule are found in the presumption that public officials, in the discharge of their duties, have acted lawfully; and the fact, of which the courts take judicial notice, that members of the General Assembly have taken an oath to support the state Constitution. Hence follows the presumption that they have not passed an act which violates the fundamental law. It therefore clearly appears that an equally binding rule of legislative conduct is that that department shall pass no law whose constitutionality is a matter of grave doubt, and that if the General Assembly ignores that rule the reason for the judicial presumption of constitutionality disappears and the courts are thus greatly embarrassed in the discharge of the duty devolving upon them. 1 Cooley's Constitutional Limitations (8th Ed.) p. 375.
It will be observed that the judicial presumption above stated is not here applicable because the principal reason upon which it rests is absent. The General Assembly has not passed House Bill No. 6, hence we are not called upon to assume that the Senate, which propounds the questions, is satisfied of its constitutionality. On the contrary it certifies to us that it is not.
[4-6] The second general rule of constitutional construction is that the language of Constitutions must, so far as possible, be given its ordinary meaning, and the words thereof their common interpretation. The records of conventions which framed them are resorted to only when other guides fail. In interpreting a law we endeavor to ascertain the intent of those who adopted it. Hence the importance of legislative intent in the interpretation of statutes. 59 C. J., p. 1017, § 605. But our Constitution was not adopted by a convention. It is, therefore, not what the members of that convention said or did, when drafting the document for submission to the people, but what the people believed it meant when they accepted it as their fundamental law, which primarily must guide the courts in their interpretation. Carton v. Sec'y of State, 151 Mich. 337, 351, 115 N.W. 429, 439; Newell v. People, 7 N. Y. 9, 97; State v. Romero, 17 N. M. 88, 100, 125 Pac. 617; Beardstown v. Virginia, 76 Ill. 34; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; M'Culloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579.
Examining now the second interrogatory in the light of these well recognized rules what have we? Here is a bill which, by its express terms, is "to borrow money in the aggregate amount of not more than $10,000,000," "to execute and deliver such instruments of writing, evidencing such loans," "to repay such loans and the agreed interest thereon." A bill which provides that taxes already imposed are "hereby appropriated to, set apart for and shall be paid into" a fund created and maintained for the repayment of the millions so borrowed. A bill which becomes "an irrevocable contract," and forbids any amendment or modification of an already existing statute, so as to impair the security, under which the tax in question is now being collected "until all of said debentures [notes of the state for the money so borrowed] and the interest thereon shall be fully paid." And the question is, Does this bill "contract any debt by loan in any form," which section 3 of article XI of the state Constitution says the legislature shall not do? It would seem that these quotations from the bill, set over against this constitutional prohibition, leave nothing to answer. We venture the assertion that no man, able to read and understand ordinary English, however otherwise educated or uneducated, wise or foolish, would question for a moment that this bill was a plain violation of the constitutional prohibition, or find any reason to the contrary, save by a resort to profound legal learning and a doubtful application of judicial precedents. Apparently acquiescing in this position the Attorney General and his assistants raise no such question. They say, in effect, that while House Bill No. 6 appears, prima facie, to contract a debt, it does not in fact do so because payment thereof must be made from a "special fund," and in such cases this and other courts, by a course of reasoning here applicable, have held that no debt is thus contracted within the constitutional prohibition.
In examining this position it must be remembered that the act allocates to the payment of the debt, not anticipated revenue from an improvement or industry created by the act, nor even revenue from a source first tapped by it, but revenue already provided in past years, and at present flowing into the state treasury at the rate of millions of dollars per annum.
Since the purpose of section 3 of article XI is to prevent the pledging of revenues of future years, a statute which at the same time it creates a debt, creates the fund to pay it, and which fund would not be otherwise available for general purposes, is clearly outside the constitutional prohibition. If, for example, the state could purchase a machine for making gold out of common clay, and agreed to pay for the contrivance only out of the product, that debt would not be prohibited by said section 3. A careful examination into the character of all debts excluded by judicial construction form the prohibition of said section, and sanctioned under the "special fund" doctrine, will demonstrate that they fall clearly within this class. Into it readily fall debts for local improvements to be paid for by special assessments. City of Denver v. Knowles, 17 Colo. 204, 30 Pac. 1041; Milheim v. Moffat Tunnel Imp. Dist., 72 Colo. 268, 211 Pac. 649; Sanborn v. Boulder, 74 Colo. 358, 221 Pac. 1077.
In such cases the improvement is paid for solely out of the value which it adds to the property of the taxpayer.
