State v. Osborne

• Decision Date: 15 July 1912
• Docket Number: Civil 1272
• Citation: 14 Ariz. 185,125 P. 884
• Parties: STATE OF ARIZONA, on Relation of H. A. DAVIS, Appellant, v. SIDNEY P. OSBORNE, as Secretary of State, Appellee
• Court: Arizona Supreme Court

125 P. 884

14 Ariz. 185

STATE OF ARIZONA, on Relation of H. A. DAVIS, Appellant, v. SIDNEY P. OSBORNE, as Secretary of State, Appellee

Civil No. 1272

Supreme Court of Arizona

July 15, 1912

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge.

Application by the State of Arizona, on relation of H. A. Davis, for injunction against Sidney P. Osborne, Secretary of State. Judgment for defendant, and plaintiff appeals. Reversed.

The facts are stated in the opinion.

Mr. W L. Barnum for Appellant.

Mr Lewis T. Carpenter, Assistant Attorney General, for Appellee.

OPINION

PER CURIAM.

In this action the question is submitted to the court whether an act of the legislature approved June 14, 1912, entitled "An act providing for general elections of representatives in Congress, of state, county, and precinct officers, and of presidential electors in the state of Arizona; providing for the method of canvassing the vote at said elections prescribing the method of contesting said elections; and fixing the time at which said elections shall be held" -- is repugnant to the constitution of the state of Arizona, and whether such election may be legally held on the first Tuesday after the first Monday in November, 1912, for the purposes designated in the act. In form the proceeding is an application for a writ of injunction to Sidney P. Osborne, Secretary of State, restraining him from transmitting notices in writing to the boards of supervisors of the several counties of the state under an act of the state legislature providing for a primary election for the nomination of candidates for elective public offices. The action was begun in the superior court of Maricopa county, a temporary injunction was issued, and on the final hearing the injunction was dissolved. The matter involving a question public juris of importance and general interest to the people of the state, it was brought before this court on appeal by an agreed case. It is conceded that the Secretary of State is proceeding to issue a call for a primary election for the nomination of candidates for elective public offices, including all state, county, and precinct offices, and if the act of the legislature, fixing the first Tuesday after the first Monday in November, 1912, for a general election for state, county, and precinct offices, is void as being repugnant to the state constitution, the action of the Secretary of State in the premises is illegal, and the judgment of the superior court should be reversed and the temporary injunction heretofore issued should be made permanent by order of this court.

It will be seen that the matter presented calls upon this court to perform its gravest function, that of looking at the language of an act written by delegated authority in the light of language written by the sovereign itself, and declaring which language shall speak authority, that of the representatives of the people, or that of the people themselves. It is a duty that this court will not shirk or evade. Its judges are sworn to support the constitution of the state of Arizona and faithfully and impartially discharge the duties of judge to the best of their ability. This duty we shall perform at all times while we have the honor to sit on the bench, against all encroachments from any source, but in a manner, we trust, befitting the highest tribunal of the state. It may be urged through sinister design or from selfish motives that this court should refuse to pass upon the matter presented for the reason that it is political and not a judicial question. We feel persuaded that no lawyer of standing at the bar would so assert on giving the matter consideration.

The superior courts have jurisdiction in all causes and of all proceedings in which jurisdiction shall not have been vested exclusively in some other court. The supreme court has appellate jurisdiction in all actions and proceedings except a civil action to recover money or property where the original amount in controversy does not exceed the sum of $200. Our courts are not divided into courts of equity and courts of common-law jurisdiction, as is the case in those jurisdictions whose authorities, if superficially considered, would lend color to the view that courts will not decide questions of a political nature. The jurisdiction in law and in equity under our scheme of government is blended in one court which may give appropriate judgment in all cases according to the law and the facts as they may arise.

The superior courts of the state are not limited to the ordinary injunction in equity, the scope and purpose of which is limited to matters involving property or civil rights; but the prerogative writ of injunction may be resorted to in all cases necessary to preserve the sovereignty of the state, its prerogatives and franchises. This matter is reviewed, and the distinction made is very clearly pointed out in Case Note, 3 L.R.A., N.S., 382 Matters pertaining to the election of public officers are the very highest prerogatives of the state, and no officer of the state may proceed in such matter without authority of law for his action.

The constitutionality of an act of the legislature, although it may determine the legality of holding an election and thereby have a political effect, is strictly a judicial question. For whether the act is within the limits of its delegated power or not is a strictly judicial question to be decided by the courts, and in no sense political. This principle is deducible from the authorities, and the doctrine was forcibly announced by the supreme court of the United States, speaking through Chief Justice Fuller, in the case of McPherson v. Blacker, 146 U.S. 1, 36 L.Ed. 869, 13 S.Ct. 3. Chief Justice Fuller said: "It is argued that the subject matter of the controversy is not of judicial cognizance, because it is said that all questions connected with the election of a presidential elector are political in their nature; that the court has no power finally to dispose of them; and that its decision would be subject to review by political officers and agencies, as the state board of canvassers, the legislature in joint convention, and the governor, or, finally, the Congress. . . . The question of the validity of this act, as presented to us by this record, is a judicial question, and we cannot decline the exercise of our jurisdiction upon the inadmissible suggestion that action might be taken by political agencies in disregard of the judgment of the highest tribunal of the state as revised by our own."

In State v. Cunningham, 81 Wis. 440, 505, 15 L.R.A. 561, 51 N.W. 724, it is said: "The truth is that the power of the respondent to notify elections is in no just sense whatever political; and, in view of the purely ministerial nature of his duty, it is a misuse of terms to assert that his power or duty is in any sense political. The act he is required, as a ministerial officer, to assist in executing by giving notice is the result of legislative power, and therefore, it may be said, of political power; but this does not make the act required of the respondent, in giving or refusing to give the notices, which is a mere consequence of the exercise of political power, a political act, so as to prevent judicial examination of his conduct in acting or refusing to act for that reason, if the law is void for conflict with the constitution. Were the case otherwise, no act of the legislature could be questioned for conflict with the constitution, because it could be said in any such case, as appropriately as in this, that the enactment of the law itself was an exercise of political power, and the court could not, therefore, examine it to determine whether it is in conformity with the constitution. Such a contention confounds all distinction between the law itself and mere ministerial acts done or required to be done under it." This case was followed and approved in State v. Cunningham, 83 Wis. 90, 35 Am. St. Rep. 27, 17 L.R.A. 145, 53 N.W. 35.

The duty thus devolved cannot be avoided, however unpleasant it may be. In the language of Chief Justice Marshall, "Those who fill the judicial department have no discretion in selecting the subjects to be brought before them." Worcester v. Georgia, 6 Pet. 541, 8 L.Ed. 483. And again the great Chief Justice spoke in Osborn v. Bank of United States, 9 Wheat. 866, 6 L.Ed. 204: "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are mere instruments of the law and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law."

The will of the law in the present case is the will of the people written into the fundamental law. Chief Justice Taney, in his last judicial utterance, said: "Any legislation by Congress beyond the limits of the power delegated would be trespassing upon the rights of the states Or the people, and would not be the supreme law of the land, but null and void, and it would be the duty of the courts to declare it so. For whether an act of Congress is within the limits of its delegated power or not is a judicial question to be decided by the courts." Gordon v. United States, 117 U.S. 705.

The three co-ordinate departments of the government -- the legislative, executive, and judicial -- must each move within its sphere; each must remain separate and distinct; it is so provided by...