Alabam's Freight Co. v. Hunt, Civil 2502

CourtSupreme Court of Arizona
Writing for the CourtLOCKWOOD, J.
Citation242 P. 658,29 Ariz. 419
PartiesALABAM'S FREIGHT COMPANY, a Corporation, Appellant, v. GEORGE W. P. HUNT, Governor of the State of Arizona, VERNON WRIGHT, Treasurer of the State of Arizona, and WAYNE HUBB, Auditor of the State of Arizona, Appellees
Docket NumberCivil 2502
Decision Date07 January 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Affirmed.

Messrs Barnum & Flanigan, for Appellant.

Mr John W. Murphy, Attorney General, Mr. Earl Anderson, Mr Frank J. Duffy and Mr. A. R. Lynch, Assistant Attorneys General, and Mr. H. A. Elliott, for Appellees.



This is an action to test the validity of House Bill No. 227 Session Laws of 1925, generally known as the Workmen's Compensation Act. It was begun by a complaint filed in the superior court of Maricopa county, which raised every possible constitutional point that could be imagined. A demurrer to the complaint was filed and was sustained by the trial court, and, plaintiff electing to stand on the complaint, judgment went against it, and the matter is before us on the record.

There were some twenty-four objections to the act set up in the complaint, but counsel for plaintiff stated frankly on oral argument he was convinced on close examination the large majority of these were trivial, and that he intended to present only those points which he believed possessed merit. In passing, we desire to express our approval of this attitude. It relieves the appellate court of much unnecessary labor, and enables us to devote our whole time to the vital questions, impressed by the belief that, since counsel has been frank and honest enough to abandon the trivial issues, the remaining ones which he does urge are worthy of the most serious consideration.

There remain five specifications of alleged unconstitutionality, which we will consider in the order which seems most advisable. The first is that since, at the time of the passage of the act, the legislature had no power under the Constitution to require an election of remedies in advance of injury, it could not then enact a valid law containing such a provision, which should become effective upon a future amendment of the Constitution permitting it. Counsel admits that the taking effect of a law may be made to depend on a future contingency, but contends that the act must have been constitutional when passed. The case most directly in point is that of State v. Hecker, 109 Or. 520, 221 P. 808. In that state the Constitution had abolished the death penalty in 1914. In the spring of 1920 the legislature ordered submitted to the voters a constitutional amendment reestablishing it, and enacted a law providing for the death penalty and the method of carrying it into effect. This act, under the provisions of the Oregon Constitution became a law on April 17th, but its operative effect was expressly suspended by its terms until the adoption of the constitutional amendment. This last was approved by the people in May, and became part of the Constitution on June 18th. The court, discussing the proposition presented here by plaintiff, said:

"Chapter 20 was enacted for the sole purpose of prescribing a procedure which should be and could be available only upon the amendment of the Constitution. The purpose was to make chapter 20 operative contemporaneously with, but not before the amendment of the Constitution. It is our view that chapter 20 is constitutional; and this view, although opposed by the holding in Etchison Drilling Co. v. Flournoy, 131 La. 442, 59 So. 867, is supported by Pratt v. Allen, 13 Conn. 119; Galveston, B. & C.N.-G.R.W. Co. v. Gross, 47 Tex. 428, 436, and State ex rel. v. Kirkley, 29 Md. 85, 104. See, also, 8 Cyc. 770; 12 C.J. 742."

See, also, Boyd v. Olcott, 102 Or. 327, 202 P. 431.

In Druggan v. Anderson, 269 U.S. 36, 70 L.Ed. 151, 46 S.Ct. 14, the court says:

"Indeed, it would be going far to say that while the fate of the amendment was uncertain Congress could not have passed a law in aid of it, conditioned upon the ratification taking place."

We are of the opinion that the legislature may pass an act to take effect only upon the adoption of a constitutional amendment authorizing it, and that its constitutionality is to be tested by the Constitution as it is at the time the law takes effect, and not as when it was passed.

