State ex rel. De Concini v. Sullivan, 5058

• Decision Date: 10 January 1948
• Docket Number: 5058
• Citation: 66 Ariz. 348,188 P.2d 592
• Parties: STATE ex rel. DE CONCINI, Attorney General, v. SULLIVAN
• Court: Arizona Supreme Court

188 P.2d 592

66 Ariz. 348

STATE ex rel. DE CONCINI, Attorney General, v. SULLIVAN

No. 5058

Supreme Court of Arizona

January 10, 1948

Quo warranto proceedings, on the relation of Evo De Concini Attorney General of the State of Arizona, against John L Sullivan, respondent, for a judgment excluding the respondent from the office of Attorney General.

Judgment rendered excluding respondent from office of Attorney General.

Cunningham Carson, Messinger & Carson, of Phoenix, for plaintiff.

John L. Sullivan, of Phoenix, in pro. per., for defendant.

Stanford, C. J., and La Prade and Udall, JJ., concur.

OPINION

PER CURIAM

This is an original action in quo warranto filed pursuant to article 6, section 4 of the State Constitution and section 28-301, A. C. A. 1939, in the name of the State of Arizona upon the relation of Evo De Concini claiming to be the Attorney General of the State against John L. Sullivan who is alleged to be usurping, intruding into, unlawfully holding, and pretending to exercise the office of Attorney General. A citation was issued by this court directed to respondent Sullivan to answer by what warrant he claimed to exercise the office of Attorney General.

The pleadings do not present any substantial dispute as to the facts, for, while there are denials in the answer, they relate to the legal effect of facts either admitted or not specifically denied. The petition alleges in substance: (1) That on December 13, 1947, following a trial and verdicts of guilty by a jury on November 22, 1947, the respondent and then Attorney General of the State of Arizona was by the Superior Court of Graham County, Arizona, adjudged guilty on two counts of an information charging him with the crime of conspiracy to violate the gambling laws of the State of Arizona, specifically section 43-1101, and sentenced to imprisonment in the Arizona State Prison; (2) that the Governor of the State, the Honorable Sidney P. Osborn, upon being notified of the judgment of conviction advised respondent in writing that he, as Governor, considered that a vacancy had been created in the office of Attorney General by the judgment of conviction, and that he had appointed Evo De Concini to the office; (3) that the relator upon being notified of his appointment duly qualified for the office by filing the oath and bond required by law; (4) that thereafter respondent intruded himself into the office and unlawfully usurped, held, and exercised the office of Attorney General; (5) that because of many actions pending in the courts of the State wherein the Attorney General is a party, and because of the necessity that the rights of the State and the people thereof be protected, it is essential that respondent be ousted from office, and requests this court to assume original jurisdiction.

At the time of passing of judgment of conviction respondent was the duly elected, qualified, and acting Attorney General of the State of Arizona, and whose term would not expire until the first Monday in January, 1949. It is a matter of cognizable record that subsequent to the judgment of conviction a certificate of probable cause for appeal was granted, which was followed by notice of appeal to the Supreme Court, thereby execution of the judgment was stayed. Respondent admits that he makes claim to retain and hold the office of Attorney General, but denies that said claim is usurping, intruding into, or unlawfully holding said office. Respondent also challenges the applicability of the writ of quo warranto to the fact situation prevailing, and alleges that he can be removed from office only by recall or impeachment as provided in the Constitution. The impeachment provisions appear as article 8, part 2, sections 1 and 2, Arizona Constitution, and provide as follows:

"§ 1. [Power of impeachment.] -- The house of representatives shall have the sole power of impeachment. The concurrence of a majority of all the members shall be necessary to an impeachment. All impeachments shall be tried by the senate, and, when sitting for that purpose, the senators shall be upon oath or affirmation to do justice according to law and evidence, and shall be presided over by the chief justice of the Supreme Court. Should the chief justice be on trial, or otherwise disqualified, the senate shall elect a judge of the Supreme Court to preside."

