Clements v. Hall

• Decision Date: 11 October 1921
• Docket Number: Civil 1980
• Parties: W. P. CLEMENTS, L. P. MATTHEWS, J. F. BROWN, S. J. NORMAN, GEO. W. BURGESS, F. J. GOODRICH, C. R. PIERCE, F. E. FREEMAN, ED. HEALEY, CRANE CLEMENTS, W. R. PRICE, J. WARREN DAVIDSON, J. G. KEATING, O. J. BAUGHN, M. G. CLEMANS, W. J. DAVIDSON, all of Pinal County, Arizona; RAY B. CREBS, POWELL COSBY, WILLIAM GREGG, GEORGE EBSEN, F. T. WORLEY, L. O. WRIGHT, A. G. SMITH, T. N. CARTER, Jr., and L. E. MATTESON, all of Cochise County, Arizona; THOS. D. MOLLOY; of Yuma County, Arizona; J. R. DEAL, WILBUR TREADWELL, JAS. A. SHEA, L. E. THOMAS, W. H. O'BARR, J. O. PINNICK, FRED A. DIBBLE, all of Maricopa County, Arizona; FRED W. FICKETT, H. E. FARR, J. H. McCLURE and C. H. ODOM, all of Pima County, Arizona; JOHN HENNESSY and WILLIAM BABBITT, of Coconino County, Arizona; C. T. COOLEY, of Navajo County, Arizona, and JOHN H. CANFIELD, of Apache County, Arizona, Plaintiffs, v. ERNEST R. HALL, as Secretary of State of the State of Arizona, Defendant
• Court: Arizona Supreme Court

201 P. 87

23 Ariz. 2

W. P. CLEMENTS, L. P. MATTHEWS, J. F. BROWN, S. J. NORMAN, GEO. W. BURGESS, F. J. GOODRICH, C. R. PIERCE, F. E. FREEMAN, ED. HEALEY, CRANE CLEMENTS, W. R. PRICE, J. WARREN DAVIDSON, J. G. KEATING, O. J. BAUGHN, M. G. CLEMANS, W. J. DAVIDSON, all of Pinal County, Arizona; RAY B. CREBS, POWELL COSBY, WILLIAM GREGG, GEORGE EBSEN, F. T. WORLEY, L. O. WRIGHT, A. G. SMITH, T. N. CARTER, Jr., and L. E. MATTESON, all of Cochise County, Arizona; THOS. D. MOLLOY; of Yuma County, Arizona; J. R. DEAL, WILBUR TREADWELL, JAS. A. SHEA, L. E. THOMAS, W. H. O'BARR, J. O. PINNICK, FRED A. DIBBLE, all of Maricopa County, Arizona; FRED W. FICKETT, H. E. FARR, J. H. McCLURE and C. H. ODOM, all of Pima County, Arizona; JOHN HENNESSY and WILLIAM BABBITT, of Coconino County, Arizona; C. T. COOLEY, of Navajo County, Arizona, and JOHN H. CANFIELD, of Apache County, Arizona, Plaintiffs, v. ERNEST R. HALL, as Secretary of State of the State of Arizona, Defendant

Civil No. 1980

Supreme Court of Arizona

October 11, 1921

PETITION for Mandamus. Original proceedings. Writ denied.

Messrs Alexander & Christy and Mr. E. S. Clark, for Plaintiffs.

Messrs Kibbey, Bennett, Gust & Smith and Mr. Will E. Ryan, for Defendant.

Mr. S H. Kyle, Amicus Curiae.

OPINION

PER CURIAM.

The plaintiffs, as residents, qualified electors, and taxpayers of the state of Arizona, instituted this proceeding against the defendant, Secretary of State, praying that a writ of mandamus issue against said secretary, directing him to submit at a special election called for November 8, 1921, a certain amendment to the Constitution of the state, proposed, as it is alleged, by the two houses of the legislature, in accordance with article 21 of the Constitution. The proposed amendment to the Constitution is published in the Session Laws of Arizona of 1921, as chapter 85, page 185, and reads as follows:

"Chapter 85. (House Bill No. 83.)

"An act proposing to amend the Constitution of the state of Arizona by amending section 5 of article 9 thereof, so as to provide for the issuance of state bonds to promote and assist in the reclamation and irrigation of arable and irrigable lands within the state of Arizona and providing for the submission of said proposed amendment to the electors of the state for their approval or rejection at an election to be called for such purpose.

"Be it enacted by the Legislature of the State of Arizona:

"Section 1. That it is proposed to amend section 5 of article 9 of the Constitution of the state of Arizona to read as follows:

"Section 5. The state may contract debts to supply the casual deficits or failures in revenues, or to meet expenses not otherwise provided for; but the aggregate amount of such debts direct and contingent, whether contracted by virtue of one or more laws, or at different periods of time, shall never exceed the sum of three hundred and fifty thousand ($350,000.00) dollars, except as hereinafter provided; and the money arising from the creation of such debts shall be applied to the purpose for which it was obtained or to repay the debts so contracted, and to no other purpose.

