Renck v. Superior Court of Maricopa County, 5001

• Decision Date: 01 December 1947
• Docket Number: 5001
• Citation: 66 Ariz. 320,187 P.2d 656
• Parties: RENCK v. SUPERIOR COURT OF MARICOPA COUNTY et al
• Court: Arizona Supreme Court

187 P.2d 656

66 Ariz. 320

RENCK v. SUPERIOR COURT OF MARICOPA COUNTY et al

No. 5001

Supreme Court of Arizona

December 1, 1947

Petition by W. H. Renck against the Superior Court of Maricopa County, State of Arizona and the Honorable Edwin Beauchamp, judge of the Superior Court of Maricopa County Arizona, for writ of prohibition to prevent the Superior Court and the Honorable Edwin Beauchamp from continuing to exercise jurisdiction over a specified cause there pending.

Peremptory writ of prohibition issued.

Hill Robert, Hill & Price, of Phoenix, for petitioner.

H. S. McCluskey and L. H. Whitlow, both of Phoenix, and Ira Schneier, of Tucson, for respondents.

Udall, Justice. Stanford, C. J., and LaPrade, J., concur.

OPINION

Udall, Justice.

By original proceeding before this court, petitioner W. H. Renck sought a writ of prohibition to prevent the Superior Court of Maricopa County and the Honorable Edwin Beauchamp, one of the Judges thereof, from continuing to exercise jurisdiction over cause no. 56648 there pending. Respondents were given proper statutory notice of the application for the writ and they appeared and answered. Oral argument was granted.

A chronological recitation of the pertinent facts is as follows: On July 3, 1946, an initiative petition was timely filed with Dan Garvey, Secretary of State, for submission to the electors of the state at the next general election. The subject matter of the petition was a proposed constitutional amendment providing that no person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization. On August 13, 1946, D. A. Baldwin and George Sebestyen, as qualified electors of Maricopa County, in behalf of themselves and many thousands of qualified electors similarly situated, filed suit in the Maricopa County Superior Court against Dan Garvey individually, and as Secretary of State, challenging the legal sufficiency of the initiative petition and contending, therefore, that the measure was not entitled to a place on the general election ballot. Specifically, irregularities and gross fraud were charged in the procurement of signatures on the petition. A temporary restraining order directed against the Secretary of State was neither requested nor granted. However, on August 28, 1946, plaintiffs obtained the appointment of a master to take testimony as to the petition's legal sufficiency. Relief was asked for in the alternative: (a) if the insufficiency of the petition could be judicially determined prior to the time when the matter must be certified for inclusion on the ballot, the Secretary of State should be permanently enjoined from certifying the measure to the Clerks of the Boards of Supervisors, or; (b) if such determination be impossible within the limits of time prescribed by law, the court should retain jurisdiction to determine the sufficiency of the petition even though during the interim the amendment might be adopted by a majority of the electors. And, should this happen, and the petition then be found wanting, the election on that matter should be held to be null and void and the adopted measure held to be of no force or effect.

The Secretary of State evidently considered the petition consisting of the 1591 sheets bearing 31,618 signatures of purported electors prima facie sufficient (19,296 names were required), for on August 16, he certified the measure to the Clerks of the Boards of Supervisors for printing on the general election ballot. On November 25, the votes cast on this measure at the general election of November 5 were canvassed by the Secretary of State in the presence of the Governor and the Chief Justice of this court. On the same day, and in accordance with his constitutional and statutory duty, the Governor by proclamation recited that the amendment had been duly and regularly adopted, 61,875 votes having been cast in its favor as opposed to 49,557 cast against it, and was then, and as of that date, the law. The amendment now appears in the 1947 Session Laws of the Eighteenth Legislature at page 399.

