Kerby v. Griffin, Civil 3820

• Decision Date: 01 December 1936
• Docket Number: Civil 3820
• Citation: 62 P.2d 1131,48 Ariz. 434
• Parties: JAMES H. KERBY, as Secretary of State of the State of Arizona, et al., Appellants, v. A. J. GRIFFIN, Appellee. [*]
• Court: Arizona Supreme Court

62 P.2d 1131

48 Ariz. 434

JAMES H. KERBY, as Secretary of State of the State of Arizona, et al., Appellants, v. A. J. GRIFFIN, Appellee. ^[*]

Civil No. 3820

Supreme Court of Arizona

December 1, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Suit by A. J. Griffin against James H. Kerby, as Secretary of State, and others. From a judgment granting a permanent injunction, defendants appeal.

Affirmed.

McALISTER, J., dissenting.

Mr John L. Sullivan, Attorney General, and Mr. Elmer C. Coker Assistant Attorney General, for Appellants.

Mr. R. N. Campbell, for Appellee.

OPINION

LOCKWOOD, C.J.

A. J. Griffin, hereinafter called plaintiff, brought suit in the superior court of Maricopa county against James H. Kerby as Secretary of the State of Arizona, hereinafter called defendant, and against the clerks of the boards of supervisors of each and every county in the state of Arizona, asking that defendant Kerby be enjoined from certifying to any of the clerks aforesaid any number or form of ballot title for a certain initiative petition which had been filed with him, proposing to submit to the voters a certain law whcih we shall hereinafter call the school law, and from distributing and furnishing to the clerks or the voters of the state certain publicity pamphlets to which we shall hereinafter refer, and that the clerks be enjoined from causing to be printed on the ballot for the general election any number or ballot title for said school law, or from distributing to the voters any of the said publicity pamphlets. The trial court issued a temporary restraining order, and, upon hearing, granted a permanent injunction as prayed for, and this appeal is from the permanent injunction so granted.

The facts of the case, so far as material to its decision, may be stated as follows. When the Constitution of Arizona was adopted in 1910, it contained the following provisions:

"Article 4, § 1, subd. (1). The legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives, but the people reserve the power to propose laws and amendments to the Constitution and to enact or reject such laws and amendments at the polls, independently of the Legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any Act, or item, section, or part of any Act, of the Legislature....

"(9) Every Initiative or Referendum petition shall be addressed to the Secretary of State in the case of petitions for or on State measures, and to the clerk of the Board of Supervisors, city clerk, or corresponding officer in the case of petitions for or on county, city, or town measures; and shall contain the declaration of each petitioner, for himself, that he is a qualified elector of the State (and in the case of petitions for or on city, town, or county, measures, of the city, town, or county affected), his post office address, the street and number, if any, of his residence, and the date on which he signed such petition. Each 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.

"(10) When any Initiative or Referendum petition or any measure referred to the people by the Legislature shall be filed, in accordance with this section, with the Secretary of State, he shall cause to be printed on the official ballot at the next regular general election the title and number of said measure, together with the words 'Yes' and 'No' in such manner that the electors may express at the polls their approval or disapproval of the measure.

"(11) The text of all measures to be submitted shall be published as proposed amendments to the Constitution are published, and in submitting such measures and proposed amendments the Secretary of State and all other officers shall be guided by the general law until legislation shall be especially provided therefor."

"Article XXI, Mode of Amending. 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.... 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."

In pursuance of the provisions of article 21, supra, the legislature in 1912 provided a method of publicity in lieu of that set forth in the article, which was carried forward in substance as section 1746, Revised Code of 1928.

This section reads, in part, as follows:

"Publicity; pamphlets. Not later than the first Monday of the third month next before any regular general election, nor later than thirty days before any special election, at which an initiative or referendum or amendment to the constitution is to be submitted to the people, the secretary of state shall cause to be printed in pamphlet form a true copy of the title and text of each measure to be submitted, with the number and form in which the ballot title thereof will be printed on the official ballot.... Any person may file with the secretary of state, for printing and distribution, an argument opposing any measure, or proposed constitutional amendment, not later than the fourth Monday of the fourth month immediately preceding such election. Arguments advocating or opposing any measures, referred to the people may be filed within the same time, but may be filed by any person or organization; arguments in support of a measure or proposed amendment submitted at a special election must be filed at least sixty days before such election.... The secretary shall print each of said arguments in the pamphlet copy of the measures and proposed constitutional amendments; all such measures and amendments and arguments to be submitted at one election shall be bound together in a single pamphlet.... Not later than the fifty-fifth day before the regular general election at which the measures or amendments are to be voted upon, the secretary of state shall transmit by mail, postage prepaid, to every voter in the state whose address he may have, one copy of such pamphlet, and shall continue the mailing as the names are received from the county recorders, until all registered voters have been supplied with a copy."

In 1935, the legislature, being dissatisfied for some reason with the method of publicity provided by section 1746, aforesaid, adopted chapter 62 of the Regular Session Laws of that year, which amended section 1746, supra, materially in regard to the time and method in which the publicity pamphlets provided for in that section should be distributed. The section as amended by chapter 62 reads, so far as material, as follows:

"Section 1. (Sec. 1746.) Publicity Pamphlet; Printing; Distribution. (a) Whenever the secretary of state is ordered, by the legislature or by petition, under the initiative and referendum provisions of the constitution, to submit to the people any measure or proposed amendment to the constitution, he shall cause to be printed, at the expense of the state, except as hereinafter provided, a publicity pamphlet, which shall contain: (1) a true copy of the title and text of such measure or proposed amendment; (2) the form in which the said measure or proposed amendment will appear on the ballot and the number by which it will be designated; (3) the arguments for and against the said measure or amendment.

"(b) Not later than the tenth day before the primary election the secretary of state shall cause to be delivered to the board of supervisors of each county a quantity of such publicity pamphlets equal to the number of registered voters in each county, according to information which shall be supplied to the secretary of state by the several county recorders immediately upon the closing of registration prior to said primary election; and with the election supplies directed by law to be sent to the voting precincts in each county there shall be sent a quantity of publicity pamphlets equal to the number of registered voters in said voting precincts respectively.

"(c) It shall be the duty of the election board, at said primary election, to offer one copy of said publicity pamphlet to each elector applying to vote, and to return to the board of supervisors, with the returns of said primary election, all copies thereof not so presented to voters. The board of supervisors shall immediately deliver the said copies to the county recorder, who shall offer one thereof to each person who appears to register prior to the general election.The county recorder shall also provide the several registration officers in his county with a proper supply of publicity pamphlets, and instruct them in their use.

"(d) The person filing an initiative petition, and no other, may at the same time file...