Kerby v. Murphy

• Decision Date: 04 October 1934
• Docket Number: Civil 3555
• Citation: 44 Ariz. 208,36 P.2d 549
• Parties: JAMES H. KERBY, as Secretary of State of the State of Arizona; MELVIN C. GREER, as Clerk of the Board of Supervisors of Apache County in Said State; W. E. CLARK, as Clerk of the Board of Supervisors of Cochise County in Said State; GEORGE A. FLEMING, as Clerk of the Board of Supervisors of Coconino County in Said State; v. C. MURPHY, as Clerk of the Board of Supervisors of Gila County, in Said State; W. L. BUFFINGTON, as Clerk of the Board of Supervisors of Graham County, in Said State; ANNE S. TERRY, as Clerk of the Board of Supervisors of Greenlee County, in Said State; ORRIS HOLDREN, as Clerk of the Board of Supervisors of Maricopa County, in Said State; H. D. PATTILLO, as Clerk of the Board of Supervisors of Mohave County, in Said State; W. J. HOOKWAY, as Clerk of the Board of Supervisors of Navajo County, in Said State; GLADSTONE MacKENZIE, as Clerk of the Board of Supervisors of Pima County, in Said State; C. H. NIEMEYER, as Clerk of the Board of Supervisors of Pinal County, in Said State; WILLIAM G. SIMONTON, as Clerk of the Board of Supervisors of Santa Cruz County, in Said State; KENNETH AITKEN, as Clerk of the Board of Supervisors of Yavapai County, in Said State; WILLIAM B. LINDER, as Clerk of the Board of Supervisors of Yuma County, in Said State; Appellants, v. ARTHUR LUHRS, Appellee
• Court: Arizona Supreme Court

36 P.2d 549

44 Ariz. 208

JAMES H. KERBY, as Secretary of State of the State of Arizona; MELVIN C. GREER, as Clerk of the Board of Supervisors of Apache County in Said State; W. E. CLARK, as Clerk of the Board of Supervisors of Cochise County in Said State; GEORGE A. FLEMING, as Clerk of the Board of Supervisors of Coconino County in Said State; v. C. MURPHY, as Clerk of the Board of Supervisors of Gila County, in Said State; W. L. BUFFINGTON, as Clerk of the Board of Supervisors of Graham County, in Said State; ANNE S. TERRY, as Clerk of the Board of Supervisors of Greenlee County, in Said State; ORRIS HOLDREN, as Clerk of the Board of Supervisors of Maricopa County, in Said State; H. D. PATTILLO, as Clerk of the Board of Supervisors of Mohave County, in Said State; W. J. HOOKWAY, as Clerk of the Board of Supervisors of Navajo County, in Said State; GLADSTONE MacKENZIE, as Clerk of the Board of Supervisors of Pima County, in Said State; C. H. NIEMEYER, as Clerk of the Board of Supervisors of Pinal County, in Said State; WILLIAM G. SIMONTON, as Clerk of the Board of Supervisors of Santa Cruz County, in Said State; KENNETH AITKEN, as Clerk of the Board of Supervisors of Yavapai County, in Said State; WILLIAM B. LINDER, as Clerk of the Board of Supervisors of Yuma County, in Said State; Appellants, v. ARTHUR LUHRS, Appellee

Civil No. 3555

Supreme Court of Arizona

October 4, 1934

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

Mr Arthur T. La Prade, Attorney General, Mr. Charles L. Strouss Assistant Attorney General, (Mr. W. C. Fields and Mr. A. R Lynch, of Counsel), for Appellants.

Mr Lynn M. Laney and Mr. Grant Laney, for Appellee.

OPINION

LOCKWOOD, J.

This is an action by Arthur Luhrs against James H. Kerby, as Secretary of State of the state of Arizona, and the clerks of the various boards of supervisors of the state, to enjoin Kerby from certifying to the boards of supervisors, as entitled to be placed on the ballot at the election to be held November 6th, a certain proposed constitutional amendment, and to enjoin the clerks from placing such amendment on the ballots. The superior court issued the injunction, and the correctness of its order is before us on this appeal. Because of the importance to the people of the state of the questions involved herein, we have advanced its hearing in every possible manner. There is no dispute as to the facts involved, and the question presented is solely one of law.