At the hearings before the master appointed by the trial court, which started before the election and continued after it, approximately fifty percent of the signatures were checked. Petitioner Renck intervened in that suit and on March 12, 1947, filed a motion for summary judgment to dismiss plaintiffs' complaint upon the ground that there was no genuine issue as to any material fact and that the defendants and intervenor were entitled to such judgment as a matter of law. The Attorney General, appearing for defendant Dan Garvey both as an individual and as Secretary of State, joined in that motion. On May 5, the motion was denied and on May 16 application for writ of prohibition was filed with this court. In his appearance filed with us, the Attorney General states that the Secretary of State wholly approved of this application for writ of prohibition as though he were a party thereto. An alternative writ issued from this court on June 16.

By denying the motion for summary judgment the trial court in effect found that if the petition was ultimately found legally insufficient it had the power and duty to declare the amendment null and void even after the election, its adoption by the people, and the proclamation of the Governor that the amendment was a part of the Constitution. Since a denial of a motion for summary judgment is not an appealable order, and inasmuch as it is conceded that hearings before the master might well continue for another sixty days together with the attendant expense, petitioner claims that prohibition is the proper remedy to determine whether the trial court is attempting to do an idle thing by further proceeding with the trial. This court agrees with petitioner's contention in this regard. He has no other speedy or adequate remedy and prohibition properly lies to prevent an inferior tribunal from exceeding its jurisdiction in a field not appropriate to it. Duncan v. Superior Court of Pinal County, 65 Ariz. 193, 177 P.2d 374.

There is no doubt that in this jurisdiction any citizen has the right and power to question the legal sufficiency of an initiative petition before it has been submitted to a vote. Ahrens v. Kerby, 44 Ariz. 269, 44 Ariz. 337, 37 P.2d 375. And it is logically proper that such power exist for a citizen has no forum (as do the legislators, when assembled) in which he can check upon the propriety of the proceedings of his fellow citizens in presenting such petitions other than by his access to the courts. Such is consonant with the weight of authority. 59 C.J., Statutes, sec. 295; 28 Am.Jur. Initiative, etc., sec. 35. This court has construed that power of a citizen to question the legal sufficiency of such petitions to come within the confines of sec. 60-105, A.C.A.1939. Barth v. White, 40 Ariz. 548, 14 P.2d 743. The above cited section of our statute requires that should the Secretary of State refuse to accept and file an initiative petition, a citizen must apply to the superior court within ten days from such refusal for a writ of mandamus. No time limit is designated, however, in this section or anywhere else for applying to the court for an injunction to restrain or enjoin the Secretary of State from certifying or the Clerks of the Boards of Supervisors from printing on the official ballot an initiated measure the petition for which the citizen believes to be legally insufficient. And an examination of our records discloses that several of the reported cases where injunctive relief was granted and the measure kept off the ballot were not actually filed within the ten-day limit although that point was not there considered. Ahrens v. Kerby, supra; Kerby v. Griffin, 48 Ariz. 434, 62 P.2d 1131; Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549, 94 A.L.R. 1502. Respondents here contend that: (1) It makes no difference, therefore, that they questioned the petition's sufficiency some forty days after it was filed, and further suggest that their power to do this arises not from the statute in question, but instead from the constitutionally created jurisdiction of our superior courts (art. 6, sec. 6, Constitution of the State of Arizona). (2) Neither, it is contended, are they foreclosed by the fact that the subject matter of the petition has since been placed upon the ballot, voted upon by the people and adopted. For this they rely upon Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445. Our decision upon this second contention eliminates any necessity for a consideration of their first proposition.

At the outset, we must not confuse the question as to whether the court has power to continue an investigation as to the legal sufficiency of an initiative petition after an election has been had and the measure adopted, with the power of the court to declare acts repugnant to the Constitution void at any time it has a proper case before it. This latter proposition is so well recognized and is so important a part of the court's duty that no citation of authority it necessary. As a matter of fact the constitutionality of the very amendment here in question is now before us in another case in which respondents' present attorneys are of counsel.

Once, however, the subject matter of the petition has been placed upon the ballot and thence adopted at a regularly held election of the people, it is then too late to question the legal sufficiency of the petition. Allen v. State, 14 Ariz. 458, 130 P. 1114, 44 L.R.A.,N.S., 468, and cases therein cited.

"It has been frequently determined that if parties allow an...