Barth v. White

• Court: Arizona Supreme Court
• Writing for the Court: LOCKWOOD, J.
• Citation: Barth v. White, 40 Ariz. 548, 14 P.2d 743 (Ariz. 1932)
• Decision Date: 03 October 1932
• Docket Number: Civil 3263
• Parties: ISAAC BARTH, Appellant, v. SCOTT WHITE, Secretary of State of the State of Arizona, Appellee

14 P.2d 743

40 Ariz. 548

ISAAC BARTH, Appellant, v. SCOTT WHITE, Secretary of State of the State of Arizona, Appellee

Civil No. 3263

Supreme Court of Arizona

October 3, 1932

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Mr Isaac Barth, for Appellant.

Mr. K Berry Peterson, Attorney General, and J. R. McDougall Assistant Attorney General, for Appellee.

Messrs Elliott & Lewis, Amicus Curiae.

OPINION

LOCKWOOD, J.

Isaac Barth, hereinafter called plaintiff, brought suit in the superior court of Maricopa County against Scott White, as Secretary of State of the state of Arizona, hereinafter called defendant, for the purpose of enjoining the latter against placing on the ballot at the general election to be held in November, 1932, a constitutional amendment proposed by the initiative petition of some 22,000 qualified electors of the state of Arizona. defendant demurred to the complaint generally, which demurrer was by the court sustained, and, plaintiff electing to stand on his complaint, the case was ordered dismissed, and an appeal has been taken from such judgment and order of dismissal.

The first point which we have to consider is as to the plaintiff's right to maintain an action of this nature. He claims this is expressly authorized by section 1744, Revised Code of 1928, which reads as follows:

"§ 1744. Mandamus to compel secretary of state to file; injunction to restrain; venue. If the secretary of state shall refuse to accept and file any petition for the initiative or for the referendum or proposal for a constitutional amendment which has been presented within the time prescribed, any citizen may apply, within ten days after such refusal, to the superior court for a writ of mandamus to compel him to do so. If the court find that such petition is legally sufficient, the secretary shall then file it, with a certified copy of the judgment attached thereto, as of the date on which it was originally offered for filing in his office; if any petition filed is not legally sufficient, the court may enjoin the secretary or other officers from certifying or printing on the official ballot for the ensuing election the measure proposed or referred. Such actions shall be advanced on the docket and heard and decided by the court as quickly as possible. Either party may appeal to the supreme court within ten days after judgment. The superior court of Maricopa county shall have jurisdiction in all measures to be submitted to the electors of the state at large; in cases of local and special measures, the superior court of the county, or of one of the counties in which such measures are to be voted upon, shall have jurisdiction."

It is contended by defendant that, while a private citizen may compel by mandamus the placing of an initiated measure on the ballot, the same right is not extended to him when it is a question of keeping one off, and that the Attorney General, acting on behalf of the state itself, is the only person who can maintain the latter action. In support of this contention we are cited to the cases of Friendly v. Olcott, 61 Or. 580, 123 P. 53; State v. Olcott, 62 Or. 277, 125 P. 303; State ex rel. Carson v. Kozer, 126 Or. 641, 270 P. 513.

We have previously held in the case of State v. Osborn, 16 Ariz. 247, 143 P. 117, that our Constitution is similar to the states of Oklahoma and Oregon in so far as initiative provisions are concerned, and the statute existing in Oregon, and covering situations similar to that in the case at bar, at the time of the decisions above quoted, was almost identical in form with section 1744, supra. Such being the case, the Oregon decisions would be extremely persuasive to us in a construction of our statute. They are not, however, necessarily absolutely binding. Kingsbury v. State, 28 Ariz. 86, 235 P. 140; Burnham-Munger Root D.G. Co. v. Strahl, 102 Neb. 142. 166 N.W. 266; Barkley v. Pool, 103 Neb. 629, 173 N.W. 600; Davis Iron Works Co. v. White, 31 Colo. 82, 71 P. 384; Jamison v. Burton, 43 Iowa 282; Com. v. Hartnett, 3 Gray (Mass.) 450.

The Oregon court holds that the remedy by mandamus is available to the citizen, while that by injunction is not, and apparently bases the distinction on the theory that the right to proceed by mandamus is expressly given to the citizen while that by injunction is at most inferential, and that, since the action is political in its nature rather than one involving property in civil rights, the ordinary chancery jurisdiction of the court will not be extended beyond the express terms of the statute.

The Supreme Court of Nebraska in the case of Barkley v. Pool, supra, in construing a local statute which is very similar to the Oregon one, had the same contention made to it, that, since Nebraska had adopted the Oregon statute, it was bound by the construction placed by the Supreme Court of Oregon upon its statute in Friendly v. Olcott, supra. Replying to this contention, the court said:

". . . This court is not irrevocably committed to that rule. In Burnham-Munger Root Dry Goods Co. v. Strahl, 102 Neb. 142, 166 N.W. 266, in discussing this point it is said:

"'This is not a uniform rule and has been departed from for good reasons by this court on several occaions.'

"As pointed out in oral argument and in briefs of counsel, the construction of the Oregon statute was based on the former practice in that state and was not, strictly speaking, an independent construction of the statutory language. On principle and in view of our former holding we decline t adopt the Oregon construction. It may be added that Oregon has preserved the distinction between actions at law and suits in equity, while in this state such distinctions are expressly abolished by statute. We conclude that under the act any citizen may make a 'showing that any petition filed is not legally sufficient' and may invoke the remedy by injunction."

We have said in the case of Allen v. State, 14 Ariz. 458, 130 P. 1114, 44 L.R.A. (N.S.) 468:

"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."

It is true that the statement made therein was not absolutely essential to the decision of the case, which was based specifically on the ground that objections of this nature must be raised before a referendum was adopted by the people and not after. We are nevertheless of the opinion that the rule laid down in the Allen case is correct. We can see no reason why the interest of a citizen may not be as great in preventing an initiative petition not legally sufficient from being submitted to a vote as in compelling that one legally sufficient should be so submitted. The distinction made by the Supreme Court of Oregon is, in our opinion, not in consonance with the general spirit of the initiative and referendum laws, and we therefore hold in accord with the language quoted from the Allen case, supra, that petitioner had the right to maintain the present action.

We then examine the appeal on its merits, and in doing so we can, of course, consider only the issues made by the record before us. The complaint sets up in substance as follows:

"Ii.

"That in the 7th day of July, 1932, there was filed in the office of the Defendant a certain initiative petition which said petition is in letters and figures as follows, to-wit:

"Initiative Measure to be Submitted Directly to the Electors

"Warning

"It is a felony for anyone to sign an initiative or referendum petition with any name other than his own, or knowingly to sign his name more than once and for the same measure, or proposed constitutional amendment, or knowingly to sign such petition when he is not a qualified elector.

"Initiative Petition

"To the Honorable Scott White, Secretary of state for the State of Arizona:

"We the undersigned citizens and qualified electors of the State of Arizona, respectfully demand that the following proposed amendment of the Constitution shall be submitted to the qualified electors of the State of Arizona, for their approval or rejection at the next regular general election, and each for himself says: I have personally signed this petition; I have not signed any other petition for the same measure; I am a qualified elector of the State of Arizona, County of Maricopa and my place of residence (including street and number, if they exist) is correctly written after my name.

"Proposed Amendment to the Constitution of the State of Arizona

"Repealing in its entirety sections 1, 2, and 3, article XXIII of the Constitution of the state of Arizona as amended at the general election of November 3, 1914, and sections 1 and 2 of article XXIV of the Constitution of the state of Arizona as amended at the general election of November 7, 1916, and repealing...