The amendment was an initiated one, and no question is raised as to the sufficiency of the signatures, or of the legality of the form of the petitions, but it is contended that it violates an existing provision of the Constitution which regulates how such amendments should be submitted. A proper understanding of the question can only be had by examining the entire text of the proposed amendment in the light of the constitutional provision which, it is claimed, its submission in its present form violates. The proposed amendment reads as follows:

"Be it enacted by the people of the state of Arizona:

"That Article IX of the Constitution of the State of Arizona be amended by adding thereto three additional sections, numbered Section 12, Section 13, and Section 14, to read as follows:

"'Section 12.Every person engaged in the mining of copper within the State of Arizona, as owner, lessee, trustee, possessor, receiver, or in any other proprietary capacity shall, in addition to all other taxes or excises imposed by law, pay to the State Treasurer, for the use of the State of Arizona, a license tax as follows:

"'A tax of one-half cent per pound on all copper produced from ore mined or extracted by open pit or surface operation;

"'A tax of one-half cent per pound on all copper produced from ore mined or extracted by underground operation where the average grade or copper content of such ore exceeds two percentum, and one-quarter cent per pound where the average grade or copper content of such ore shall equal two percentum or less.

"'Every person taxable under the foregoing provisions shall quarterly, on the first of January, April, July, and October of each year, make a return to the State Tax Commission, on forms prepared by the Commission, showing the total tonnage of ore mined or produced for the preceding quarter, the average grade of copper content of such ore, the number of pounds of copper produced, and such other information as shall be required by the Commission, and shall on said dates pay to the State Treasurer the tax for the preceding quarter.'

"'Section 13: The tangible property of public service corporations engaged in the production, sale, or distribution of gas, water, or electricity, shall unless exempted from taxation by law, be assessed for purposes of taxation upon the valuations fixed by the Corporation Commission of Arizona for rate-making purposes.

"'The Corporation Commission shall on or before May 1st of each year, transmit to the State Tax Commission a statement of the tangible property of each such public service corporation operating within the State, and the valuation of such property fixed by the Corporation Commission for rate making purposes.'

"'Section 14: The State Tax Commission of Arizona, as it now exists, and is heretofore created by Chapter 23, Laws of the First Legislature of Arizona, Regular Session, is hereby created and declared a constitutional commission and office.'

"Such Commission shall have charge of the administration of Sections 12 and 13 of this Article, with full power to prescribe and promulgate rules, regulations, forms and penalties for its enforcement.

"Any license tax imposed by Section 12 shall become delinquent on the fifth day after it shall become due and shall bear interest at the rate of ten per cent per annum after delinquency; it shall be a lien upon all property in this State owned by the taxpayer upon whom it is imposed.

"The Commission, its attorneys, auditors and agents, shall at all times have access to the books, records, and returns of any taxpayer under Section 12 of this Article, relating to the mining or production of copper and copper ores, and shall have full power to compel obedience to the provisions of this Section, by attachment or other process.

"The Commission shall have power to appoint and pay auditors, accountants, agents and attorneys necessary to the enforcement and collection of the license taxes imposed by Section 12 hereof, and to the carrying out of any other constitutional or statutory duty imposed upon it, and may bring and defend actions at law or in equity requisite to the proper discharge of its duties.

"The license taxes and interest collected under Section 12 of this Article shall be used in defraying deficiencies and outstanding obligations of the state until the same have been paid; therefore they shall be deposited to the credit of the general fund of the State for the uses of such fund.

"The term 'person,' as used in Sections 12, 13 and 14 of Article IX, shall mean and include any individual, firm, copartnership, company, corporation, association, joint stock company, common law trust, business trust, syndicate, or other concern of whatsoever name, or however organized, found or created.

"Sections 12, 13 and 14 of Article IX are declared to be self-executing, and are intended to be carried out by the State Tax Commission, without legislative intervention which Commission is empowered to impose and promulgate all necessary rules and regulations in the premises, which rules and regulations imposed shall have the effect of law."

And the constitutional provision which it is claimed it violates is in the following language: Article 21, section 1:

"... 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."

It is contended that the proposed amendment is contrary to the provision quoted, in that, although in name but one amendment, it is in substance actually three or more.

It is a cardinal axiom of interpretation of all written instruments that they are to be construed in the light of their purpose, and this is particularly applicable to Constitutions, which are by necessity general in their nature, and presumably intended to remain in force for a long period of time. It is therefore held that they are to be construed in the light of the exigencies and conditions which they are intended to meet and deal with. McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; Home Building & Loan Assn. v. Blaisdell, (Oct. Term 1933) 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481. It was agreed by counsel for both plaintiff and defendant at the oral hearing of this case that there is no doubt the constitutional provision above quoted was intended to prevent the pernicious practice of "log-rolling" in the submission of a constitutional amendment. This so-called log-rolling may be illustrated as follows: Three interested parties are desirous respectively of securing the enactment into law of three distinct propositions, A, B and C. These propositions are so essentially dissimilar that it is obvious that the legislators, who must pass thereon, will probably be divided in their opinion as to their merit. Some of them may earnestly desire proposition A, while being opposed, though in a lesser degree, to B and C. Others consider the enactment of proposition B of paramount importance, while objecting to A and C, while the members of a third group are willing to sacrifice their convictions on A and B for the sake of securing C. The original framers of the three propositions, realizing this situation,...