State ex rel. Nelson v. Jordan
| Citation | 449 P.2d 18,104 Ariz. 90 |
| Decision Date | 31 December 1968 |
| Docket Number | No. 9480,9480 |
| Parties | STATE of Arizona ex rel. the Attorney General, Gary K. NELSON, Petitioner, v. Jewel W. JORDAN, Respondent. |
| Court | Supreme Court of Arizona |
Gary K. Nelson, Atty. Gen., for petitioner.
R. G. Langmade, Phoenix, for respondent.
The State of Arizona, upon the relation of Gary K. Nelson, The Attorney General, brings this original action in quo warranto, asking that this Court adjudge the respondent The Twenty-first Legislature in 1968 adopted House Concurrent Resolution 1, and Senate Concurrent Resolution 6 each proposing to amend the Arizona Constitution, and reading respectively as follows:
Jewel W. Jordan not entitled to hold or enjoy the office of State Auditor, and that a judgment of ouster be entered against her.
'HOUSE CONCURRENT RESOLUTION 1
'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.
'Be it resolved by the House of Representatives of the State of Arizona, the Senate concurring:
'1. The following amendments of sections 1, 6 and 9 of article 5, Constitution of Arizona, are proposed, to become valid when approved by a majority of the qualified electors voting thereon and upon proclamation of the governor:
'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 persons, respectively, having the highest number of votes cast for the office voted for shall be elected, but if two or more persons shall have an equal and the highest number of votes for any one of said offices, the two Houses of the Legislature at its next regular session shall election forthwith, by joint ballot, one of such persons for said office.
'The officers of the Executive Department during their terms of office shall reside at the seat of government where they shall keep their offices and the public records, books, and papers. They shall perform such duties as are prescribed by the Constitution and as may be provided by law.
'Section 6. In the event of the death of the Governor, or his resignation, removal from office, or permanent disability to discharge the duties of the office, the Secretary of State, if holding by election, shall succeed to the office of Governor until his successor shall be elected and shall qualify. If the Secretary of State be holding otherwise than by election, or shall fail to qualify as Governor, the Attorney General, the State Treasurer, or the Superintendent of Public Instruction, if holding by election, shall, in the order named, succeed to the office of Governor. The taking of the oath of office as Governor by any person specified in this section shall constitute resignation from the office by virtue of the holding of which he qualifies as Governor. Any successor to the office shall become Governor in fact and entitled to all of the emoluments, powers and duties of Governor upon taking the oath of office.
'In the event of the impeachment of the Governor, his absence from the State, or other temporary disability to discharge the duties of the office, the powers and duties of the office of Governor shall devolve upon the same person as in case of vacancy, but only until the disability ceases.
'Section 9. The powers and duties of Secretary of State, State Treasurer, Attorney-General, and Superintendent of Public Instruction shall be as prescribed by law.
'2. The proposed amendments (approved by a majority of the members elected to each house of the legislature, and entered upon the respective journals thereof, together with the ayes and nays thereon) shall be by the secretary of state submitted to the qualified electors at the next regular general election (or at a special election called for that purpose), as provided by article 21, Constitution of Arizona.
'Passed the House February 26, 1968 by the following vote: 31 Ayes, 22 Nays, 7 Not Voting.
'Passed the Senate March 12, 1968 by the following vote: 17 Ayes, 12 Nays, 1 Not Voting.
'Approved by the Governor--March 13, 1968
'Filed in the Office of the Secretary of State--March 13, 1968
'SENATE CONCURRENT RESOLUTION 6
'A CONCURRENT RESOLUTION
'PROPOSING AN AMENDMENT OF THE CONSTITUTION OF ARIZONA RELATING TO THE EXECUTIVE DEPARMENT; 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.
'Be it resolved by the Senate of the State of Arizona, the House of Representatives concurring:
'1. The following amendment of article 5, section 1, Constitution of Arizona, is proposed, to become valid when approved by a majority of the qualified electors voting thereon and upon proclamation of the governor:
Section 1. Executive department; state officers; terms; election; residence and office at seat of government; duties
'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.
