Direct Sellers Ass'n v. McBrayer

• Decision Date: 18 January 1972
• Docket Number: No. 1,CA-CIV,1
• Citation: 16 Ariz.App. 231,492 P.2d 727
• Parties: DIRECT SELLERS ASSOCIATION of Arizona, and Frank Hoeschler, Appellants, v. Arthur McBRAYER et al., Appellees. 1550.
• Court: Arizona Court of Appeals

Page 727

492 P.2d 727

16 Ariz.App. 231

DIRECT SELLERS ASSOCIATION of Arizona, and Frank Hoeschler, Appellants, v. Arthur McBRAYER et al., Appellees.

No. 1 CA-CIV 1550.

Court of Appeals of Arizona, Division 1, Department B.

Jan. 18, 1972.

Rehearing Denied Feb. 28, 1972.

Hughes, Hughes & Conlan by John C. Hughes, Pheonix, for appellants.

Estrada & Estrada, Phoenix, for appellee McBrayer.

Maricopa County Legal Aid Society by Jerry Levine, Tempe, for appellee Maricopa County Legal Aid Society.

JACOBSON, Judge.

This appeal calls into question the constitutionality of the legislative enactments dealing with initiative and referendum measures and the further question of when is 'the next general election' at which voters may be allowed to exercise their franchise on initiative and referendum measures.

The time factors set forth in the following recitation of facts are of importance. During the second regular session of the 29th legislature ¹, the legislature passed and the governor signed House Bill 102 (A.R.S. § 44--5001 et seq.), regulating the direct selling of merchandise to the public in their homes. This legislation, which carried no emergency clause, would have become effective ninety days following adjournment of the legislative session ²--i.e., on August 11, 1970. On August 10, 1970, through the efforts of appellant, Direct Sellers Association of Arizona ³, petitions purportedly containing 30,000 signatures were filed in the office of the Secretary of State seeking to have House Bill 102 placed on the ballot by way of referendum.

On September 11, 1970, appellees, Arthur McBrayer and Maricopa County, Legal Aid Society, filed a special action in Maricopa County Superior Court seeking to declare null and void the petitions filed by appellants because of an alleged failure to comply with the circulators' statutory affidavit forms and to enjoin the appellee, Wesley Bolin, Secretary of State, from placing the referendum measure on the ballot. On the same date on order to show cause was issued, and directed to the Secretary of State requiring him to appear before the Superior Court on September 17, 1970 and to show cause why the relief prayed for in the special action should not be granted. Although it is apparent that appellees were aware of the efforts of appellants in obtaining these signatures, they were not joined as real parties in interest to the special action. After the Secretary of State had been served in the special action, the Attorney General's office forwarded a copy thereof to appellants.

On the date set for hearing, appellants filed with the trial court a motion to intervene, a proposed answer in intervention, and a crossclaim, seeking to enjoin the Secretary of State from placing the referendum measures on the ballot for the November 3, 1970 general election. This crossclaim alleged that the statutory time within which to allow arguments pro and con to the measure could not be met and that the time necessary to prepare and distribute the necessary publicity pamphlets could not be complied with before the next general election to be held on November 3, 1970.

On September 17, 1970, the Court convened at 2 p.m. at which time appellants' motion in intervention was granted and its pleadings allowed to be filed. Following arguments on motions to strike, the appellants moved for a continuance and objected to any testimony being taken as they had not had an opportunity to prepare. These motions were denidd. The only evidence presented was the affidavits of the circulators of the petitions. It was stipulated that all the affidavits which were attached to the petitions filed by appellants failed to contain a certification that the circulator was 'a qualified elector of the State of Arizona'. Based upon this failure to comply with the statutory form, the trial court held that the referendum petitions were legally insufficient as a matter of law and enjoined the Secretary of State from placing the referendum measure on the ballot. This appeal followed.

Appellants present the following questions for review:

(1) Is a statutory requirement that a circulator of a referendum petition be a qualified elector valid when the constitutional provisions dealing with initiative and referendum measures do not require such a qualification?

(2) Did the trial court abuse its discretion in denying appellants' motion for a continuance in order to permit them to present evidence that the circulators were in fact qualified electors?

