McBride v. Kerby

• Citation: 32 Ariz. 515,260 P. 435
• Decision Date: 17 October 1927
• Docket Number: Civil 2691
• Parties: I. P. McBRIDE, HARRY THOMPSON, FRED STEGER, JAMES F. McDONALD, and FLOYD WILLIAMS, as Members of and Constituting the Arizona State Highway Commission of the State of Arizona, Plaintiffs, v. JAMES H. KERBY, as Secretary of State, of the State of Arizona, Defendant
• Court: Supreme Court of Arizona

260 P. 435

32 Ariz. 515

I. P. McBRIDE, HARRY THOMPSON, FRED STEGER, JAMES F. McDONALD, and FLOYD WILLIAMS, as Members of and Constituting the Arizona State Highway Commission of the State of Arizona, Plaintiffs, v. JAMES H. KERBY, as Secretary of State, of the State of Arizona, Defendant

Civil No. 2691

Supreme Court of Arizona

October 17, 1927

Original application for Writ of Mandamus. Alternative writ made permanent.

Messrs Struckmeyer, Jennings & Strouss, for Plaintiffs.

Mr John W. Murphy, Attorney General, Mr. Earl Anderson Assistant Attorney General, and Mr. E. J. Flanigan, Mr. W. C. Fields, and Mr. C. R. Lynch, for Defendant.

OPINION

LOCKWOOD, J.

This is an original application in this court for a writ of mandamus against James H. Kerby, as Secretary of State, to compel him to turn over to the petitioners, as the Arizona state highway commission, all data, records, and property of the state relating to the administration of the Motor Vehicle Laws of the state. The court issued the alternative writ, to which respondent answered, seeking to show cause why the writ should not be made permanent, and attempting to justify his refusal to comply with the demand of the highway commission. Petitioners demurred to his answer, and the matter was submitted to us on the demurrer. The facts appearing on the petition and answer thereto and the sufficiency of which to justify respondent in his action are questioned by the demurrer are substantially as follows:

The seventh legislature, at its regular session, passed chapter 78, Laws of 1925, commonly known as the Motor Vehicle Title Registration Act, which we shall hereinafter refer to as chapter 78. This act provided for a system of motor vehicle title registration, and various other matters, and placed the administration thereof in the hands of the Secretary of State. The eighth legislature, at its regular session, passed chapter 99, Laws of 1927, hereinafter referred to as chapter 99, which, after the title and enacting clause, reads as follows:

"Section 1. That chapter 78, Session Laws 1925, be and the same is hereby repealed."

No affirmative legislation was included in chapter 99. Within the time allowed by law a referendum petition in proper form was filed against chapter 99. Thereafter the eighth legislature, at its Fourth Special Session, passed House Bill No. 2, known as the Highway Code. This Code was passed as an emergency measure August 11, and was on the same day approved by the governor and filed in the office of the Secretary of State. It is extremely voluminous and was evidently intended to provide a complete code for the construction and maintenance of the state highways, the regulation of motor vehicles using such highways, and the providing of revenue for the various necessities of the state highway department. It repeals many sections of the Revised Statutes of 1913 and the Session Laws since that time, both directly and by implication, and among them chapter 78, supra, and affirmatively places in the hands of the highway commission the authority given the Secretary of State under chapter 78.

It is the contention of respondent that the filing of a referendum against chapter 99, supra, had the effect of suspending the right of the legislature, pending the referendum, to adopt any legislation which would conflict with any of the provisions of chapter 78, the latter being the statute repealed by the referred chapter. Since the provision of the Highway Code under which petitioners claim they are entitled to the possession of the records in question obviously does conflict with chapter 78, if the legal position of respondent is correct the demurrer should be overruled; otherwise it should be sustained.

The question is one of great importance, involving as it does the meaning of the referendum provisions of the Constitution. Counsel agree there are but four precedents in the United States on the matter. In the case of State ex rel. Megnella v. Meining, 133 Minn. 98, 157 N.W. 991, an ordinance regulating "jitney" auto service was referred, and the city authorities, before the referendum election, repealed the referred ordinance and adopted another to the same general effect but differing in substantial details. It was held not a violation of the referendum provision. There was no discussion of the general principles involved, but merely a flat statement that the council could not have passed an ordinance essentially like the referred one, but could pass one covering the same subject matter as long as it differed materially. In Ex parte Statham, 45 Cal.App. 436, 187 P. 986, a very similar situation existed, and the court, again without attempting to make a logical analysis of the situation, approved the right of the council to pass the second ordinance, on the authority of the Megnella case, supra, but added that it might be that by use of the emergency clause the referred ordinance itself could be repealed and re-enacted verbatim, notwithstanding the referendum.

