Allen v. State

• Decision Date: 04 April 1913
• Docket Number: Criminal 335
• Citation: 14 Ariz. 458,130 P. 1114
• Parties: WOOD ALLEN, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

130 P. 1114

14 Ariz. 458

WOOD ALLEN, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 335

Supreme Court of Arizona

April 4, 1913

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge. Affirmed.

The facts are stated in the opinion.

Mr. W L. Barnum and Messrs. Frank Cox, Chalmers & Kent, and F. C Struckmeyer, Amici Curiae, for Appellant.

Mr. G P. Bullard, Attorney General, and Mr. Leslie C. Hardy Assistant to the Attorney General, for Respondent.

OPINION

PER CURIAM.

The appellant was tried, convicted, and fined in the superior court of Maricopa county upon the charge of violating the game law, by killing, on December 15, 1912, a quail without first having obtained a hunting license as required by section 21 of chapter 82, Session Laws of Special Session, First Legislature. The appellant demurred to the information for the reason, as he contends, that chapter 82 is not a valid and subsisting law. He admits the fact of killing the quail, but asserts there exists no law making the act a crime.

The session of the legislature at which chapter 82 was passed and approved adjourned June 22, 1912. "But to allow opportunity for referendum petition," it is provided in subdivision 3, section 1, article 4, of the constitution, that "no act passed by the legislature shall be operative for ninety days after the close of the session of the legislature enacting such measure. . . . " Further provisions of the same article of the constitution are that five per centum of the qualified electors who voted for all candidates for governor at the general election last preceding the filing of any referendum petition may order the submission to the people at the polls any measure, or item, section, or part of any measure, enacted by the legislature, by filing such petition with the Secretary of State not more than ninety days after the final adjournment of the session of the legislature which shall have passed the measure to which the referendum is applied. On September 20, 1912, a petition for referendum on chapter 82 was filed with the Secretary of State, which had the effect of referring said measure to a vote of the qualified electors of the state for their approval or rejection at the next regular general election.

The right of the people to pursue this course with reference to chapter 82 is vouchsafed them by subdivision 1, section 1, article 4, of the constitution, which reads as follows: "The legislative authority of the state shall be vested in a legislature, consisting of a Senate and a House of Representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature." In this case the people have undertaken to exercise their option of approval or rejection upon the whole of chapter 82. They filed the required referendum petition with the Secretary of State within the time allowed by law. Having done this, clearly they are entitled to be heard in the proper manner, time, and place. The manner in which they are to be heard is by their votes, the place is at the "polls," and the time is at the "next regular general election." The measure was submitted to the qualified voters of the state at the election held on the first Tuesday after the first Monday in November, 1912. That the people were heard at such election is attested by their votes; 19,455 voters, out of a total registration in the state of 24,907, voted for or against the measure. That the votes of the electors were cast at the "polls" in the manner provided by law is unquestioned. It is obvious that the great desiderata of the constitution in reference to initiated and referred measures were a full expression pro and con of the whole electorate at the proper time, manner, and place.

The constitution, in aid and to facilitate the exercise of the power reserved by the people "for use at their option to approve or reject at the polls any act," named certain officers of the executive department of the state as agencies through and by whom this power was to be directed. One thing only is required of the proponents of a referendum, and that is to file a proper and legal petition with the Secretary of State, and only one thing is permitted or required of the electorate, and that is to vote on the measure at the time of its submission. The duty to file the referendum petition and refer the measure to a vote of the qualified electors is devolved upon the Secretary of State. Const., art. 4. It is made his duty to give the measure the prescribed publicity (subdivision 11, section 1, article 4, constitution, and chapter 71, Session Laws of Arizona, First Special Session of First Legislature), and it is his duty to canvass the votes for and against each measure submitted. In fact, all the details of submitting the measure from the time of filing the referendum petition to the canvassing of the vote thereon are largely in the control and charge of the Secretary of State. The voter cannot direct what he shall do or not do. He can start the election machinery, but cannot direct its operation.

But the appellant objects, first, that the measure, chapter 82, was not submitted at a proper or legal election; and, second, that it was not given the publicity provided in the constitution and the laws, and therefore is null and void. If objections had been made in the early stages of the process of submission for the reasons now assigned, the questions would have been subjects of judicial investigation and determination. Section 3, chapter 71, Session Laws of Special Session of 1912, provides the legal method of testing the sufficiency of initiated and referred petitions, and empowers the courts to enforce or restrain action upon the part of the administrative officers as the merits of the case demand; and this power of the courts may be invoked by any citizen of the state. If the measure, as it is now contended, was to be submitted to the voters at the wrong election, or if, as is now urged, it was impossible to give the measure the publicity required, the courts were open to any citizen, and possessed the power, upon a proper showing, to confine the administrative acts of officers within the law. Timely appeal to the courts upon the questions now raised, if meritorious, would have settled the matter before the election was had. However, the measure was submitted to the voters without question. They were invited to believe that the formalities of the law pertaining to the submission of the measure had been fully met. The expense of the election was incurred, and the electors, imbued with the conviction that they were performing one of the highest functions of citizenship, and not going through a mere hollow form, we may assume, investigated the question and went to the polls and voted thereon.

All the qualified voters of the state being authorized to participate in the rejection or approval of referred laws, it may be conceded to be essential that they give expression to their wishes at a time fixed by the fundamental law, just as it may be conceded that it is a primary requisite to the enactment of laws that there be a legal legislature. In time and place, the members entitled so to do must lawfully convene. So the electors qualified to vote on any measure referred to them must lawfully assemble at the time fixed by law to cast their votes. Subdivision 10, section 1, article 4, constitution, provides that the Secretary of State "shall cause to be printed on the official ballot at the next regular general election the title and number of said measure, together with the words 'Yes' and 'No' in such manner that the electors may express at the polls their approval or disapproval of the measure."

The election at which this measure was submitted was the election provided for by sections 1, 2, and 3, chapter 24, Special Session of 1912. Those sections are as follows:

"Section 1. There shall be a general election of Representatives in Congress, and of state, county, and precinct officers on the first Tuesday after the first Monday in November, 1912, and on the same day of every even numbered year thereafter.

"Sec. 2. Such number of presidential electors as shall equal the number of United States Senators and Representatives in Congress from Arizona shall be elected at an election to be held on the first Tuesday after the first Monday in November, 1912, and quadrennially thereafter.

"Sec. 3. Such elections shall be held under the provisions of the Revised Statutes of Arizona of 1901, and amendments thereto, relating to elections, subject to the provisions thereof."

In State v. Osborne, ante, p. 185 125 P. 884, we held that chapter 24, in so far as it provided for the election of state, county, and precinct officers in 1912, was in conflict with section 11, article 7, of the constitution, but we did not hold wholly incompatible. On the contrary, we expressly held it to be valid legislation, in so far as it provided for an election of Representatives in Congress and presidential electors. In that connection we said: "That act also provides for the election for a Representative in Congress and for presidential electors. But this part of the act is not so inseparably connected in substance with the other parts of the act as to work the destruction of the whole act. Striking out the provision for the election of state, county, and precinct officers, the act is capable of being carried out in accordance with the legislative intent as to the election of...