State ex rel. Nelson v. Jordan, 9480

Decision Date06 February 1969
Docket NumberNo. 9480,9480
PartiesSTATE of Arizona ex rel. the Attorney General, Gary K. NELSON, Petitioner, v. Jewel W. JORDAN, Respondent.
CourtArizona Supreme Court

Gary K. Nelson, Atty. Gen., Phoenix, for petitioner.

R. G. Langmade, Phoenix, for respondent.

STRUCKMEYER, Justice.

This original proceeding in quo warranto was brought by the State of Arizona, out of the relationship of Gary K. Nelson, the Attorney General, to test the right of Jewel. W. Jordan to hold the office of State Auditor. On December 31, 1968, this court entered judgment that respondent legally held an existing office, that of State Auditor. On January 9, 1969, petitioner filed a motion for rehearing asking for a reconsideration of the State's position on the merits. Rehearing granted and Judgment of December 31, 1968, vacated.

Respondent objects to petitioner's motion for rehearing urging that there is no procedure for reconsideration of a decision where this court exercises its original jurisdiction pursuant to Art. 6, § 5, 1, Constitution of Arizona, A.R.S. It is true that Rule 1 of the Rules of the Supreme Court, 17 A.R.S. only sets forth the procedure for filing and hearing applications invoking our original jurisdiction. It does not set forth a procedure for a rehearing, but, we note, neither does the rule expressly prohibit a rehearing.

We are reluctant on principle to subscribe to the notion that the court does not have the right or power to reconsider decisions found to be manifestly in error. Such was our view in Lindus v. Northern Insurance Company of New York, 103 Ariz. 160, 438 P.2d 311. There, on a motion for rehearing of a denial of a motion for review we recalled the mandate and accepted review, although there was no rule providing for reconsideration. We said:

'It would be absurd to argue that a court, empowered to correct errors in every other court in this state cannot correct its own. Ariz.Const. Art. 6, Sec. 5, A.R.S. To hold otherwise would create the astounding concept that mistakes made by the Supreme Court of Arizona are the only errors for which no relief is available.' 103 Ariz. at 162, 438 P.2d at 313.

There is precedent for this application for rehearing. In the past on an original application for prohibition under the same Article and Section, Art. 6, § 5, we granted a motion for rehearing as a matter of course and without discussion. State v. Superior Court of Maricopa County, 93 Ariz. 149, 379 P.2d 133, on Rehearing 93 Ariz. 351, 380 P.2d 1009. In Lane v. Mathews, 75 Ariz. 1, 251 P.2d 303, although there was no rule providing therefore, this court granted a second rehearing stating that it was under the inherent power of the court to correct its judgments. And see Arizona Com. Min. Co. v. Iron Cap C. Co., 29 Ariz. 23, 239 P. 290. We note also that in Utah, a State with a constitutional provision similar to Arizona's Art. 6, § 5, its Supreme Court accepted rehearing on an original application in quo warranto. State ex rel. Stain v. Christensen, 84 Utah. 185, 35 P.2d 775, 812, and see Art. 8, § 4, Constitution of Utah, Revised Statutes of Utah.

Prior to the General Election of November 5, 1968, the office of State Auditor was a constitutional office. Art. 5, § 1 in so far as pertinent provided:

'The Executive Department shall consist of Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for two years beginning on the first Monday of January next after his election.'

At the same election there was referred to the people by the legislature of Arizona Proposition No. 108, a proposed constitutional amendment, to abolish the office of State Auditor. It reads in its pertinent part:

'Section 1. The Executive Department shall consist of Governor, Secretary of State, State Treasurer, Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for two years beginning on the first Monday of January next after his election.'

The legislature also referred to the people Proposition No. 104 seeking to amend the existing Art. 5, § 1 by changing the terms of office for the Executive Department from two to four years. This included the office of State Auditor since it was at the time of referral an existing office. Proposition No. 104 reads in its pertinent part:

'Section 1. The Executive Department shall consist of Governor, Secretary of State, State Auditor, State Treasurer. Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for four years beginning on the first Monday of January, 1971 next after the regular general election in 1970.'

Proposition No. 104 received 266,035 affirmative and 129,991 negative votes and Proposition No. 108 received 206,432 affirmative and 171,474 negative votes. Both were proclaimed as adopted by the Governor on December 4, 1968.

Respondent, Jewel W. Jordan, has held the office of State Auditor for many years and was re-elected at the General Election on November 5, 1968. It is her position that Proposition No. 104 is in conflict with Proposition No. 108 because Proposition No. 104 in specifically enumerating the offices of the Executive Department of the State Included the office of State Auditor. By the Constitution, Art. 4, part 1, § 1(12), where two or more amendments to the Constitution adopted at the same election are in conflict, the one receiving the greater number of affirmative votes shall prevail. Proposition No. 104 received the greater number of affirmative votes.