'The persons, respectively, having the highest number of votes cast for the office voted for shall be elected, but if two or more persons shall have an equal and the highest number of votes for any one of said offices, the two Houses of the Legislature at its next regular session shall elect forthwith, by joint ballot, one of such persons for said office.
'The officers of the Executive Department during their terms of office shall reside at the seat of government where they shall keep their offices and the public records, books, and papers. They shall perform such duties as are prescribed by the Constitution and as may be provided by law.
'2. The proposed amendment (approved by a majority of the members elected to each house of the legislature, and entered upon the respective journals thereof, together with the ayes and nays thereon) shall be by the secretary of state submitted to the qualified electors at the next regular general election (or at a special election called for that purpose), as provided by article 21, Constitution of Arizona.
'Passed the House March 21, 1968 by the following vote: 33 Ayes, 16 Nays, 11 Not Voting.
'Passed the Senate March 21, 1968 by the following vote: 16 Ayes, 11 Nays, 3 Not Voting.
'Filed in the Office of the Secretary of State--March 21, 1968'
Thereafter the full texts of the resolutions were printed in the official publicity pamphlet in conformity with A.R.S. § 19-123.
Both resolutions were submitted to the electors at the general election of November 5, 1968, the Senate Resolution appearing on the ballot as Proposition 104 and the House Resolution as Proposition 108. According to the official canvass both resolutions were carried by a majority of the votes cast, but The propositions appeared on the ballot in the following form:
Proposition 104 received 266,035 affirmative votes to 129,991 negative, and Proposition 108 received 206,432 affirmative, 171,474 negative. On December 4, 1968, the Governor issued a proclamation declaring both amendments to be law.
HOUSE CONCURRENT RESOLUTION 1
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.
(SUMMARY)
Amending Sections 1, 6 and 9 of Article 5 of the Constitution of Arizona, thereby abolishing the office of the State Auditor.
If you favor the above law, vote YES; if opposed, vote NO.
NO
YES
REFERENDUM ORDERED BY PETITION OF THE PEOPLE
SENATE CONCURRENT RESOLUTION 6
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.
(SUMMARY)
Amending Section 1 of Article 5 of the Constitution of Arizona by changing from two years to four years the terms of the Governor, Secretary of State, State Auditor, State Treasurer, Attorney General and Superintendent of Public Instruction, beginning January, 1971.
If you favor the above law, vote YES; if opposed, vote NO.
YES
The Attorney General of the State, in the application for a Writ of Quo Warranto, claims that both of the amendments are effective, that the office of the State Auditor has been abolished, and that upon the proclamation of the Governor the office no longer exists. The respondent Auditor on the other hand maintains that Proposition 104 specifically provides that the State Auditor shall be a part of the Executive Department with a term of office for four years after the first Monday in January 1971 while Proposition 108 eliminated the State Auditor from the Executive Department, and provided that the officer should hold office for two years, effective on the first Monday of January next after the election, and therefore are in conflict.
Article 21, Arizona Constitution, A.R.S., sets forth the mode of amending the Constitution. It reads as follows:
1. Introduction in legislature; initiative petition; election.
2. Convention.
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State ex rel. Nelson v. Jordan, 9480
...took her oath of office on January 6, 1969. We re-emphasize the principles set forth in our former opinion, State ex rel. Nelson v. Jordan, 104 Ariz. 90, 449 P.2d 18, and our judgment based thereon. There is little cause to repeat the reasoning of that There is nothing new presented either ......
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...Slayton v. Shumway, 166 Ariz. 87, 800 P.2d 590 (1990); Tilson v. Mofford, 153 Ariz. 468, 737 P.2d 1367 (1987); State ex rel. Nelson v. Jordan, 104 Ariz. 90, 449 P.2d 18 (1968), vacated, 104 Ariz. 193, 450 P.2d 383, appeal dismissed, 396 U.S. 5, 90 S.Ct. 24, 24 L.Ed.2d 4 (1969); State ex rel......
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