"§ 2. [Conviction on impeachment.] -- No person shall be convicted without a concurrence of two-thirds of the senators elected. The governor and other state and judicial officers, except justices of courts not of record, shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office, but judgment in such cases shall extend only to removal from office and disqualification to hold any office of honor, trust, or profit in the state. The party, whether convicted or acquitted, shall, nevertheless, be liable to trial and punishment according to law."

It is his contention that these provisions constitute the exclusive remedy for creating a vacancy in the office of Governor and other State and judicial offices, including the office of Attorney General.

It is the position of the relator that by provisions of section 12-404, A. C. A. 1939, a vacancy was created in the office of Attorney General by the conviction of respondent of offenses involving a violation of his official duties as Attorney General, which vacancy the Governor was under the duty and empowered to fill by the provisions of article 5, section 8, of the Constitution, reading as follows:

"§ 8. [Governor to fill vacancies.] -- When any office shall, from any cause, become vacant, and no mode shall be provided by the constitution or by law for filling such vacancy, the governor shall have the power to fill such vacancy by appointment."

Sec. 12-404, supra, is the legislative provision defining vacancies. It reads:

"Vacancy by law. -- An office shall be deemed vacant from and after the happening of either of the following events before the expiration of the term: Death of the incumbent; his insanity, when judicially determined; his resignation, and the lawful acceptance thereof; his removal from office; his ceasing to be an inhabitant of the state or, if the office be local, of the district, county, city, or precinct for which he was chosen or appointed, or within which the duties of his office are required to be discharged; his absence from the state, without permission of the legislature, beyond the period of three (3) consecutive months; his ceasing to discharge the duties of his office for the period of three (3) consecutive months, except when prevented by sickness, or when absent from the state by permission of the legislature; his conviction of a felony, or of any offense involving a violation of his official duties; the failure of the person elected or appointed to such office, to file his official oath or bond within the time prescribed by law; the decision of a competent tribunal declaring void his election or appointment." (Emphasis supplied.)

The action of quo warranto is authorized by section 28-301 which reads as follows:

"Attorney-general may bring -- Venue -- Against whom. -- An action may be brought by the attorney-general in the name of the state upon his relation, upon his own information, or upon the verified complaint of any person, in the Supreme Court, in cases where that court has jurisdiction, or otherwise in the superior court of the county having jurisdiction, against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within this state, and he shall bring such action whenever he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised."

This statute contemplates two types of action: the first is brought in the public interest by the Attorney General to exclude one who is not entitled to the office from exercising it; the second is brought by a claimant in his private interest wherein he must show by his complaint who is entitled to the office. The judgment then determines his claim and grants damages for the usurpation. State ex rel. Sullivan v. Moore, 49 Ariz. 51, 64 P.2d 809. The action in the instant case was not brought by the relator in his private capacity to determine his right to the office but rather in the public interest to exclude the respondent.

Our right to take original jurisdiction has not been questioned nor could it be, for article 6, section 4 of the Constitution expressly confers it. The reasons that actuated this court to accept jurisdiction in the case of Sullivan v. Moore, supra, are equally present here. The public business demands a prompt judicial inquiry and a final determination of the actions of the respondent in allegedly unlawfully usurping, holding, and exercising so vital an office as that of Attorney General.

We are directly presented with this question: Is that portion of section 12-404 which provides that a vacancy shall be deemed to exist in an office when the holder thereof is convicted of a felony, or of any offense involving a violation of his official duties, unconstitutional as in violation of sections 1 and 2, part 2, article 8 of the Constitution? The offenses for which respondent was convicted are punishable by imprisonment in the State Prison or by fine. Section 43-109 provides:

"Crimes are either felonies or misdemeanors. -- A felony is a crime which is punishable with death or by imprisonment in the state prison; every other crime is a misdemeanor. When a crime punishable by imprisonment in a state prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a...