In the decision of this court on December 31, 1968, the dissenting judges pointed out that 'while Art. V § 1 consists of one sentence, structurally it has two distinct clauses, hence it is divisible into two severable parts,' one enumerating the offices of the Executive Department and the other providing for their terms. The dissenting judges were of the opinion that the plain legislative purpose in referring two propositions to the people was to amend each clause separately, thereby permitting the electorate to decide separately whether the terms of office of the Executive Department should be increased to four years, and whether the office of State Auditor should be abolished. It was necessary that the propositions conform to Art. 21, § 1, Constitution of Arizona and the holding of this court in Kerby v. Luhrs, 44 Ariz. 208 at p. 221, 36 P.2d 549 at p. 554, 94 A.L.R. 1502:

'* * * if any one of the propositions, * * * is not such that the voters 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, * * *.'

This conclusion as to the purpose in submitting two propositions is made clear in the title to the Senate Concurrent Resolution No. 6 (Proposition No. 104) reading:

'A CONCURRENT RESOLUTION

'PROPOSING AN AMENDMENT OF THE CONSTITUTION OF ARIZONA RELATING TO THE EXECUTIVE DEPARTMENT; PROVIDING FOR FOUR YEAR TERMS FOR THE GOVERNOR, SECRETARY OF STATE, STATE AUDITOR, STATE TREASURER, ATTORNEY GENERAL AND SUPERINTENDENT OF PUBLIC INSTRUCTION, AND AMENDING ARTICLE 5, SECTION 1, CONSTITUTION OF ARIZONA.'

and the title to the House Concurrent Resolution No. 1 (Proposition No. 108):

'A CONCURRENT RESOLUTION

'PROPOSING AN AMENDMENT OF THE CONSTITUTION OF ARIZONA ABOLISHING THE OFFICE OF STATE AUDITOR, AND AMENDING SECTIONS 1, 6 AND 9 OF ARTICLE 5, CONSTITUTION OF ARIZONA.'

Since Proposition No. 108 was passed by the legislature some nine days prior to Proposition No. 104, it could not logically have been the legislative purpose in referring Proposition No. 104 to the people to continue the office of State Auditor as an office of the Executive Department if a majority of the voters were in favor of Proposition No. 108 abolishing the office.

We do not thing it necessary to extend this decision by repeating the reasons and authorities expressed and cited in the dissent. We have re-examined the views there set forth and are satisfied that they are correct. This decision is rested on the principle that the dominant canon of constitutional interpretation is to arrive at the purpose of the constitutional enactment; that in arriving at the purpose where, as here, separate parts of a constitution are seemingly in conflict, it is the duty of the court to harmonize both so that the constitution is a consistent workable whole.

The two propositions are in conflict only if the language of Proposition No. 104 is literally applied in a vacuum without searching for the end sought to be attained. By the construction here placed upon the two amendments they can be made to stand together, and Proposition No. 108 is not stricken down as nugatory so that its submission to the people at the General Election in November was not a pointless act.

Counsel for the litigants have searched meticulously for authority and precedent both from this and other jurisdictions. We have examined those cited and others and while they are enlightening, we find none which deal with the same facts and circumstances found here. But even if it were possible to say that another jurisdiction had passed on the same problem contrary to our conclusions presented in this case, we would adhere to the views expressed, confident that constitutional principles properly applied support the result reached. In this a democratic society, we are irretrievably wedded to the principle that, subject to constitutional limitations, the will of the majority as expressed in free elections must prevail.

Since the people have abolished the State Auditor's office, we hold that Art. 5, § 1 has been amended by the adoption of Proposition No. 108 and No. 104 to read:

'Section 1. The Executive Department shall consist of Governor, Secretary of State, State Treasurer, Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for...

To continue reading

Request your trial
18 cases
  • Blawis v. Bolin
    • United States
    • U.S. District Court — District of Arizona
    • May 8, 1973
    ...art. V, § 1, the relevant figure presumably is that from the last election at which a governor was elected. Cf. State ex rel. Nelson v. Jordan, 104 Ariz. 193, 450 P.2d 383, appeal dismissed, 396 U.S. 5, 90 S.Ct. 24, 24 L.Ed.2d 4 4 Elfbrandt struck down the public employees' loyalty oath, Ar......
  • State ex rel. Collins v. Superior Court, In and For Maricopa County
    • United States
    • Arizona Supreme Court
    • January 7, 1982
    ...involving the public policy of the State of Arizona, re-examination of our previous decision is proper. See, State ex rel. Nelson v. Jordan, 104 Ariz. 193, 450 P.2d 383 (1969), appeal dismissed, Jordan v. Arizona ex rel. Nelson, 396 U.S. 5, 90 S.Ct. 24, 24 L.Ed.2d 4. See also basis for rehe......
  • Ruiz v. Hull
    • United States
    • Arizona Supreme Court
    • April 28, 1998
    ...must interpret the Amendment as a whole and in harmony with other portions of the Arizona Constitution. State ex rel. Nelson v. Jordan, 104 Ariz. 193, 196, 450 P.2d 383, 386 (1969); State ex rel. Jones v. Lockhart, 76 Ariz. 390, 398, 265 P.2d 447, 453 (1953). And, if possible, we must const......
  • Harvey v. Brewer
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 27, 2010
    ...it does not apply to disenfranchised felons, but only to those who are otherwise qualified to vote. See Arizona ex rel. Nelson v. Jordan, 104 Ariz. 193, 450 P.2d 383, 386 (1969) (when “separate parts of a constitution are seemingly in conflict, it is the duty of the court to harmonize both ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT