This is followed by numerous sections, the object of which is to enforce its provisions. By section 28 of the act it was provided: "Act in Force.-This act, and every section thereof, shall become operative and be in full force and effect from and after the first day of January, A. D. 1916. All acts and parts of acts in conflict with this act are hereby repealed, said repeals to become effective from and after January 1st, 1916." On the 18th day of May, 1915, the electors of the city and county of Denver adopted an amendment to the charter of that municipality which is as follows: county. * sioner of finance and ex officio excise commissioner of that municipality, and August Koch, the object of which is to review the proceedings concerning the issuance of a liquor license to Koch. The petition recites the facts above narrated, and also alleges other facts, which, however, it is not necessary to set out, because from the return to the writ, which admits the issuance of a license to Koch to sell intoxicating liquor beyond the 1st day of January, 1916, it is conceded by counsel for respondents, by way of demurrer to the petition and motion to quash the writ, that the petition presents the following questions: First, under article 20, is the sale or prohibition of intoxicating liquors of local and municipal concern only? and, second, does article 22 apply to the whole state, or is it in any sense qualified by article 20? Although counsel on behalf of respondents claim that the ultimate question is (quoting from their brief), "Does article 22 of the Constitution of Colorado [the pro "Section 75a (which, in the 1914 revised edition of the charter, is to be known as 99a). The council shall, by ordinance, provide for the licensing, taxing and regulating of druggists, distillers, brewers, confectioners, grocers, delicatessen venders, clubs, barbers, masseurs, rubbers, athletic associations, and any other persons, associations or corporations, who are now engaged, or who may hereafter engage, in the handling, manufacture, sale, gift, distribution, disposition, transportation, carriage, transfer, and delivery of any intoxicating liquors within the city and Then follows conditions restricting the is-hibition amendment] deny to the city and suance of licenses, and section 76a (which, in the 1914 revised edition of the charter is to be known as 100a) designating the persons by class to whom liquor shall not be sold or given. This is followed by section 81 (being section 105 in the 1914 revised edition) which provides, in substance, that the existing provisions of the charter and the ordinances regulating the issuing of saloon licenses shall continue in force and effect until changed as authorized, and that in no case shall a fee for such license exceed the sum of $600 per annum. On the 19th day of July following, the city council of the city and county of Denver, assuming to act under and by virtue of the above amendment to the charter, passed and approved an ordinance, numbered 76 of the series of 1915, which purported to amend sections 3 and 17 of an ordinance numbered 223, series of 1913, entitled, "An ordinance to license and regulate the sale, barter, and exchange or other disposition for profit or gain, of any malt, vinous or spirituous liquors in quantities of less than one gallon," which amendment provided that the commissioner of finance, acting ex officio as excise commissioner of the city and county of Denver, should grant licenses for the sale of malt, vinous, and spirituous liquors upon conditions therein specified. On the 6th day of July, 1915, the commissioner of finance, acting in his capacity as excise commissioner, issued a license to one August Koch, authorizing him to sell intoxicating liquors at his place of business, 6400 Gilpin street, in the city and county of Denver, for a period extending beyond January 1, 1916. Thereafter the people of the state of Colorado, on the relation of His Excellency, Governor Carlson, and Attorney General Farrar, instituted an original proceeding in certiorari against the city council of the city and county of Denver, and Clair J. Pitcher, commis county of Denver the power to locally prohibit and regulate the liquor traffic theretofore conferred upon them, as we claim, by the amendment to section 6 of article 20 and the charter amendment?" this presents for 66 * * * conflict or inconsistent with the provisions of "Anything in the Constitution of this state in this amendment is hereby declared to be inapplicable to the matters and things by this amendment covered and provided for." On November 5, 1912, section 6 of article 20 was amended (Session Laws of 1913, 669) which, so far as material, as we gather from the brief of counsel for respondents, is as follows: "The people of each city or town in this state, having a population of two thousand inhabitants under the authority of the United States, as determined by the last preceding census taken * are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters. "Such charter and the ordinances made pursuant thereto in such matters shall supersede tion of said city or town any law of the state in within the territorial limits and other jurisdicconflict therewith. ** "From and after the certifying to and filing with the secretary of state of a charter framed and approved in reasonable conformity with the provisions of this article, such city or town, and the citizens thereof, shall have the powers set out in sections 1, 4 and 5 of this article, and all other powers necessary, requisite or proper for the government and administration of its local and municipal matters. * "The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except in so far as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters. All provisions of the charters of the city and county of Denver, * * as heretofore certified to and filed with the secretary of state, ** which provisions are not in conflict with this article, are hereby ratified, affirmed and validated as of their date. • The provisions of this section 6 shall apply to the city and county of Denver." By virtue of article 20, and the amendment above quoted, counsel for respondents contend that because this court decided in Huff son, [332] 6 L. Ed. 606), so that every word em. ployed is to be given its plain and obvious meaning; and it must be assumed that the people, in framing and adopting a constitutional provision, read it with the help of common sense, and it will not be presumed that "It is the intention of this article to grant they intended it should contain a hidden and confirm to the people of all municipalities meaning. 1 Story on the Constitution, § 451. coming within its provisions the full right of In other words, in construing a constitutional self-government in both local and municipal matters and the enumeration herein of certain pow-provision, for the purpose of ascertaining the ers shall not be construed to deny to such cities intent of the people in adopting it, when its and towns, and to the people thereof, any right language is explicit, the courts are bound to or power essential or proper to the full exercise seek for the intention in the words of the proof such right. vision itself, and they are not to suppose or hold that the people intended anything different from what the meaning of the language employed imports. Tested by these plain and simple rules, it is obvious that article 22 was intended to apply to the whole state, and that it means just what its language imports in this respect-nothing more and nothing less. Schwartz v. People, 46 Colo. 239, 104 Pac. 92. It recites that from and after the 1st day of January, 1916, no per* shall, within this state, manufacture for sale or gift any intoxicating liquors; and no person, • * shall import smith v. People, 8 Colo. 175, 6 Pac. 157, 54 Am. into this state any intoxicating liquors for Rep. 550, that the Legislature of Colorado sale or gift; and no person, • shall, had the power and authority to regulate the within this state, sell or keep for sale any liquor traffic, and could delegate this power intoxicating liquors or offer any intoxicating to municipalities, therefore, by article 20, and liquors for sale, barter or trade, the amendment thereto, the people clothed the with the exception that the handling of liqmunicipality of the city and county of Den- uors for medicinal or sacramental purposes ver with full, absolute, and exclusive power may be provided for by statute. By employ. of local self-government, which included the ing the word "state" in each instance, it inright to regulate the liquor traffic within its cludes the entire state, and not a part. If boundaries. It will not be, and is not, claim- it was the intention that the city and county ed that the people, in whom is vested the of Denver should be exempt from its operaexclusive authority to amend the Constitu- tion, words to that effect would have been tion, have not the power to take away from employed. In order to conclude that the city the city and county of Denver the authority and county of Denver is not bound by its proto regulate the liquor traffic within its bound-visions, it would be necessary to read into the aries, even if it be conceded that such au- article apt words, from which it appeared thority was ever conferred upon it. Section 2, art. 2, of the Constitution provides: "That the people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their Constitution and form of government whenever they may deem it necessary to their safety and happiness, Provided, such change be not repugnant to the Constitution of the United States." [1, 2] But counsel for respondents contend that because article 20, and the amendment thereto, constituted a part of the Constitution when the prohibition amendment was proposed and adopted, therefore it was not the intention to thereby deprive the city and county of Denver of its authority under article 20 to regulate the liquor traffic within its territorial limits, because in the prohibition article there is no express and specific provision depriving it of such authority. The intent of a constitutional provision must be determined from its words, and its words are to be understood in the sense they are gener that it was not included, or that the inhibitions, with respect to the liquor traffic, did not apply to it. To do so, when the language is clear and explicit that no person from and after the 1st day of January, 1916, shall manufacture or import, for sale or gift, or from and after that date shall sell, or keep for sale or offer for sale, any intoxicating liquors within this state would be to ignore the plain language of the article and by judicial construction frame and adopt a constitutional provision for the people, instead of construing the one they adopted. Our func tions are judicial, not legislative. When a constitutional provision is expressed in unambiguous terms, when the sense is