Into the same class, and just as clearly, fall debts for public utilities to be paid for from the proceeds of the utility. Shields v. City of Loveland, 74 Colo. 27, 218 Pac. 913; Searle v. Town of Haxtun, 84 Colo. 494, 271 Pac. 629; Reimer v. Town of Holyoke, 93 Colo. 571, 27 P.2d 1032. In such cases the utility is paid for solely out of the revenue it produces, or extensions and improvements (if for such the debt is contracted) are paid for out of the increased revenue which they produce. The Reimer case, supra, clarifies the others, holding any impairment of the general municipal revenues violates the prohibition, and that "any obligation paid or contracted to be paid, out of a fund that is the product of a tax levy is a debt within the purpose of the constitutional limitation." These cases arose under section 8 of article XI which imposes upon municipalities the same restrictions, in the same language, as said section 3 imposes upon the state. They fall within the general constitutional policy as heretofore interpreted by this court. People v. May, 9 Colo. 404, 12 Pac. 838; Goodykoontz v. People, 20 Colo. 374, 38 Pac. 473.
It is said that this bill can be sustained on the theory of a "continuing appropriation" as upheld in In Re Continuing Appropriations, 18 Colo. 192, 32 Pac. 272. But an appropriation made by one General Assembly to pay for services or materials to be thereafter annually furnished, and which "continues" only because future General Assemblies do not, as well they might, discontinue both consideration and payment, and a "continuing appropriation" by a so-called "irrepealable act" to pay in installments, over a long period of years, for services or materials furnished in toto during the current year, are so different in all essential particulars as to have nothing in common save an arbitrary name. If the latter can be upheld under the cloak of continuing appropriations this constitutional prohibition against contracting debts is construed out of existence, for under that cloak any debt may pass.
We doubt not the bill contracts a debt by loan in one form. Is that debt contracted to defend the state? On this question the declarations of the executive and legislative departments of the state government, while probably persuasive, are not binding here. If they were, the Constitution would cease to have even the force of a statute. If the people's "Thou shalt not," can be brushed aside by the simple ipse dixit of their servants thus bound, the mandate is impotent. Such a construction, once adopted, breaks the barrier, and future legislatures, protected by the precedent, might pile up mountains of debt on future generations, resulting in inevitable impoverishment or ruthless repudiation. Marbury v. Madison, 1 Cranch. 137, 2 L. Ed. 60; Mugler v. Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 Sup. Ct. 273; Lochner v. New York, 198 U.S. 45, 49 L. Ed. 937, 25 Sup. Ct. 539; Van Kleeck v. Ramer, 62 Colo. 4, 156 Pac. 1108. While the last case upholds the power of the General Assembly, by declaration, to exempt an act from the provision of the constitutional referendum, it clearly repudiates its power to bring prohibited legislation within its jurisdiction by the same method.
That an emergency, and a grave one, exists, we doubt not. That legislative action to meet it is imperative is equally certain. But that such action is "to defend the state" will not appear until it appears that the state is attacked or threatened. It has been argued, with force and logic, that such attack or threat must be by force of arms, and that argument finds support in the recorded proceedings of our constitutional convention. But accepting the interpretation put on those proceedings by counsel who maintain that position it is still not conclusive, though it has heretofore been indicated, at least, by this court, that the phrase should be so interpreted. In Re Appropriations, 13 Colo. 316, 22 Pac. 464; Parks v. Soldiers' and Sailors' Home, 22 Colo. 86, 43 Pac 542; In Re State Board of Equalization, 24 Colo. 446, 51 Pac. 493. Whatever the fact, we find it unnecessary here and now to determine it. If the attack or threat from which it becomes necessary "to defend the state" be not limited to force, it must at least be one equally grave in its possible consequences, and one requiring equally strenuous measures to meet; otherwise the ordinary processes of legislation will suffice and must be resorted to. Certainly the emergency arising from the unemployment of the comparatively small number of men to whom this proposed act would give work on the highways of the state does not rise to the solemnity of such an attack or threat, and no facts are presented which lead to such a conclusion. Were it otherwise we can not close our eyes to the natural conditions involving such employment. It is now almost January 1, and the very nature of the proposed work forbids that it could be in full swing, employing anything like its full complement of men, before spring. Months must elapse before the alleged defense can become reasonably effective. Meanwhile the present emergency, in its most serious aspects, must probably pass. If there were such a present attack or threat the proposed legislation would be wholly impotent to afford the state any present defense against it. We further observe that our Constitution was adopted in 1876. The men who framed it, and those who adopted it, were not without experience, history tells us, of grave economical and industrial emergencies. These must have been in mind when they so acted, but they gave no permission to the legislature to violate their mandate in emergencies. They gave permission to contract "a debt by a loan in any form" to "defend the state" and most of them had lived through a period when strenuous measures were necessary to defend the state and well knew the meaning of the words they used. In all other cases they forbade the consumption of anticipated revenues of future years and limited their lawmakers to the adoption of usual or unusual taxing measures, or a new allocation of revenue already provided. The present emergency must be so met.
