Strode v. Sullivan

• Decision Date: 03 October 1951
• Docket Number: No. 5592,5592
• Citation: 72 Ariz. 360,236 P.2d 48
• Parties: STRODE et al. v. SULLIVAN, City Clerk, City of Phoenix.
• Court: Arizona Supreme Court

Page 48

236 P.2d 48

72 Ariz. 360

STRODE et al. v. SULLIVAN, City Clerk, City of Phoenix.

No. 5592.

Supreme Court of Arizona.

Oct. 3, 1951.

W. H. Chester, of Phoenix, for petitioners.

Laurence H. Whitlow, City Atty., Jack D. H. Hays, Asst, City Atty., of Phoenix, for respondent.

LA PRADE, Justice.

This is an original proceeding in mandamus commenced by the petitioners, qualified electors of the City of Phoenix, for themselves and in behalf of others similarly situated. The purpose of the proceeding is to compel the respondent, Tom Sullivan, Jr., in his capacity as City Clerk of the City of Phoenix, to accept certain petitions which the petitioners had theretofore attempted to lodge with the city clerk for the purpose of creating a new political party to be called 'The Democratic Party of the City of Phoenix', and have such party designated on the official ballots. It is alleged that these petitions were authorized and prepared in conformity with the provisions of chapter 97, Session Laws of Arizona, 1947, entitled:

'An Act Relating To Elections; Providing For The Recognition Of New Political Parties, And Amending Section 55-1006, Arizona Code Of 1939.'

This section, as amended, in part reads as follows:

'55-1006. New Political Parties. (a) A political organization which, at the last preceding general election, cast for its candidates for state office, or for any county or city office, not less than five per cent of the total votes cast in the state or in such county or city, shall be entitled to representation as a political party on the official ballot for state officers, or of such county or local subdivision. (Emp.sup.)

'(b) A new political party shall become eligible for recognition and shall be represented by an official party ballot at the next ensuing general primary election and accorded a column on the official ballot at the succeeding general election * * *.

'(c) A new political party shall become eligible for recognition and shall be represented by an official party ballot at the next ensuing primary election of a county or city and be placed on the official ballot at the succeeding regular election upon filing with the clerk of the board of supervisors or the city clerk of such county or city a petition signed by a number of qualified electors equal to not less than three per cent of the votes cast for county attorney in the case of a county petition, or for mayor in the case of a city petition. * * * (Emp.sup.) '(d) Any petition for the recognition of a new political party shall be filed not less than thirty nor more than sixty days prior to the primary election.'

The petition for the writ further alleges that their petition for the creation of a new political party in the city of Phoenix contains signatures of a sufficient number of qualified electors; that it is the duty of respondent to examine the signatures and to make certification thereof, and to cause said new political party to be designated and printed upon the regular ballot for the ensuing regular primary election to be held in the city of Phoenix in the month of November; and, that the respondent refused and still refuses to accept and file the petition and refused and still refuses to certify the creation of the new political party.

Respondent filed a motion to dismiss the petition for the writ upon the ground that as a matter of law the writ should not issue in that by the provisions of chapter 12 of the Charter of the city of Phoenix relating to elections to be conducted by the city of Phoenix, primary, general or special, '* * * The names of the candidates for each office shall be arranged as provided by law for nothing on the ballot shall be indicative of the source of the candidacy or the support of any candidate.' Ch. XII, sec. 9, Charter, City of Phoenix.

Phoenix has a 'freeholders" or 'home rule' charter in effect since 1914. Section 2 of article 13 of the state constitution provides that the electors of a city of more than thirty-five hundred population 'may frame a charter for its own government consistent with, and subject to, the constitution and the laws of the state'; that when ratified at an election and approved by the Governor such charter 'shall become the organic law of such city and supersede any charter then existing (and all amendments thereto), and all ordinances inconsistent with said new charter.' Freeholders' charters are not uncommon in this state and this court has on many occasions been called upon to interpret these charters. In the case of Mayor & Common Council of City of Prescott v. Randall, 67 Ariz. 369, 196 P.2d 477, 478, there was under consideration the charter of the city of Prescott. In this case, we made a partial compilation of our cases construing city charters, and there said: 'The rule established in all of these cases is that a charter city is sovereign in all of its 'municipal affairs' where the power * * * to be exercised has been specifically or by implication granted in its charter.'

