State ex rel. Bullard v. Osborn

• Decision Date: 18 September 1914
• Docket Number: Civil 1423
• Citation: 16 Ariz. 247,143 P. 117
• Parties: STATE ex rel. GEORGE PURDY BULLARD, Attorney General of the State of Arizona, Appellant, v. SIDNEY P. OSBORN, Secretary of State of the State of Arizona, Appellee
• Court: Arizona Supreme Court

143 P. 117

16 Ariz. 247

STATE ex rel. GEORGE PURDY BULLARD, Attorney General of the State of Arizona, Appellant, v. SIDNEY P. OSBORN, Secretary of State of the State of Arizona, Appellee

Civil No. 1423

Supreme Court of Arizona

September 18, 1914

APPEAL from a judgment of the Superior Court of the County of Maricopa. Frank O. Smith, Judge. Affirmed.

The facts are stated in the opinion.

Mr Leslie C. Hardy, Assistant to the Attorney General, Mr George R. Hill and Mr. Norman J. Johnson, for Appellant.

Mr Richard E. Sloan and Mr. James Westervelt, for Appellee.

OPINION

PER CURIAM.

This is an action brought to restrain the Secretary of State from certifying and causing to be printed on the official ballot at the election to be held on November 3, 1914, an initiated measure to create and organize Miami county. The complaint alleges:

"That the said proposed initiative bill is legally insufficient in this: That it purports and is intended to provide for the division of Gila county and to create the county of Miami and that the said bill has no application in any other part of the state, and cannot operate at any other time than as provided in the said proposed bill and that the same can have no application to any other part of the state and cannot operate at any other time, and that it is local and special legislation, and is intended to divide a particular county and to create a particular county, without reference to any other counties, or to any other time, and that each of the matters and things intended, provided, and proposed to be enacted can be done by general law, and that the said proposed initiative bill is in conflict with subdivision 20 of section 19, of article 4 of the Constitution of the state of Arizona, in that it is a special, local law in a case where a general law can be made applicable, and for these reasons the said proposed initiative bill is legally insufficient within the scope and meaning of paragraph 3327 of the Revised Statutes of Arizona."

A general demurrer to the complaint was sustained, and, the plaintiff refusing to amend, judgment was rendered in favor of defendant. The appeal is from this judgment.

Paragraph 3327, Civil Code of 1913, provides that:

". . . On a showing that any petition is not legally sufficient, the court may enjoin the Secretary of State and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and number of the measure or proposed amendment to the Constitution set forth in such petition. . . ."

It is conceded that the petition in this instance is regular in form, and is signed by the requisite number of legal voters, the only objection to the measure going on the official ballot being that it is special legislation, and therefore, when tested by subdivision 20 of section 19, article 4, of the Constitution, is "legally insufficient." It is claimed that the Secretary of State should look beyond the mere form of the petition and into its substance with a view of determining if the proposed law is in conflict with the Constitution; that he should determine if the measure should be enacted whether it would be a valid law or not, and if in his judgment an invalid law, it is his duty to refuse to certify it for a place on the official ballot. The Constitution makes the petition an indispensably necessary thing and step in the process of legislation directly by the people. It is as much so as the drawing and introducing of a bill in the legislature by one of its members. Whether the voters in taking this step are acting ministerially or in their legislative capacity is immaterial. In either event the step is essential, made so by the Constitution and by legislation. Chapter 1, tit. 22, Civ. Code 1913.

The government of the state is divided into three separate departments, the legislative, the executive, and judicial, and it is provided by the Constitution (article 3) that:

"Such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others."

In Allen v. State, 14 Ariz. 458, 44 L.R.A. (N.S.) 468, 130 P. 1114, we said:

"The people did not commit to the legislature the whole law-making power of the state, but they especially reserved in themselves the power to initiate and defeat legislation by their votes. In this state the legislature and the people constitute the law-making power."

The appellant concedes that the courts are powerless to restrain a member of the legislature from introducing any measure, valid or invalid, for the reason that the courts cannot interfere with the action of the legislative department. What legal warrant has a court to enjoin the Secretary of State from certifying a measure whether valid or invalid? Is not the initiative petition also a step in the process of legislation? For the Secretary of State, or the courts, to assume in advance the power and right to decide whether the proposed measure was invalid would be tantamount to claiming the power of life and death over every initiated measure by the people. It would limit the right of the people to propose only valid laws, whereas the other law-making body, the legislature, would go untrammeled as to the legal soundness of its measures. Such differentiation of powers is expressly prohibited by section 14, article 22, Constitution, which says:

"Any law which may...