State ex rel. Jones v. Lockhart

• Decision Date: 26 December 1953
• Docket Number: No. 5857,5857
• Citation: State ex rel. Jones v. Lockhart, 76 Ariz. 390, 265 P.2d 447 (Ariz. 1953)
• Parties: STATE ex rel. JONES, Atty. Gen. v. LOCKHART.
• Court: Arizona Supreme Court

Page 447

265 P.2d 447

76 Ariz. 390

STATE ex rel. JONES, Atty. Gen. v. LOCKHART.

No. 5857.

Supreme Court of Arizona.

Dec. 26, 1953.

Ross F. Jones, Atty. Gen., in pro. per.

A. M. Crawford and Thaddeus G. Baker, Asst. Attys. Gen., for plaintiff.

Ruffo Espinosa, Nogales, for defendant.

Parker & Muecke, and Robt. L. Myers, Phoenix, amici curiae.

UDALL, Justice.

The State of Arizona upon the relation of Ross F. Jones, Attorney General, brings this original action in quo warranto, asking that this court adjudge defendant Lynn Lockhart not entitled to hold or enjoy the office of state senator from Apache County, and that judgment of ouster be entered against him.

The undisputed facts are that on March 30, 1953, there was filed with the secretary of state a regularly adopted Senate concurrent resolution proposing an amendment to the Constitution of Arizona relating to the legislature, and directing that said amendment be submitted to the qualified electors at the next regular general election or at a special election called for that purpose. Thereafter, by the provisions of Chapter 123, Laws 1953, the legislature called a special election, to be held September 29, 1953, for the purpose of submitting the above and other proposed constitutional amendments to a vote of the people. The election was held, and when the official returns were canvassed it appeared the amendment in question had carried by a majority of 444 votes. Thereupon His Excellency, Governor Howard Pyle, in obedience to Article IV, Part 1, Section 1, subsection (13) of the Constitution, issued a proclamation declaring said amendment to be law.

The amendment is an amendment of Article IV, Part 2, Section 1, subsection (1) of our Constitution, Laws 1953, p. 360, and provides in part as follows:

'2. The Legislature

'(1) The Senate shall consist of two members from each county elected at large.

'Beginning with the Twenty-second Legislature the House of Representatives shall be composed of not to exceed eighty members, to be apportioned to the counties according to the number of ballots cast in each county at the preceding general election for governor in the manner herein provided. * * *'

(Then follows a complicated apportionment formula, presently based upon each 3520 ballots cast for Governor, which will freeze the House membership at the maximum above prescribed.)

At all times prior to the adoption of the foregoing amendment, the state senate had been composed of nineteen members, the apportionment by enumeration of counties being as follows: two senators each from Cochise, Gila, Maricopa, Pima, and Yavapai counties, and one senator from Apache County and each of the other eight counties of the state.

The governor evidently considered that with adoption of the amendment, in the nine counties having but one senator under the old provisions of the Constitution, there was a newly-created additional office of state senator, and that there was a vacancy in the term thereof. The parties to this case seem to agree, and we think properly so, that Chapter 37, Laws 1923, which appears in Article 11 of Chapter 55, A.C.A.1939, providing for special election to fill vacancies in the legislature, has no application to the instant situation, wherein there has never been an incumbent of the office. That law obviously provides only for the filling of vacancies caused by death, resignation or removal of a person who is already serving a term in the legislature. However, Article 5, Section 8, of our Constitution provides:

'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.'

Believing that this section did apply to the situation, that a term existed and there was a vacancy in the office, and that he was by law empowered to fill the same, the Governor on October 31, 1953, undertook to appoint defendant Lynn Lockhart, of Springerville, Arizona, as state senator from Apache County for a short term, effective November 2, 1953.

On that day defendant appeared at the office of the Governor and took his oath of office as state senator, and in compliance with the rules of the Senate subscribed to a non-communist oath. On the following day while the Senate was assembled in open session, defendant intruded upon that body and made demand upon the Senate President, Hon, Hubert Merryweather, that he be seated as a duly qualified senator from Apache County. His words were substantially as follows:

'I am a member of this Senate; my name is Lynn Lockhart. I have been appointed by the Governor of this State to serve as the second state senator from Apache County. I hand you my certificate of appointment, my noncommunistic oath, and my oath of office. There not appearing to be any desk available for me at this time, I will sit here until a desk is provided for me.'

Apparently Mr. Lockhart then seated himself in a vacant chair on the Senate floor. Thereupon a motion to adjourn sine die was made and carried, and the senators left the chambers.

Defendant presently claims to hold and exercise the office of state senator, and to assume and perform the duties pertaining thereto, and to be entitled to receive the emoluments thereof.

Upon the verified complaint of the Senate president and pursuant to Section 28-301, A.C.A.1939, the attorney general has brought this quo warranto action, asking that judgment of ouster be entered against defendant. Article 6, Section 4 of the Constitution of Arizona, confers upon this court original jurisdiction in quo warranto proceedings as to all state officers. Members of the legislature are undoubtedly state officers. While elected from a single county or a subdivision thereof, this fact cannot alter their official rank, which arises from the fact that the legislature is under our Constitution a co-ordinate branch of the state government. Certainly their duties concern the state at large, for the legislature is an instrumentality appointed by the state to exercise a part of its sovereign powers. See Morril v. Haines, 2 N.H. 246; 42 Am.Jur., Public Officers, § 20; 49 Am.Jur., States, Territories and Dependencies, § 28. Therefore, it is of great public concern that only persons lawfully entitled thereto shall discharge the duties of a member of the state legislature, and from the facts here presented we deem the case to be a proper one for this court to exercise its original jurisdiction.

Some question is raised whether quo warranto is a proper proceeding to decide the problems here involved. We hold that it is. Section 28-301, A.C.A.1939, says:

'An action may be brought by the attorney-general in the name of the state upon his relation, * * * upon the verified complaint of any person, in the Supreme Court, * * * 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.'

When defendant received a purported appointment by the highest executive officer of this state, and pursuant thereto took an oath of office, entered the Senate chambers, claimed to be a duly qualified and acting senator, and seated himself therein as a regular member of that body, he was more than a mere volunteer or interloper without color of right, and brought himself within the terms of our statute as one who 'usurps, intrudes into or who unlawfully holds or exercises any public office.' Whether the ancient prerogative writ would lie in these circumstances we need not decide. It suffices that there is a controversy justiciable by this court. We stated in State ex rel. Sullivan v. Moore, 49 Ariz. 51, 65, 64 P.2d 809, 815, 'No officer nor tribunal other than the courts may determine whether an election or appointment is void or not.' Nor is this exercise of jurisdiction by the courts an encroachment upon the power of the legislature to judge the qualifications of its own members. See State v. O'Brien, 47 Ohio St. 464, 25 N.E. 121.

The constitutional amendment in question embraces both (a) an increase in the size of the Senate, and (b) a limitation on the future membership of the House to freeze it at its present size, accomplished by a changed basis of apportionment. It is contended that the amendment never became part of the Constitution of this state because the manner in which it was submitted to a vote of the people violated Article 21, Section 1, of the Constitution of Arizona, which provides in part as follows:

'* * * 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.

We believe the prohibition of Article 21, Section 1 was not violated, and we shall proceed to point out why. In the case of Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549, 554, 94 A.L.R. 1502, this court laid down the yardstick to be used in determining what matters fall within the ban of the constitutional provision, and said:

'If the different changes contained in the proposed amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment falls within the...