It is respondent's position (1) that there is no constitutional or statutory provision in force in this state which commands that officers for cities incorporated under special charters shall be nominated or elected under a party designation notwithstanding that the charter of the city of Phoenix specifically provides that 'nothing on the ballot shall be indicative of the source of the candidacy or the support of any candidate.' (2) that none of the provisions and amendments thereto of chapter 55, A.C.A.1939, relating generally to elections for state, county and city offices, have any application to the city of Phoenix except insofar as some of the state procedures have been specifically adopted by the charter of the city of Phoenix or ordinances adopted thereunder.

In seeking this writ, it is the theory of petitioners that article 7, section 10 of the Constitution and implementing legislation, Ch. 55, A.C.A.1939, enacted for the purpose of vitalizing the same, clearly show that it was the intention of the framers of the Constitution that the voters in nominating candidates in all elections for state, county and city offices shall have the privilege of exercising their choice through a mandatory primary system and through political parties; that in view of the provisions of sections 55-1005, 55-1006 and 55-1024, A.C.A.1939, the matter of nominating candidates for city offices is of such state concern that where there is a conflict between the provisions of the charter of a self-governed city and the statutory law, the former must give way to the latter. If the matter of selecting officers for charter cities can be said to be a subject of state concern, then we think the rule suggested states a correct principle of the law but in our opinion not applicable to the case under consideration. The constitutional provision which it is claimed makes the partisan primary system a matter of state concern, Article 7, section 10, supra, reads as follows: 'The legislature shall enact a direct primary election law, which shall provide for the nomination of candidates for all elective state, county, and city offices, including candidates for United States senator and for representative in congress.' The first legislature immediately after statehood and several subsequent legislatures sought to give effect to this constitutional mandate. Several of these acts of the legislature have been called to our attention but in the view we take of the law the case does not turn so much upon the construction to be placed upon the statutory provisions as it does upon the settled construction which this court has placed upon section 2, article 13, Constitution, supra, which, in part, provides that 'Any city containing, now or hereafter, a population of more than three thousand five hundred may frame a charter for its own government consistent with, and subject to, the constitution and the laws of the state * * *.' (Emp.sup.)

This provision conferring upon a qualified city power to frame a charter for its own government is not an enabling act conferring carte blanche authority or plenary power to adopt any legislation that it might desire. There is a restriction that any charter provisions adopted must be 'consistent with, and subject to, the constitution and the laws of the state'. The Supreme Court of Oklahoma has had occasion to consider and construe this identical constitutional limitation upon the power of charter cities in the matter of framing a charter for their own government.

In the City of Wewoka v. Rodman, 172 Okl. 630, 46 P.2d 334, 335, it is said: 'We believe that the charter should be construed in accordance with the well-settled construction of the authorizing provision of the Constitution, remembering that 'subject to,' 'restrained by,' and 'consistent with' in this connection have identical meanings. In the leading case of Lackey v. State [ex rel. Grant] 29 Okl. 255, 116 P. 913, 915, the contention was made that the constitutional requirement that the charter should be 'consistent with and subject to the Constitution and laws of the state' rendered invalid every provision of the charter in conflict with any statute of the state, whether pertaining to the general affairs of the state or to matters purely municipal. This court refused to accept this interpretation, and held that the intention was not to require the charter to conform to every statutory provision, but only to those that were not confined to purely municipal affairs. The principle so announced has never been departed from, and applies with equal force to the interpretation of the Wewoka charter. We conclude that the intent of the charter provision in question was the same as that of the Constitution, to wit, to make the provision in question subject to any provision of the state law, that goes beyond purely municipal affairs. * * *'

We believe that the foregoing interpretation and construction is entirely applicable to our own...