High v. State

• Decision Date: 12 March 1913
• Docket Number: Civil 1302
• Citation: 130 P. 611,14 Ariz. 429
• Parties: M. C. HIGH, Appellant, v. STATE OF ARIZONA, on the Complaint of W. G. GILMORE, Appellee
• Court: Arizona Supreme Court

130 P. 611

14 Ariz. 429

M. C. HIGH, Appellant, v. STATE OF ARIZONA, on the Complaint of W. G. GILMORE, Appellee

Civil No. 1302

Supreme Court of Arizona

March 12, 1913

APPEAL from a judgment of the Superior Court of the County of Cochise. Fred Sutter, Judge. Reversed.

The facts are stated in the opinion.

Mr. J W. Ross, Mr. W. B. Cleary and Messrs. Alexander & Christy Amici Curiae, for Appellant.

Mr. W G. Gilmore, County Attorney, and Mr. Alexander Murry, Deputy County Attorney, for Appellee.

OPINION

ROSS, J.

This is an action in the nature of a writ of quo warranto instituted, on the relation of W. G. Gilmore, county attorney for Cochise county, against appellant, M. C. High. It is alleged that High was elected, at the regular November, 1908, election, justice of the peace of precinct No. 2 of Cochise county for the term of two years from January 1, 1909; that he qualified as such justice of the peace, and performed the duties thereof until January 1, 1913; that on September 3, 1912, the board of supervisors of Cochise county redistricted said county into justice precincts to take effect and be in force on the first day of January, 1913; that in the redistricting of said county precinct No. 2 was created with boundaries very much extended and enlarged over what was formerly known as "Precinct No. 2"; that precinct No. 2, as it existed at the time of appellant's election, was abolished by chapter 42, Laws 1st Legislature of Arizona, on August 15, 1912, to take effect on the first day of January, 1913, and that the term of office of appellant expired by law on the same date; that on January 3, 1913, Walter Thomas was appointed by the said board of supervisors to fill the vacancy in the office of justice of the peace in and for said precinct No. 2 so created by said board on September 3, 1912; that Thomas duly qualified and made demand of appellant for the possession of said office, which was refused; that appellant continues to usurp, hold, and exercise the said office to the exclusion of said Thomas.

The appellant interposed a general demurrer to the complaint. He also challenges the constitutionality of chapter 42, supra, and the action of the board of supervisors in its proceedings thereunder.

By our constitution (article 6, section 1) the judicial power of the state is vested in a supreme court, superior courts, justices of the peace and such courts inferior to the superior courts as may be provided by law.

The office of the justice of the peace is one of great antiquity, and because of its ready accessibility to all of the people and its expeditious dispatch of business and the informality of its proceedings many of the states of the Union have made it a constitutional office. It is made so by our constitution.

The law is well settled that when the term, qualifications, salary, or method of election of a judicial officer is prescribed by the constitution the legislature is incompetent to change, modify, or in any manner interfere with such requirements in the organic law, except as that instrument may allow. Cooley's Constitutional Limitations, 388, and note. The same author lays down another equally well-settled rule that: "Where an office is created by statute, it is wholly within the control of the legislature. The term, the mode of appointment, and the compensation may be altered at pleasure, and the latter may be even taken away without abolishing the office."

Section 11, article 7, of the constitution, provides for bienial elections of state, county and precinct officers. This section, when construed in connection with the other provisions of that instrument, we think definitely fixes the term of office of justice of the peace to two years. This term of office is constitutional, and cannot be changed by the legislature.

Section 9, article 6, of the constitution, provides that "the number of justices of the peace to be elected in incorporated cities, towns and precincts . . . shall be provided by law." It was in pursuance of this power conferred on the legislature to provide by law the number of justices of the peace that chapter 42, as an amendment of paragraph 948 of chapter 1 and paragraph 1051 of chapter 3, title 14, Revised Statutes of Arizona of 1901, was enacted. The amended sections read as follows:

"948. (Sec. 21.) On the first Monday in September, 1912, the board of supervisors of the several counties of the state shall redistrict their counties into justice precincts; such redistricting of counties shall take effect and be in force on the first day of January, 1913, and all justice precincts, now in existence, are hereby declared abolished on and after the first day of January, 1913; and the terms of justices of the peace and constables, now in office, are hereby terminated on the first day of January, 1913."