The next objection is that the emergency clause attached to the bill was void for various reasons, and that the act, therefore, cannot take effect until 90 days after the adoption of the amendment, so as to allow opportunity for a referendum. Article 4, section 1, of the Constitution, reads, in part, as follows:

"(4) . . . All petitions submitted under the power of the referendum shall be known as referendum petitions, and shall be filed with the Secretary of State not more than 90 days after the final adjournment of the session of the Legislature which shall have passed the measure to which the referendum is applied. . . ."

Admitting, without deciding, that the emergency clause was void, the Constitution allows a referendum petition to be filed only within 90 days after the close of the session of the legislature enacting the measure, and not within 90 days after the law becomes effective. The express purpose of the referendum is to suspend or annul a law which has not gone into effect, and not to invalidate one already operative, and, after a law has become effective, no referendum is provided for. On November 3d, when by its terms the act took effect, the period allowed by the Constitution for a referendum had long since passed. There is no merit in this objection.

We next consider the point that executive and judicial powers are united in the commission established by the act, and that there is an unlawful delegation of judicial power to it, contrary to article 3, and article 6, section 1 of the state Constitution. These read, respectively, as follows:

"The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive and the judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others."

"Section 1. The judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such courts inferior to the superior courts as may be provided by law."

That the commission has many and great administrative powers is obvious. It makes classifications of employment for fund purposes, determines hazards, fixes rates of premium, determines dependency. In fact, the whole purpose of its existence is the administration of one of the most important laws of the state.

It is then urged by counsel for plaintiff that we are between the horns of a dilemma. If we hold that the commission is a court within article 6, section 1, it has administrative duties in violation of article 3. If, on the other hand, we decide that it is not a court, it has granted to it many judicial powers, and the law is then obnoxious to article 6, section 1, as vesting judicial powers in a body other than a court.

There can be no doubt that, if such are our only alternatives, the point is well taken. If the commission is a court, or if it has imposed on it powers which can be held only by a court, the act must necessarily be unconstitutional. Let us, however, see if either of these contentions is true.

The best definition of the word "court" which has been given is:

"A tribunal established for the public administration of justice." Butts v. Armor, 164 Pa. 73, 26 L.R.A. 213, 30 A. 357; Dixon v. People, 53 Colo. 527, 127 P. 930.

-- and the public administration of justice has from time immemorial been its sole duty. In the light of this definition let us examine the powers and duties of the commission established by the act. Section 12 thereof contains all the general powers granted, and provides that --

"It shall also be the duty of the commission, and it shall have full power, jurisdiction and authority:

"To administer and enforce all laws for the protection of life, health, safety and welfare of employees. . . .

"To investigate, ascertain and determine such reasonable classification of persons . . . as shall be necessary to carry out the purposes of this act.

" . . . To promote the voluntary arbitration . . . of disputes between employers and employees.

"To establish and conduct free employment agencies. . . .

"To collect . . . statistical and other information relating to employees, employers. . . .

"Upon petition . . . that any place of employment is not safe . . . to make such investigations. . . ."

To hold, in view of the foregoing powers and duties, it was the intent of the legislature to establish a "court," would be the height of absurdity. The act is not obnoxious to article 3 of the Constitution.

But, it is said, conceding that the commission is not a court, it has delegated to it many judicial powers which, under article 6, section 1, can be exercised only by a court. What is judicial power within the meaning of such a constitutional provision? It is not enough to make a function judicial that it requires discretion, deliberation, thought and judgment. As to what is judicial and what is not seems to be better indicated by the nature of the thing than its definition. In State ex rel. Attorney General v. Hawkins, 44 Ohio St. 98, 5 N.E. 228, the court says:

"What is judicial power cannot be brought within ring fence of a definition. It is, undoubtedly, power to hear and determine but this is not peculiar to the judicial office. Many of the acts of...

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