Collins v. Krucker, Civil 4283

• Citation: 56 Ariz. 6,104 P.2d 176
• Decision Date: 08 July 1940
• Docket Number: Civil 4283
• Parties: THOMAS H. COLLINS and J. B. MEAD, as Members, and R. H. MARTIN, as Chairman, of the Board of Supervisors of Pima County, Appellants, v. HERBERT F. KRUCKER and RICHARD H. CHAMBERS, Appellees
• Court: Supreme Court of Arizona

104 P.2d 176

56 Ariz. 6

THOMAS H. COLLINS and J. B. MEAD, as Members, and R. H. MARTIN, as Chairman, of the Board of Supervisors of Pima County, Appellants, v. HERBERT F. KRUCKER and RICHARD H. CHAMBERS, Appellees

Civil No. 4283

Supreme Court of Arizona

July 8, 1940

APPEAL from a judgment of the Superior Court of the County of Pima. Levi S. Udall, Judge. Judgment reversed and case remanded with instructions.

Mr. J Mercer Johnson, County Attorney, and Mr. Odin B. Dodd, Chief Deputy County Attorney, for Appellants.

Mr Herbert F. Krucker and Mr. Richard H. Chambers, Appellees in Propria Persona.

OPINION

LOCKWOOD, J.

This is an action in mandamus against the board of supervisors of Pima county to compel it to petition the Governor to appoint a second judge of the superior court for that county. The facts necessary to a determination of this case are not in dispute, and may be stated as follows:

Pima county has a population, according to the last federal census, of something over 70,000, and there is but one judge of the superior court in that county. The work is so heavy that he cannot alone properly care for it, and a large number of the members of the bar at Pima county requested the board of supervisors to petition the Governor to appoint a second judge. The board replied, stating in substance, that there was too much work for one judge to handle properly, but that it was of the opinion the situation could be best met by calling in judges from smaller counties to assist the resident judge, rather than by requesting that a second judge be appointed. Its reasons for this were that there were a number of judges of the smaller counties who had expressed their willingness to come to Pima county to assist in caring for the work, if they were given reasonable notice when their services would be required, and that the cost of such procedure would be far less than the cost to the taxpayers necessarily incurred by the creation of a second division of the Pima county superior court. The board further stated that if, after a trial of this system, it still appeared that the work of the superior court could not be handled properly, it would be glad to consult again with the bar of Pima county in regard to the matter. A petition for a writ of mandamus to compel the board to request the Governor to make the appointment was thereafter filed in the superior court and the writ issued, whereupon the question was brought before us for review.

The whole matter turns upon the meaning of certain constitutional and statutory provisions. Section 5 of article VI of the Constitution, so far as material, reads as follows:

" There shall be in each of the organized counties of the State a superior court, for which at least one judge shall be elected by the qualified electors of the county at the general election; Provided, that for each county having a census enumeration greater than thirty thousand inhabitants, one judge of the superior court for every additional thirty thousand inhabitants, or majority fraction thereof, may be provided by law...." (Italics ours.)

It is apparent from this that the question as to whether the various counties shall have more than one judge of the superior court, when the census population exceeds 45,000, depends upon the will of the legislature, for the phrase "may be provided by law," with no other qualification, is invariably held to refer to action by that body. We must, therefore, determine what it has decided upon this subject. This can only be determined by an examination of the various acts adopted from time to time governing the situation. The first legislation upon this subject was paragraph 336 of the Revised Civil Code of 1913, which reads:

"In each of the counties of this state there shall be a superior court for which one judge shall be elected by the qualified electors of the county."

This was an explicit declaration by the legislature that at that time it thought only one judge was necessary in each county, and no method was provided whereby a second judge could be given to a county, even though its census population exceeded 45,000.

In 1915 the legislature came to the conclusion that under some circumstances a second judge was necessary, and in chapter 3 of the second special session of that year paragraph 336, supra, was amended to read as follows:

"In each of the counties of this state there shall be a superior court for which one judge shall be elected by the qualified electors of the county, provided, that for each county having a census enumeration greater than thirty thousand (30,000) inhabitants there shall be an additional judge of the superior court, for every additional thirty thousand (30,000) inhabitants or majority fraction thereof." (Italics ours.)

This was a mandatory enactment that there should be an additional judge of the superior court whenever the census population reached a certain figure, regardless of any other conditions. Nothing was said as to the approval or the request of anyone being a condition precedent to the appointment of a second judge. It was, therefore, the duty of the Governor to appoint a second judge for any county when it reached the requisite population. A second judge was appointed for Cochise and for Maricopa counties under this amendment.

In 1921 chapter 61, regular session, the law was again amended to read, so far as material, as follows:

"336. In each of the counties of this State there shall be a superior court for which at least one judge shall be elected by the qualified electors of the county; provided, that for each county having a census enumeration greater than thirty thousand (30,000) inhabitants there may be an additional judge of the superior court, for every additional thirty thousand (30,000) inhabitants or majority fraction thereof.

"In each county of this state having a census enumeration greater than thirty thousand (30,000) inhabitants and upon petition by the Board of Supervisors of such county to the Governor, and upon the approval thereof by the Governor there shall be and there is hereby created and established an additional division of the superior court for every additional thirty thousand (30,000) inhabitants, or majority fraction thereof, and any such county shall be held to be entitled to one additional superior judge for each additional...