Barrows v. Garvey
| Decision Date | 24 May 1948 |
| Docket Number | 5110 |
| Citation | 193 P.2d 913,67 Ariz. 202 |
| Parties | BARROWS v. GARVEY, Secretary of State |
| Court | Arizona Supreme Court |
Original proceedings in mandamus by Earle F. Barrows against Dan E. Garvey, as Secretary of State of the State of Arizona to compel defendant to remove and delete from a notice prepared by him the names of the offices of justice of the peace and constables of the several justice precincts of Maricopa county.
Alternative writ made peremptory.
Snell Wilmer, Walsh & Melczer, of Phoenix, for petitioner.
Evo De Concini, Atty. Gen., Fred O. Wilson, Asst. Atty. Gen., and Edward Jacobson, Asst. Atty. Gen., for respondent.
The Seventeenth Legislature, in regular session assembled, amended Sec. 17-504, A. C.A. 1939, entitled "Precinct officers," by purportedly extending the term of office of Justices of the Peace and Constables from two to four years. Laws 1945, ch. 69, sec. 1. The matter before us raises but one question and that is as to constitutionality and legality of this enactment.
Earle F. Barrows (hereinafter termed petitioner), as a resident citizen, qualified elector and taxpayer of Maricopa County, Arizona, filed a petition for writ of mandamus seeing to compel respondent, Dan E. Garvey, as Secretary of State, to remove and delete from the notice prepared by him (pursuant to the provisions of Sec. 55-1002, A.C.A. 1939) the names of the offices of Justice of the Peace and Constables of the several Justice Precincts of Maricopa County as being offices for which candidates are to be nominated at the primary election to be held September 7, 1948. It is the contention of petitioner that at the general election held in 1946 such officers were elected for a term not expiring until January 1, 1951.
As the matter involved a question of publici juris of importance and general interest requiring a speedy determination we assumed original jurisdiction.
The office of constable was not created by the Constitution, nor is the term thereof prescribed by the Constitution. Since the office of constable is created by statute, the term is wholly within the control of the legislature. Constitution of Arizona; 46 C.J. Sec. 100, p. 964; 43 Am.Jur., Public Officers, Sec. 151. Hence as to the office of constable the amendment of Sec. 17-504, supra, is a valid enactment unless, as contended by respondent, the two offices (justice of peace and constable) are so entwined, with no severability clause, that if the statute be declared invalid as to the justices that portion with reference to the constables must fall with it. This upon the theory that where one part of a statute is held to be of no effect as being unconstitutional, the whole statute will be ineffectual if the remaining sections would make little sense in expressing the intent of the legislature. Sellers v. Frohmiller, 42 Ariz. 239, 24 P.2d 666; Powell v. Gleason, 50 Ariz. 542, 74 P.2d 47, 114 A.L.R. 838; Miners and Merchants Bank v. Board of Supervisors, 55 Ariz. 357, 101 P.2d 461.
The law is of course well-settled that if the term of an officer is prescribed by the constitution the legislature is powerless to change it.
"However, aside from such provisions, the legislature is without power, directly or indirectly, to extend the term of the incumbent of an elective office where the term is fixed by the constitution, where the term is limited by such instrument and the effect of the extension is to exceed the limit of tenure fixed * * *." 43 Am.Jur. Public Officers, Sec. 151. (Emphasis supplied)
As to the other office, a justice of the peace is definitely a constitutional officer.
"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." Constitution of Arizona, Article 6, Section 1. (Emphasis supplied)
It is the contention of the respondent that our Constitution limits the term of office for a justice of the peace to a period of two years. Reliance is had upon:
(a) Art. 7, Sec. 11, appearing under the Article on Suffrage and Elections, which reads:
(Emphasis supplied) and the interpretation placed thereon by this Court in the case of High v. State, 14 Ariz. 429, 130 P. 611, 612, from which we quote:
(Emphasis supplied)
(Apparently this holding was later impliedly approved in the case of Sweeney v. State, 23 Ariz. 435, 204 P. 1025, 1027.)
(b) The holding of the Washington Supreme Court in the early case of McMurray v. Hollis, 5 Wash. 458, 32 P. 293, in interpreting a similar constitutional provision.
The respondent primarily relies upon the statement, heretofore quoted, appearing in the High case to the effect that Art. 7, Sec. 11, Constitution of Arizona, fixes the term of office of justices of the peace at two years. While the petitioner contends, (a) that this statement is dicta as he asserts the decision reached in the case did not depend in any respect upon the construction therein placed upon Art. 7, Sec. 11; (b) that if this pronouncement be considered by us to be authoritative that the same is completely erroneous and should be overruled irrespective of the rule of stare decisis.
Black's Law Dictionary, Third Edition, p. 575, furnishes a good definition of obiter dicta:
"Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of an adjudication."
Let us, therefore, analyze the propositions actually before this Court, and decided by this Court, in the High case. These propositions were:
(1) That by virtue of Art. 22, Sec. 6, Constitution of Arizona, territorial justices of the peace in office at the date of the admission of Arizona into the Union held their offices until their successors qualified;
(2) By virtue of Art. 6, Sec. 9, Constitution of Arizona, the first justices of the peace taking office after statehood were to be elected and could not be appointed;
(3) Under Art. 7, Sec. 11, Constitution of Arizona, there could be no election of justices of the peace after statehood until the general election held in November, 1914;
(4) That, accordingly, territorial justices of the peace would hold their offices until their successors were elected in the general election of 1914 and had qualified.
We next consider the question: Did the decision reached in the case depend in any respect upon the construction therein placed upon Art. 7, Sec. 11? In answer to this question petitioner argues this section of the Constitution relates solely to the time of holding general elections and has nothing to do with terms of office. He says the validity of this proposition is evident from the following:
(a) Where the term of every office created by the Constitution, other than justice of the peace, is specifically fixed and prescribed in the Constitution, it manifests an intention to specifically provide in the Constitution for the terms of the offices created therein, and it is most improbable that the framers of the Constitution left the term of office of the justice of the peace to be deduced from a provision relating to elections.
(b) The construction of provisions of Art. 7, Sec. 11, fixing the date of the election of state and county officers as also fixing the terms of state and county offices is impossible in view of the fact that such terms are specifically fixed by other provisions of the Constitution. If it be contended that the provisions of Art. 7, Sec. 11, fixing the date of the election of precinct officers must be construed to fix the term of justice of the peace, it may be answered by pointing out that the justice of the peace is not necessarily a precinct officer. Art. 6, Sec. 9, of the Constitution provides "the number of justices of the peace to be elected in incorporated cities and towns and in precincts * * * shall be provided by law." (Emphasis supplied)
(c) The Constitution specifically provides four and six year terms for certain state and county offices. If Art. 7, Sec. 11, be construed to have relation to and to fix terms of office, it conflicts with the provisions of the Constitution specifically prescribing terms of office in excess of two years.
(d) That this Court in the case of State v. Osborne, 14 Ariz. 185, 125 P. 884, 892, clearly differentiates between Art. 6, Sec. 9, and Art. 7, Sec. 11, of the Constitution of Arizona, in the following language:
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