manifest, there can be no reason not to adopt the sense which it naturally presents. To do otherwise, in order to restrain it, is to elude it. [3] Certain of counsel, amici curiæ, who also contend that article 22 does not apply to self on the subject of intoxicating liquors. There is no provision of the Constitution, nor rule of law, which requires an amendment to refer to, or in express terms repeal, any particular section or article; and, when such amendment unmistakably revises all former provisions on the subject it embraces, and is evidently intended as a substitute for them, although it contains no express words to that effect, it operates as a repeal of the former on the same subject, and particularly is this true when the amendment, as does article 22, by section 2, declares, "All provisions of the Constitution in conflict herewith are hereby repealed." The amendment of a state Constitution is an exertion of the sovereign power of the people to give to their express will the force of a law supreme over every person and everything in the state, so long as it does not conflict with the federal Constitution, and it supplants all other constitutional provisions, laws, and rules inconsistent with it. Gillespie v. Lightfoot, 103 Tex. 359, 127 S. W. 799; People v. Cassiday, 50 Colo. 503, 117 Pac. 357. In construing the effect of an amendment to a constitution it was said in People v. Metz, 193 N. Y. 149, 85 N. E. 1070, 24 L. R. A. (N. S.) 201, and quoted with approval in the Cassiday Case, supra: argument upon somewhat different lines from | article 22. The latter is complete within itthose considered. Their premise is that by article 20, the people of the city and county of Denver were, as to all local and municipal matters, freed from the provisions of the Constitution in force when it was adopted, or coming into force thereafter, in conflict or inconsistent with it, until by constitutional amendment it was otherwise provided, which has not been accomplished by the mode pursued. In support of this proposition, they contend that by article 20, and the amendment thereto, it is established beyond question that the sale or the prohibition of the sale of intoxicating liquors in that municipality is purely a local matter, the absolute control of which was vested in the city and county of Denver, and that, as section 8 of article 20, provides, "Anything in the Constitution of this state in conflict or inconsistent with the provisions of this amendment is hereby declared to be inapplicable to the matters and things by this amendment covered and provided for," which it is claimed refers not merely to the Constitution as it existed when the provision was adopted, but to the Constitution as it exists whenever that provision is read in connection with any future amendment inconsistent with or inapplicable to the grant made by article 20, therefore the people of the state could not take away that authority by a constitutional amendment, except by expressly amending article 20, or expressly declaring that the authority thereby granted was taken away. "In construing a constitution, all its provisions relating directly or indirectly to the same subject must be read together, and any amendment in conflict with prior provisions must control, as it is the latest expression of the people. * * * The presumption is that the people, in exercising their supreme power, did not do a vain act, but effected a definite purpose. before it was amended, which so conflicts with Every provision of the Constitution as it was the amendment that it cannot be fairly harmonized therewith, necessarily yields thereto, but only to the extent necessary to make the amendment reasonably effective." In considering these propositions, it may be conceded, without so deciding, that counsel are correct in assuming that by article 20, and the amendment thereto, the city and county of Denver was vested with authority to control the liquor traffic within its territorial limits, nevertheless, the vital question is, Has it been deprived of that authority by That which is necessarily implied by a the adoption of article 22? That such was constitutional provision is as effective as the intent is manifest from the unequivocal though written therein, and when by article and plain language of that article, although 22 it was declared that the manufacture for it does not specifically refer to article 20, sale or gift or the importation or the keeping and the question to determine, and argued or offering for sale for these purposes of by counsel whose brief we are considering, intoxicating liquors within the state from is, Have the people failed to make their intent and after a specified date, with the exception effective by failing in article 22 to refer to that for named uses the handling of such article 20, or in not adopting the former as liquors might be provided by statute, and an amendment to the latter, or in not ex- expressly repealed all constitutional provipressly declaring in article 22 that its pro- sions in conflict with the article, it is necesvisions repeal all authority conferred upon sarily implied that its inhibitions apply to the municipalities organized under article 20 whole state, and that the article supplants to control the liquor traffic within their bound- every other constitutional provision and aries? Each provision of a Constitution every law in the state, and every municipal should be read in connection with all others, | regulation and charter provision inconsistent irrespective of the date they were adopted, with it, from and after the date it takes but whether an amendment is modified or limited by what precedes depends upon its language, or whether it modifies, changes, or repeals preceding provisions. Thus testing articles 20 and 22, it is clear beyond question that section 8 of article 20 does not apply to effect. Our conclusion is that Denver is not exempt from the provisions of article 22, and hence the license issued to respondent Koch, in so far as it authorizes him to sell liquors on and after January 1, 1916, is a nullity. The official respondents are therefore directed to cancel such license accordingly. (60 Colo. 319) NAPIER v. JOHN V. FARWELL CO. (No. 8311.) (Supreme Court of Colorado. Dec. 6, 1915.) 