"1051. (Sec. 124.) The officers of justices' precincts are one justice of the peace and one constable."

By this act the legislature has undertaken to prescribe the number of justices of the peace "to be elected in incorporated cities, towns and precincts" (1) by directing the boards of supervisors of the several counties to redistrict their counties into precincts, and (2) by providing one justice of the peace for each precinct. The legislature in doing this acted within the powers granted it by the constitution. But the act goes further and abolishes all justice precincts and terminates the terms of office of all justices and constables in the state. All these officers had been chosen under the laws of the territory of Arizona, and in the transition from the territorial government to the state government no provision for the election of precinct officers was contained in the enabling act and ordinance No. 2; and hence none were elected in December, 1911, at the time state and county officers were chosen.

In State v. Osborne, ante, p. 185, 125 P. 888, 891, it was held that the constitution made no provision for the election of precinct officers until the first general state election; and that they would hold office until their successors are elected at that time and qualify.

The framers of the constitution, in order that the change of government might be effected without a suspension of any of its functions, provided, in section 6, article 22, that "all territorial, district, county and precinct officers who may be in office at the time of the admission of the state into the Union shall hold their respective offices until their successors shall have qualified."

As above stated, all state and county officers were elected in December, 1911, but not so as to precinct officers; they having their offices by virtue of section 6, article 22, supra, will hold until their "successors" qualify. The question is, How may these "successors" be chosen? Chapter 42 does not attempt to provide the method of filling the newly created precincts. We must therefore look to the territorial laws, for all of such laws, where not repugnant to the constitution, are kept in force until altered or repealed, and to the constitution itself.

Under the territorial laws (Rev. Stats. 1901, par. 973, subd. 2) boards of supervisors had power "to divide the counties into such districts or precincts as may be required by law, change the same and create others as convenience requires." Subdivision 17: "To fill by appointment all vacancies that may occur in county or precinct offices, except that of probate judge and supervisors."

Under statutes very much the same as ours, the courts of California have decided that boards of supervisors may alter, change, and erect new precincts, when "the growth of population of different parts of the state and the constant changes therein make necessary frequent changes in the size of townships," and in doing so may abolish townships altogether But the laws of California, like the laws of the territory of Arizona, empowering the boards of supervisors to do these things were general laws, and left the duty of altering or erecting townships in the discretion of the boards of supervisors or local legislative body, as the necessities of the case arose. The right of the legislature to provide for such changes, the California courts say, is unlimited, except that it must be done through "the medium of general law, the practical result of which is that it cannot make these changes directly, but must do so by general laws delegating the power to the boards of supervisors or local legislative bodies of the respective counties." Proulx v. Graves, 143 Cal. 243, 76 P. 1025.

Chapter 42 requires the boards of supervisors to redistrict their respective counties on the first Monday of September, 1912. It may not be done at any other time. The boards of supervisors can exercise no discretion as to the necessity for redistricting their counties; and, unless authorized to do so by other provisions of the law, they will be powerless to readjust the precincts of their counties to meet demands of increased or changed populations.

Nor had the boards of supervisors the power or right to retain intact any precinct, however well suited to the conditions of population and business of their county. Regardless of all existent conditions of convenience and necessity, the legislature, in chapter 42, blotted out of existence every precinct in the state. It did not "provide for doing so through the medium of general laws," but did it directly. This, as we understand the California decisions, it could not do. It not only abolishes all the precincts in the state, but cancels the commission of every precinct officer of the state. These officers were chosen by the electorate and the manner of their removal from office is provided by general law; but chapter 42 ignores the usual and regular...