Leach v. State, 17 Okl.Cr. 322, 188 P. 118, holds only that:

"After the date at which an election is held on a referred measure, although such election be held to be invalid, a subsequent Legislature was authorized to consider the act referred" to "as having been rejected, and to propose and pass appropriate legislation upon the same subject. . . ." (Italics ours.)

The Megnella case, supra, was discussed, and the statement therein that the legislative body could not put into effect a law exactly similar to the referred law was mentioned, but the Oklahoma court neither approved nor disapproved it specifically. It is evident that this case is not in point on the facts, nor indeed can we gain any light on the general issue therefrom.

We come, then, to the case of State v. Becker (Mo. Sup.), 240 S.W. 229. This case is fairly in point and is the only one in which there is a definite and sustained attempt to meet the issue herein presented by logical reasoning. The court was divided, four judges approving the majority view and three the minority. The opinion and reasoning of the majority fully supports the contention of respondent; that of the minority equally upholds the claim of petitioners. In view of this situation we think we are conservative in stating that there is, as yet, no rule on the subject, at least to the extent that there is a preponderant and well-reasoned line of decisions one way or the other. We therefore examine the matter as one of first impression, being guided by the specific language of our Constitution, the purpose apparently intended to be accomplished by the referendum provisions therein contained, the reasonableness and consistency of the different possible theories of interpretation, and the general rules of constitutional and statutory construction, more than by the precedents cited.

The constitutional provisions in regard to the referendum are found in article 4, section 1, of the Constitution. So far as pertinent to the subject under discussion, they read as follows:

"Section 1. (1) The legislative authority of the state shall be vested in a Legislature, . . . but the people reserve the power . . . to approve or reject at the polls any act, or item, section, or part of any act, of the Legislature. . . .

"(3) The second of these reserved powers is the referendum. Under this power the Legislature, or five per centum of the qualified electors, may order the submission to the people at the polls of any measure, or item, section, or part of any measure, enacted by the Legislature, except laws immediately necessary for the preservation of the public peace, health, or safety, . . . but to allow opportunity for referendum petitions, no act passed by the Legislature shall be operative for ninety days after the close of the session of the Legislature enacting such measure, except such as require earlier operation to preserve the public peace, health, or safety. . . .

"(5) Any measure or amendment of the Constitution proposed under the initiative, and any measure to which the referendum is applied, shall be referred to a vote of the qualified electors, and shall become law when approved by a majority of the votes cast thereon and upon proclamation of the Governor, and not otherwise.

"(6) The veto power of the Governor," or the power of the Legislature to repeal or amend, "shall not extend to initiative or referendum measures approved by a majority [vote] of the qualified electors. . . .

"(14) This section shall not be construed to deprive the Legislature of the right to enact any measure."

Let us consider the question first under the general rules of constitutional and statutory construction. There are certain well-accepted principles of which we state a few applicable to the present situation:

(1) If possible, constitutional provisions should be so construed as to make them all effective. Clark v. Boyce, 20 Ariz. 544, 185 P. 136; State v. Osborne, 14 Ariz. 185, 125 P. 884; 12 C.J. 707.

(2) The legislature has all power not expressly denied it or given to some other branch of the government. State v. Osborne, supra; Clark v. Boyce, supra.

(3) The object sought to be accomplished and the evils to be remedied by a constitutional provision must be constantly kept in mind. Gibbons v. Ogden, 9 Wheat. (U.S.) 1, 6 L.Ed. 23; Jarrolt v. Moberly, 103 U.S. 580, 26 L.Ed. 492.

(4) A construction which will result in an absurdity should be avoided. Logan Co. v. Carnahan, 66 Neb. 685, 92 N.W. 984, 95 N.W. 812; Curry v. Lehman, 55 Fla. 847, 47 So. 18; Advisory Board of Coal Creek Tp v. Levandowski (Ind. App.) 84 N.E. 346; In re Howard, 80 Vt. 489, 68 A. 513.

What is it the people reserve the right to refer? According to the Constitution, it is "any measure, or...