Despite such definite declarations of the United States Supreme Court as are found in Ex parte Milligan, 4 Wallace 2, Boyd v. United States, 116 U.S. 616, 635, 29 L. Ed. 746, 6 Sup. Ct. 524, and similar cases, that ancient heresy, that whatever is deemed necessary by those in authority is lawful, has returned in these days of distress, as justification for so-called emergency legislation, whose unconstitutionality, in times of prosperity, would be conceded. It has been given new life in recent years by such cases as Block v. Hirsh, 256 U.S. 135, 65 L. Ed. 865, 41 Sup. Ct. 458; Marcus Brown Co. v. Feldman, 256 U.S. 170, 65 L. Ed. 877, 41 Sup. Ct. 465, and Levy Leasing Co. v. Siegel, 258 U.S. 242, 66 L. Ed. 595, 42 Sup. Ct. 289. Their influence is here reflected in portions of the arguments before us, as well as in the opinion of the Attorney General given the Senate upholding the constitutionality of the bill. Therein he says: "It is also important to note that said House Bill No. 6 is an emergency measure," and closes with the statement "It is our opinion that House Bill No. 6, if enacted into law, as an emergency measure, would be, in all respects, valid and constitutional." On this point our own conclusions, definitely reached and unequivocally stated, in Walker v. Bedford, 93 Colo. 400, 26 P.2d 1051, should leave no doubt that, in this jurisdiction, the bulwarks erected in former times still stand unshaken. High dikes are built for great floods.
[11, 12] It has been said, in substance, that this bill, by a "broad" construction, may be squared with the Constitution, and that only by a "narrow" construction can it be made repugnant thereto. That position rests upon an erroneous interpretation of those terms, and follows the popular fallacy that all interpretation which upholds legislation is broad and all which overthrows it is narrow. Whether constitution or statute is involved, that interpretation which, brushing aside minor objections and trivial technicalities, effectuates the intent of the act, is a broad interpretation, and that which, regarding such objections and technicalities, fails to do so, is narrow. Here we are called upon to interpret not the bill, but the Constitution. The purpose of the people in adopting the section involved is clear, i. e., to keep the state substantially on a cash basis, to prohibit the pledge of future fixed revenues, to forbid the contracting of debts which must be paid therefrom, and to make certain that one general assembly shall not paralyze the next by devouring the available revenues of both. People v. May, 9 Colo. 80, 10 Pac. 641; Parsons v. People, 32 Colo. 221, 76 Pac. 666. Hence the construction which resorts to technical terms and fine distinctions to frustrate that intent is narrow, and that which imports its common meaning to simple language to effectuate that intent is broad. We must not be frightened by mere words.
Our answers already given to those interrogatories hereinbefore considered make it unnecessary to answer the remainder. They cease to be "important questions" as that term is used in the Constitution. To properly answer them would require "a wholesale exposition of all constitutional provisions relating to a given general subject" (i. e. Revenue). Such an exposition does not fall within the requirements of said section 3 of article VI. In Re Senate Resolution, 9 Colo. 620, 21 Pac. 470. Moreover, the creation of a prohibited debt runs through every important section of the bill in question. With that eliminated nothing of moment remains.
Before concluding this opinion it seems proper, in view of the many past instances as disclosed by our reports of executive and legislative misunderstanding of the scope and purpose of said section 3 of article VI, to say that the present interrogatories, so far as herein answered; the crucial points of the bill involved; the crisis in its passage at which the court's opinion was sought; and the method followed in presenting the problem here; so clearly follow the Constitution as heretofore interpreted, and present the vital questions so fully and fairly, as to supply a model for future proceedings when either House may deem it wise to invoke the provisions of said section 3.
Some comment on the position and labors of counsel in this case seems likewise appropriate. Amici curiae are not volunteers herein, nor do they represent, directly or indirectly, private interests. They were appointed by this court with an eye single to the service they might render the state. While we knew nothing of the views they then held, if any, respecting the validity of the proposed act, we had reason to believe that, if the questions were close, they might not be in accord, and that in any event every important phase of the problem would be ably elucidated by some of them. In this we have not been disappointed. It happens that each has reached the conclusions herein announced, though differing to some extent in their reasoning, and not in harmony on certain of the interrogatories which we have considered it unnecessary to answer. Their time and talents have been contributed without compensation. The Attorney General advises us that the same is true of his special assistants who appear at the request of himself and the Governor, while he and his regular staff have been tireless and thorough in their preparation and presentation. To all these the thanks of court and people are due. While a state is so served her interests are safe.
Interrogatories 1, 2, 3, answered in the affirmative, interrogatory 13 in the negative, and the Bill held unconstitutional.
MR. CHIEF JUSTICE ADAMS, MR. JUSTICE CAMPBELL and MR. JUSTICE HILLIARD concur.
MR. JUSTICE BUTLER, MR. JUSTICE BOUCK and MR. JUSTICE HOLLAND dissent.