City of Phoenix v. Superior Court In and For Maricopa County

• Decision Date: 17 October 1966
• Docket Number: No. 8857,8857
• Citation: 101 Ariz. 265,419 P.2d 49
• Parties: The CITY OF PHOENIX, Milton H. Graham, Frank G. Benites, Jarrett S. Jarvis, Sophia Kruglick, John F. Long, Frank P. Middleton and Morrison F. Warren, as Members of and Constituting the Council of the City of Phoenix, Maricopa County, Arizona, County of Maricopa, Arizona, L. Alton Riggs, William S. Andrews and B. W. Burns, as Members of and Constituting the Board of Supervisors of Maricopa County, Arizona, Petitioners, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Yale McFate, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Wesley Bolin, Secretary of State, State of Arizona, Real Party in Interest, and Aubrey L. Moore, Real Party in Interest, Respondents.
• Court: Arizona Supreme Court

Page 49

419 P.2d 49

101 Ariz. 265

The CITY OF PHOENIX, Milton H. Graham, Frank G. Benites, Jarrett S. Jarvis, Sophia Kruglick, John F. Long, Frank P. Middleton and Morrison F. Warren, as Members of and Constituting the Council of the City of Phoenix, Maricopa County, Arizona, County of Maricopa, Arizona, L. Alton Riggs, William S. Andrews and B. W. Burns, as Members of and Constituting the Board of Supervisors of Maricopa County, Arizona, Petitioners, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Yale McFate, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Wesley Bolin, Secretary of State, State of Arizona, Real Party in Interest, and Aubrey L. Moore, Real Party in Interest, Respondents.

No. 8857.

Supreme Court of Arizona, In Banc.

Oct. 17, 1966.

Robert J. Backstein, City Atty., Barry Leverant, Asst. City Atty., Phoenix, for petitioners, City of Phoenix, Milton H. Graham, Frank G. Benites, Jarrett S. Jarvis, Sophia Kruglick, John F. Long, Frank P. Middleton and Morrison F. Warren, as Members of and Constituting the Council of the City of Phoenix.

Robert K. Corbin, Maricopa County Atty., Henry Florence, Deputy County Atty., Z. Simpson Cox, Special Counsel, Phoenix, for petitioners, County of Maricopa J. Alton Riggs, William S. Andrews and B. W. Burns, as Members of and Constituting the Board of Supervisors of Maricopa County.

Darrell F. Smith, Atty. Gen., Jarril F. Kaplan, Special Counsel, Phoenix, for respondents, Superior Court of Arizona, Maricopa County and Yale McFate, Judge thereof, and Wesley Bolin, Secretary of State of Arizona, Real Party in Interest.

Theodore Matz, Phoenix, for respondent, Aubrey L. Moore, Real Party in Interest.

STRUCKMEYER, Chief Justice.

This is an original proceeding in certiorari in which the City of Phoenix and Maricopa County seek to nullify an order of the superior court prohibiting petitioners from holding concurrent elections in the same polling places in the general election to be held on November 8, 1966. On October 11, 1966, after an informal hearing, we accepted jurisdiction, being of the opinion that the matter was of great public concern and that there was no plain, speedy and adequate remedy by appeal.

Wesley Bolin, respondent herein as Secretary of State, originally brought suit in the Superior Court of Maricopa County, asking for a declaration that the election violated the Arizona Constitution, Article 7, § 12, A.R.S., and certain Arizona statutes, and for an injunction. On October 3, 1966, the superior court held that the concurrence of a special election of the City of Phoenix at the same time and in the same polling places to be used in the statewide general election was improper and unlawful. It prohibited both the Board of Supervisors of Maricopa County, Arizona, and the Phoenix City Council from holding such an election.

The Constitution of Arizona requires that,

'There shall be enacted registration and other laws to secure the purity of elections and guard against abuses of the elective franchise.' Art. 7, § 12.

Pursuant thereto, the first legislature of the State of Arizona, in 1912, readopted from the territorial statutes of 1901 what is now § 16--862, A.R.S.:

'A. The board of supervisors shall furnish with the ballots for each polling place, three notices, printed on muslin in letters not less than two inches high, reading: 'Fifty-foot limit' and underneath that heading the following:

"No person shall be allowed to remain inside these limits while the polls are open, except for the purpose of voting, and except the election officials, one representative of each political organization represented on the ballot, appointed by the chairman of the local committee of such political organization, and the challengers allowed by law. Voters having cast their ballots shall at once retire without the fifty-foot limit. A person violating any provision of this notice is guilty of a misdemeanor.'

'B. Before opening the polls, the election marshall shall post three fifty-foot limit notices approximately fifty feet, in different directions, from the entrance of the place in which the election is being held.

'C. Any person violating any provision of the fifty-foot limit notice is guilty of a misdemeanor.' Laws of 1962, as amended, Ch. 43, § 1.

The statute is, of course, designed 'to prevent interference with the efficient handling of the voters by the election board and to prevent delay or intimidation of voters * * *.' State v. Robles, 88 Ariz. 253, 355 P.2d 895.

It is petitioners' position that the statute does not expressly forbid the holding of concurrent elections, that there are no sound reasons why such a provision should be impliedly read into the statute, and that there are good and sufficient reasons for holding the election in the manner proposed. It is urged that the holding of the concurrent election as contemplated will effect substantial savings, thereby reducing the cost to the taxpayer; that it will encourage more people to vote in both elections, since those having a particular interest in either will have the ready opportunity to vote in the other; and that it is an accommodation to the electorate in general to be able to vote simultaneously in both elections.

Respondents urge that since A.R.S. § 16--862 is applicable to state elections, specifying exactly who may remain within fifty feet of the polling place, the election personnel of the City of Phoenix are by necessary implication excluded.

It is the well settled law of this state that in construing a statute the spirit of the enactment must be considered and, if possible, the statute will be construed consistent therewith. Courts are not controlled by the literal meaning of the language used. The spirit of the law prevails, even though possibly not its exact letter. State ex rel. Industrial Commission v. Pressley, 74 Ariz. 412, 250 P.2d 992; Carr v. Frohmiller, 47 Ariz. 430, 56 P.2d 644. We said, for example, in Carr v. Frohmiller:

'The court is often not controlled by the literal language of the statute, but by its meaning when properly interpreted, though outside of such literal meaning.' 47 Ariz., at 438, 56 P.2d, at 647.

If the language of the statute is taken literally that no person shall be allowed inside the fifty-foot limits except those persons named, then many absurdities result. In the event of a disturbance, police officers would not be permitted within the polling place or the specified fifty-foot limit. The same could be said if a fire occurred, and in case of illness or catastrophe doctors and others would not be permitted to enter the polling places. No food, drink or messages could be delivered to election board members without violating the statute. Other absurdities can be readily called to mind. If proper construction of the statute requires such absurdities, then we would have to agree with Mr. Bumble, in 'Oliver Twist', when he said: 'If the law says that; the law is an ass.'

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