State ex rel. La Prade v. Cox

• Decision Date: 24 February 1934
• Docket Number: Civil 3486
• Citation: 43 Ariz. 174,30 P.2d 825
• Parties: THE STATE OF ARIZONA ex Rel. ARTHUR T. LA PRADE, Attorney General, Plaintiff, v. WILLIAM M. COX, as State Treasurer of the State of Arizona, Respondent
• Court: Arizona Supreme Court

30 P.2d 825

43 Ariz. 174

THE STATE OF ARIZONA ex Rel. ARTHUR T. LA PRADE, Attorney General, Plaintiff, v. WILLIAM M. COX, as State Treasurer of the State of Arizona, Respondent

Civil No. 3486

Supreme Court of Arizona

February 24, 1934

Original proceeding in Mandamus. Peremptory writ ordered issued.

Mr Arthur T. La Prade, Attorney General, and Mr. Chas. L Strouss and Mr. Frank W. Beer, Assistant Attorneys General for Plaintiff.

Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Respondent.

OPINION

LOCKWOOD, J.

This is an original proceeding in this court by the state of Arizona, on the relation of its Attorney General, hereinafter called petitioner, asking for a writ of mandamus against William M. Cox, as treasurer of the state, hereinafter called respondent, to compel him to countersign certain tax anticipation bonds, duly authorized by a resolution of the loan commissioners of the state. The respondent answered, setting up certain facts, and petitioner demurred to the answer as being insufficient. The legal question before the court is whether petitioner's demurrer should be sustained.

There is no dispute as to the facts, and the real issue is as to whether or not chapter 16 of the Session Laws of 1933 is a valid enactment or not, for, if it is, there is no doubt it is the imperative duty of respondent to sign the bonds in question. The validity of the chapter is attacked on the ground that it was not constitutionally adopted. In order to determine this question, it is necessary that we recite briefly certain facts in regard to its passage.

The original act, on file in the office of the Secretary of State, is entitled:

"An Act to permit the issuance of bonds in anticipation of the collection of state taxes; to authorize such bond issue for the last half of the year 1932, all of the year 1933, and the first half of the year 1934; and declaring an emergency."

Then follow eight sections setting forth the circumstances under which, and the manner in which, tax anticipation bonds may be issued. Section 9 of the act is the ordinary repealing clause of previous laws, and section 10 thereof reads as follows:

"To preserve the public peace, health and safety, it is necessary that this act shall become immediately operative. It is therefore declared to be an emergency measure, and shall take effect upon its passage in the manner provided by law."

The journals of the house and senate show that the bill first passed the house by a vote of 53 ayes to 0 nays, was amended by the senate and passed, as amended, by a vote of 13 ayes to 6 nays, went to conference twice, and the report of the last conference committee was adopted by the senate by a vote of 19 ayes and 0 nays, and by the house by a vote of 42 ayes and 12 nays.

It is the contention of respondent (a) that the act contains an emergency clause, and that the journal of the house shows it did not receive two-thirds of the votes of all the members elected thereto, so that it could not become effective as an emergency measure; and (b) that, since on its face it carried the emergency clause, under no circumstances could it become effective as an ordinary measure ninety days after it was signed by the Governor. In support of this position respondent cites the recent case of Cox v. Stults Eagle Drug Co., 42 Ariz. 1, 21 P.2d 914, 917. The facts in the present case are identical with those arising in the case just cited, and the points of law involved are the same.

There is no question, if this court adheres to the rules of law laid down in that case, that chapter 16, supra, is ineffective for any purpose, for therein we held that a measure carrying an emergency clause must receive a vote of two-thirds of all the members elected to each house of the legislature, not merely on its original passage by each house, but upon any amendments which might be added by one house after it had passed the other. In other words, that the constitutional two-thirds majority was required for the bill in its final form as it went to the Governor. We also held explicitly that, even though the bill did receive the votes of a majority of the members elected to each house, since it carried the emergency clause on its face, under no circumstances, and in no manner, could it become effective as an ordinary measure.