"In addition to the above limited power to contract debts, the state may borrow money to repel invasion, suppress insurrection, or defend the state in time of war; but the money thus raised shall be applied exclusively to the object for which the loan shall have been authorized or the payment of the debt thereby created. No money shall be paid out of the state treasury, except in the manner provided by law.

"In addition to the above limited power to contract debts, the state may loan its credit to promote and assist in the reclamation of arable and irrigable lands within the state lying within the confines of irrigation districts regularly organized and existing under the laws of the state of Arizona and for such purpose may create bonded indebtedness and issue its bonds as may be provided by law whenever the lands in any such irrigation district and the water supply therefor and the proposed irrigation works and system thereof have been thoroughly investigated and found to be adequate and sufficient and the cost thereof per acre reasonable, and the building of the whole project feasible and advantageous to the state, and when adequate provision has been made by such irrigation district for the payment of such state bonds, interest and principal, as and when the installments of interest and principal thereof shall and may become due and payable.

"Section 2. It is hereby further provided that the state shall not be responsible or liable for more than five per cent (5%) of the state's total taxable valuation; and it is hereby further provided that the state shall not be responsible or liable for more than one and one-half per cent (1 1/2% of the state's total taxable valuation for any one project.

"Section 3. The validity of this amendment shall not be affected by the adoption of any other amendment to the said section 5 of article 9 of the Constitution of Arizona proposed or submitted by the regular session of the Fifth Legislature of the state of Arizona, and the adoption of this amendment shall not invalidate any other amendment to the said section 5 of article 9 of the Constitution of the state of Arizona proposed or submitted by the regular session of the Fifth Legislature of the state of Arizona.

"Section 4. That said proposed amendment shall be submitted to the electors of the state of Arizona for their approval or rejection at a special election which is hereby called for such purpose to be held in manner provided by law, for general elections, on the 8th day of November, 1921.

"Passed the House March 2, 1921.

"Passed the Senate March 10,1921.

"House concurred March 10, 1921, in Senate amendments by unanimous vote.

"Approved March 14, 1921."

When the plaintiffs' petition was filed the court directed the issuance of an alternative writ to the Secretary of State, and upon the return day he filed his answer in which he set forth:

(I) That the proposed constitutional amendment was not entered upon the journals of the two houses in compliance with the terms of the Constitution; (ii) that the special election was not legal, because no adequate provision is made therefor, and the attempt to adopt the general election law by reference is in violation of the Constitution; and, (iii) that a referendum petition had been filed against section 4, legal in form, and containing the constitutional percentage of voters, and thereby his power to submit said proposed amendment to the special election was suspended.

The plaintiffs filed their motion to strike the defendant's answer because it was to the petition, and not the writ. They also demurred generally to the answer. The case was argued on the 3d and 4th of the month, and counsel for both sides filed with the court informal statements of their points, and cited us to the authorities upon which they rely. It is evident that they have not had at their disposal the time necessary to investigate a question of such moment, and it is likewise true that the tardiness of instituting the proceeding deprives us of the opportunity to make very much independent investigation. In the limited time we have we can do very little more than give our conclusions.

The authority to propose amendments to the Constitution is found in section 1, article 21, of that instrument, and as much of what we shall say revolves around that section, it is here set out:

"Section 1. Any amendment or amendments to this Constitution may be proposed in either house of the Legislature, or by initiative petition signed by a number of qualified electors equal to fifteen per centum of the total number of votes for all candidates for Governor at the last preceding general election.

"Any proposed amendment or amendments which shall be introduced in either house of the Legislature, and which shall be approved by a majority of the members elected to each of the two houses, shall be entered on the journal of each house, together with the ayes and nays thereon.

"When any proposed amendment or amendments shall be thus passed by a majority of each house of the Legislature and entered on the respective journals thereof, or when any elector or electors shall file with the Secretary of State any proposed amendment or amendments together with a petition therefor signed by a number of electors equal to fifteen per centum of the total number of votes for all candidates for Governor in the last preceding general election, the Secretary of State shall submit such proposed amendment or amendments to the vote of the people at the next general election (except when the Legislature shall call a special election for the purpose of having said proposed amendment or amendments voted upon, in which case the Secretary of State shall submit such proposed amendment or amendments to the qualified electors at said [special] election), and if a majority of the qualified electors voting thereon shall approve and ratify such proposed amendment or amendments in said regular or special election such amendment or amendments shall become a part of this Constitution. Until a method of publicity is otherwise provided by law the Secretary of State shall have such proposed amendment or amendments published for a period of at least ninety days previous to the date of said election in at least one newspaper in every county of the state in which a newspaper shall be published, in such manner as may be prescribed by law. If more than one proposed amendment shall be submitted at any election, such proposed amendments shall be submitted in such manner that the electors may vote for or against such proposed amendments separately."

We think the courts all concur...