The right of initiative and referendum has been reserved to the people of Arizona by the Arizona Constitution. Article IV, Part 1, § 1 of the Arizona Constitution sets forth the form and the contents of the referendum petition and further provides:

'(9) . . . (E)ach sheet containing petitioners' signatures shall be attached to a full and correct copy of the title and text of the measure so proposed to be initiated or referred to the people, and every sheet of every such petition containing signatures Shall be verified by the affidavit of the person who circulated said sheet or petition, setting forth that each of the names on said sheet was signed in the presence of the affiant and that in the belief of the affiant, each signer was a qualified elector of the State, or in the case of a city, town, or county measure, of the city, town, or county affected by the measure so proposed to be initiated or referred to the people.' (Emphasis added.)

This section of the Constitution by its own terms is made self executing (Article IV, Part 1, § 1(15), Arizona Constitution).

In 1953, the legislature enacted various changes in the form wording of the initiative and referendum petition and added the provision that:

'* * * no person other than a qualified elector, shall circulate an initiative or referendum petition and all signatures verified by any such person shall be void and shall not be counted in determining the legal sufficiency of the petition.' A.R.S. § 19--114.

In conformity with this statutory pronouncement, the statutory form of the affidavit of the circulator of initiative and referendum petition was changed to read: 'I, _ _, A qualified elector of the State of Arizona, being first duly sworn, say: . . .' A.R.S. § 19--112, subsec. C. (Emphasis added.)

It is the foregoing italicized language that was missing from the affidavits of the circulators of the referendum petitions involved in this action.

Appellants contend that since the qualification 'a qualified elector of the State of Arizona' is not required by the Arizona constitutional provisions dealing with the initiative and referendum process and since these constitutional provisions are self executing, the legislature may not add a requirement that is not contained in the constitution itself. With this contention, we do not agree. Merely because a constitutional provision is by its terms 'self-executing' does not mean that the legislature is forever barred from legislating on the subject, provided that such legislation does not unduly restrict or hinder the constitutional provision and the legislation reasonably supplements the constitutional purpose. Roberts v. Spray, 71 Ariz. 60, 223 P.2d 808 (1950); Fry v. Mayor and City Council of Sierra Vista, 11 Ariz.App. 490, 466 P.2d 41 (1970).

It thus becomes the duty of the court to determine whether the additional legislative requirement that circulators of petitions be qualified electors unduly hinders or restricts or is supplemental to the constitutional purpose. The purpose of the constitutional provisions dealing with initiative and referendum was aptly captured in the opinion in Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (1942) (overruled in part by Renck v. Superior Court, 66 Ariz. 320, 187 P.2d 656 (1947):

'The history of our Constitution and its adoption, to which we have previously referred, shows beyond the possibility of contradiction that the people themselves deliberately and intentionally announced that, by its adoption, they meant to exercise their supreme sovereign power directly to a far greater extent than had been done in the past, and that the legislative authority, acting in a representative capacity only, was in all respects intended to be subordinate to direct action by the people.' 59 Ariz. at 220, 125 P.2d at 450.

As previously indicated, the present statutory language requiring that a circulator of petitions be a qualified elector was added in 1953. It is clear that at that time, the legislature was of the opinion that the purpose of the initiative and referendum process as expressed in Whitman had been corrupted, as is indicated in the Declaration of Purpose of this House Bill:

'In recent years small pressure groups, taking advantage of the substantial increase in the size of the electorate and the resultant great numbers of uninformed signes of initiative and referendum petitions, have attempted, through fraudulent and corrupt practices in connection with the circulation of petitions, to appropriate this fundamental right of the people to their own selfish purposes. These abuses have tended to bring the initiative and referendum processes into disrepute. It is the sense of this legislature that in order to prevent the recurrence of such abuses and to safeguard to the people their right of initiative and referendum in its original concept, legislation should be enacted further implementing the provisions of the Constitution governing the exercise of that right.' Ch. 82, (1953) Ariz.Sess.Laws, p. 155.

While such a Declaration of Purpose appearing as a preamble to legislation is not controlling on the courts, it is persuasive when considering whether a legislative enactment is in harmony with the spirit of the constitutional provision. We do not feel it could be seriously disputed that under the constitutional provisions under consideration that the legislature could require that circulators be of an age consistent with reason and understanding. Li...