The petitioner does not question the ruling of the court in Cox v. Stults, supra, so far as it determines that chapter 16, supra, did not take effect as an emergency measure, and that the journals of the legislature are admissible as evidence, and, indeed, conclusive as to what the actions of the house and senate on the chapter actually were, but it contends that the holding that a bill which took the course in the legislature which was taken by chapter 16 does not take effect as an ordinary measure ninety days after the adjournment of the legislature is unsupported by authority and unsound in reason.

The reasoning of the majority opinion on this point is based upon two points. The first is the exact language of the Constitution in subsection 3, section 1, part 1, article 4, which provides that " . . . no such emergency measure shall be considered passed by the Legislature unless it shall . . . be approved by the affirmative votes of two-thirds of the members elected to each House of the Legislature, taken by roll call of ayes and nays. . . . "

The court, after quoting this language, proceeds to say:

" . . . If this provision read that 'no such measure shall be considered passed as an emergency,' the contention of appellants, that it would become operative ninety days after the close of the session, might have merit, but inasmuch as it uses the all-inclusive term, 'no such emergency measure,' when referring to those not considered passed without the two-thirds vote, there is nothing more to say. . . . "

It is the general rule that, because Constitutions are for the purpose of laying down broad general principles, and not the expression of minute details of law, their terms are to be construed liberally, for the purpose of giving effect to the general meaning and spirit of the instrument, rather than as limited by technical rules of grammar. Cohens v. Virginia, 6 Wheat. 262, 5 L.Ed. 257; Gherna v. State, 16 Ariz. 344, 146 P. 494, Ann. Cas. 1916D 94. This court, in Clark v. Boyce, 20 Ariz. 544, 185 P. 136, 140, says:

"The prime effort in construing Constitutions or statutes is to ascertain the intention of those who framed them, and 'to give effect to the intention therein expressed when such intention can be collected therefrom, words may be modified, altered or supplied so as to obviate any repugnancy to or inconsistency with such intention, although in so doing particular provisions may not be read or construed according to their literal meaning.' . . . "

On a careful reading and comparison of all the provisions of the Constitution dealing with the referendum and the enactment of legislation, their purpose is obvious. It is to allow the people to have the right to review the action of the legislature on any act which is passed by the usual simple majority of both houses and signed by the Governor. In order to do this, it is provided that such an act shall not take effect until ninety days after the legislature has adjourned, thus giving ample opportunity for the voters to study it, and, if they desire, to require that it be submitted to them at the next general election, for their approval or disapproval. The makers of the Constitution, realizing, however, that some necessity might arise, which would require a law to take effect immediately, have provided a special manner in which this need can be met. It is by the use of the so-called "emergency clause." It will be observed that this emergency clause never affects in any manner the substance of the proposed law. It refers only to the time when it shall take effect. It would seem, then, that when the legislature has observed every constitutional provision in regard to the substance of a law, but has failed to comply with one which relates to nothing but the time the law shall take effect, the spirit of the Constitution would be obeyed by holding that the measure is valid as an ordinary law, because every requisite of such a law has been fully carried out, but that it shall not take effect immediately, because the constitutional provisions which authorize such a result have not been followed.

The second point in the majority opinion is that "members frequently support measures containing the emergency clause when they would not do so without it." We think while it is obvious that a member of the legislature, who believed in the principle of a bill, and was willing to vote for it on its merits, might not be willing to take from the people the right to review his action, it would be rare, indeed, that a member, who was so thoroughly convinced of the vital necessity of a measure that he was willing, not only to support it on its merits, but also to remove it from the referendum provision of the Constitution, would not be willing to support it as an ordinary measure, on the theory that "half a loaf was better than no bread."

There are no cases cited in Cox v. Stults supra, in support of the majority opinion on the point under discussion, while there is a wealth of authority which upholds the contrary view. This court itself has held against the rule laid down therein, in the case of Santa Cruz County v. McKnight, 20 Ariz. 103, 177 P. 256, 259. In that case, the question of when chapter 80 of the Session Laws of 1917 took effect was before the court. This chapter carried the emergency clause, and received the necessary number of votes to make it effective as an emergency measure, if it were not vetoed by the...