1. PLEADING 369 ELECTION BETWEEN CAUSES OF ACTION. In an action for the price of goods sold, where the complaint in its second paragraph alleged that, on a running account between October 25, 1906, and December 31, 1910, there was a balance of $792 due plaintiff, and in its fourth paragraph that in November, 1909, the plaintiff agreed to allow defendant full discount on bills for goods sold and to be sold to him, in consideration of which defendant would pay interest at 7 per cent. on all overdue bills, and in paragraph 3 that on September 14, 1893, defendant, in writing, agreed to pay interest at 7 per cent. on bills not paid at maturity, and settled all accounts for goods sold made prior to October 25, 1906, the only cause of action was that set out in the second and fourth paragraphs, the third paragraph having no bearing thereon, so that plaintiff was not required to elect on which cause of action he would proceed. [Ed. Note. For other cases. see Pleading, Cent. Dig. §§ 1199-1209; Dec. Dig. 369.] 2. APPEAL AND ERROR 233-ADMISSION OF EVIDENCE-SCOPE OF OBJECTION. In an action for goods sold, the admission of an agreement, described in a paragraph of the complaint, not bearing on the cause of action, attached to a deposition of a witness for plaintiff taken on written interrogatories 8 and 9, asking witness to state whether defendant, on September 14, 1893, made any written financial statement to plaintiff as a basis of credit. and, if answering the previous interrogatory affirmatively, to attach such written statement to the deposition, might be questioned on objection to interrogatories 8, 10, 12 and 13, and the evidence sought to be introduced thereby, since the court's holding, in overruling the objection that the jury might consider the two agreements, was a determination that they were admissible, so that there was no necessity for further objec tion. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. 233.] 3. SALES 358-ACTION FOR PRICE-EVIDENCE-SUPERSEDED CONTRACT. In such action a superseded contract between the parties was inadmissible. [Ed. Note.-For other cases, see Sales, Cent. Dig. 88 1049-1055; Dec. Dig. 358.] 4. INTEREST 56 COMPUTATION "DIS COUNT. -- In an action for the price of goods sold, where the plaintiff had agreed to allow defendant full discount on bills for goods sold upon defendant's payment of interest on all other duebills, it was improper to compute the interest on overdue bills before the discount was allowed, since a "discount" is an abatement from the face of the account, and the remainder is the actual purchase price of the goods charged in the account, so that a buyer entitled to discounts never owes the face of the bills. [Ed. Note.-For other cases, see Interest, Cent. Dig. §§ 90, 129; Dec. Dig. 56. For other definitions, see Words and Phrases, First and Second Series, Discount.] Suit by the John V. Farwell Company against B. T. Napier. Judgment for plaintiff, and defendant brings error. Reversed. Henry B. Babb, of Denver, for plaintiff in error. Dana & Blount, of Denver, for defendant in error. TELLER, J. The defendant in error brought suit against the plaintiff in error to recover a balance on an account for merchandise sold and delivered. The complaint in the second paragraph alleges that on a running account between October 25, 1906, and December 31, 1910, there was a balance of $791.59 due the plaintiff. In the third paragraph it is alleged that the defendant, on September 14, 1893, in writing, agreed to pay interest at 7 per cent. per annum on all bills not paid at maturity, and— "that defendant fully paid and settled all of said accounts due plaintiff for goods sold to de fendant by plaintiff prior to October 25, 1906“ In the fourth paragraph it is alleged that the parties entered into an agreement in November, 1909, by which plaintiff agreed to allow defendant full discount on bills for goods theretofore sold, and thereafter to be sold, to him, and in consideration thereof the defendant was to pay interest at 7 per cent. per annum on all overdue bills for the goods theretofore sold, and thereafter to be sold, to him. It is further alleged that there was interest due under said agreement, on February 22, 1911, the date of defendant's last payment on account, to the amount $936.39. and that the discounts to which defendant was entitled amounted to $957.70 on said date. On trial to a jury a verdict was returned in favor of the plaintiff for $770.28, and judgment was entered accordingly. That [1] The defendant seasonably moved for an order, compelling the plaintiff to elect on which one of the three causes of action in the so-called "first cause of action" it would proceed, which motion was denied. ruling is assigned as error. The amount claimed, and recovered, consists of the bal ance on account set out in the second paragraph, less the amount of the excess of the discounts allowed over the interest charged. in accordance with the agreement alleged in the fourth paragraph. The second and fourth paragraphs together set out a cause of a tion. The purpose of the third paragraph is not apparent. It has no bearing upon the cause of action as alleged in the other paragraphs. It does not allege any facts constituting a cause of action; and, since there is but one cause of action set out in the complaint, there was no error in overruling the motion to require plaintiff to elect. [2, 3] It is also urged that the trial court erred in admitting in evidence the agreement of September 14, 1893, described in paragraph Error to District Court, City and County 3, by which plaintiff agreed to pay interest of Denver; Geo. W. Allen, Judge. on overdue bills. That agreement was at tached to a deposition of a witness for plain- | due. Interrogatory 9 was not a question, but tiff, taken on written interrogatories. De-a direction to the deponent to attach the infendant's counsel filed objections to inter- strument as an exhibit, and such a direction rogatories 8, 10, 11, 12, and 13, "and the is frequently included in a question concernevidence sought to be adduced thereby," on ing a written instrument. The question as the ground such evidence was immaterial, to the materiality and relevancy of the paper irrelevant, and incompetent, and, further, was in fact determined when the objection because it was alleged in the complaint that was overruled, since there could be no ground full payment had been made for all goods for evidence of the existence of the instrusold prior to October 25, 1906, and that a ment, in this case, unless it was to be used new contract had been entered into in No- as evidence. The court, in overruling the vember, 1909. The objection was overruled, | objection, held that the jury should be allowand exception taken. Interrogatories 8 and ed to consider the two agreements and deter9 were as follows: mine their status. This was a determination that the paper was admissible, and there was, after this ruling, no reason for the defendant's making further objection to the admission of the statement. We are of the opinion that the assignment of error on that ruling is well taken. "8. You may state whether or not defendant, on or about September 14, 1893, made any written financial statement to plaintiff as a basis of credit. "9. If you have answered the last interrogatory in the affirmative, you may attach such written statement to your deposition, marked as 'Exhibit A.'" The other interrogatories covered by the objection referred to the effect of the state ment and the promises therein on the extension of credit. Defendant in error contends that the action of the court in admitting the paper in evidence cannot be questioned here, because the objection did not cover interrogatory 9, and because, further, when Exhibit A was formally offered in evidence, no objection was made. The contract alleged in paragraph 4 to have been made in November, 1909, appears by the record to have been oral, and was clearly a new agreement, which superseded the agree ment of 1893. There is a conflict of evidence as to the rate of interest to be paid under this agreement, the defendant in error claiming it was 7 per cent., and the plaintiff in error that it was but 6 per cent., and that was to be on the principal of notes which he was to send for balances due from time to time. It is evident, therefore, that the old written agreement to pay 7 per cent. on balances due may have had considerable weight with the jury in determining this controverted question. The old contract, having been superseded, was not admissible, if proper objection was made to it. The objection to the interrogatories included the evidence sought to be adduced by them, and interrogatory 8 sought to show the fact that a statement had been made in 1893 to pay interest on balances | [4] It is further contended that there was an improper method adopted in ascertaining the amount due plaintiff under the agreement of November, 1909, in that the interest was computed on overdue bills before the discount was allowed. From the testimony of McCarthy, bookkeeper for de fendant in error, it appears that the amount due was thus computed. Counsel for defendant in error insist that it is immaterial whether the interest be computed on the face of the bills, and the discount deducted from the amount, or the discount be deducted before the interest is computed. This clearly is not the case. Discount is an abatement from the face of the account, and the remainder is the actual purchase price of the goods charged in the account. A purchaser entitled to discounts never owes the face of the bills. To compute the interest on the account before discount is to charge interest on a part of the account which it has been agreed the purchaser is not to pay, and hence never owed. His debt is the net of the bills after the agreed discount has been deducted, and upon that alone is he to be charged interest under the agreement in question. For this error in the method of determining the balance due plaintiff, if anything was due, and the further error in admitting in evidence Exhibit A, the judgment is reversed. GABBERT, C. J., and HILL, J., concur. |