Warner v. White
| Decision Date | 23 November 1931 |
| Docket Number | Civil 3142 |
| Citation | 39 Ariz. 203,4 P.2d 1000 |
| Parties | JAMES E. WARNER, Plaintiff, R. L. LINTON, Intervener-Plaintiff, Appellants, v. SCOTT WHITE, Sectretary of State of the State of Arizona, Defendant, WM. M. BRAWNER, Intervener, Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and case remanded, with directions.
Mr. F C. Struckmeyer, Mr. E. S. Clark, and Mr. Mark B. Thompson for Appellant Linton.
Mr. K Berry Peterson, Attorney General, for Appellee Scott White.
Mr. L M. Laney, for Appellee Wm. M. Brawner.
Mr. W. L. Barnum, Amicus curiae.
In March of this year the legislature passed an act which is commonly referred to as Senate Bill No. 116 and is carried in the Session Laws of the tenth legislature as chapter 103. It contains fifty-eight sections, the first fourteen of which provide for a survey of all the property of the state for purposes of taxation and the remaining forty-four fix a method for the collection of delinquent taxes. As passed it did not state in a separate section or at all that it was necessary that it become immediately operative, so on May 28, 1931, there were offered to the Secretary of State, Scott White, for filing, petitions containing the names of nearly 10,000 qualified electors of the state ordering that the first fourteen sections of it be referred to the vote of the electors of the state for their rejection or approval at the next general election, and on June 11th thereafter petitions containing the names of 3,000 additional electors were offered, but notwithstanding only 5,000 names were required to invoke the referendum, the Secretary of State, acting upon the advice of the Attorney General that it was doubtful whether the measure was referable, declined to file the petitions until the courts should determine this question.
Thereupon James E. Warner, doing business as the Warner Delivery Service, procured an alternative writ of mandamus directing him to file the petitions or show cause why he had not done so and his response thereto was a demurrer and an answer, the ground of the former being that the petition of the plaintiff did not state facts sufficient to constitute a cause of action for the reason that the act -- the first fourteen sections of chapter 103 -- constitutes a law "for the support and maintenance of the departments of the State Government and State Institutions'' and is, therefore, expressly excepted from the referendum by the provisions of subdivision 3, § 1, art. 4, of the state Constitution. The answer raised the same question. Before the demurrer was argued the court granted the motion of Wm. M. Brawner for leave to intervene and he, too, demurred to the petition and answered further. Both demurrers were urged and at the completion of the argument sustained. Judgment was thereupon entered in favor of the defendant and the intervener and in it the court permanently enjoined the Secretary of State from placing the measure on the ballot at the next regular election upon the sole ground, as we gather from the record, that it was not referable. Following this the plaintiff, James E. Warner, gave notice of appeal to this court from the judgment but a few days later withdrew it. Upon this action's being taken by him the application of R. L. Linton to intervene was granted and from then on all proceedings in the case have been in his name as plaintiff-intervener. He immediately gave a second notice of appeal and thereafter performed what other acts were necessary to have the case reviewed by this court.
The only error he assigns is that the court erred in holding that the first fourteen sections of Senate Bill No. 116 are not referable, hence the only question presented by the appeal is the correctness of this ruling.
It is plain from a reading of the act -- and by this we mean the first fourteen sections of Senate Bill 116 -- that its passage was prompted by a legislative desire to provide for a full and complete survey of all the taxable property of the state, as a basis for a just and equitable system of taxation, to the end that the correct value of all taxable property in the state should be ascertained and placed on the tax rolls and the Corporation Commission furnished with the valuations of the holdings of public service and public utilities corporations for rate-fixing purposes. To conduct the survey the act creates a special tax survey commission composed of three members to be appointed by the Governor and confers upon it authority to appoint, fix the compensation and prescribe the duties of such experts, engineers, fieldmen, accountants, office assistants, clerks, stenographers and such other employees as may be required, and empowers it to do the things that are necessary to make a full and complete survey of all the property in the state. In order that it might have the funds to enable it to perform these various acts the bill appropriates them in this language:
It might be well to state that the ninth legislature had enacted a law, chapter 46, Session Laws 1929, commonly referred to as House Bill 127, to accomplish the same purpose and that those charged with the duty of carrying out its provisions made an effort to do so for the 1930 tax rolls but due to a lack of both time and funds were unable to accomplish more than to survey a part of the taxable property of the state, and for this reason what they did was held invalid and set aside. Oglesby v. Chandler, 37 Ariz. 1, 288 P. 1034. Nothing further was attempted under that act, however, and the tenth legislature repealed it, but to bring about the result it was intended to accomplish enacted Senate Bill 116, which is quite similar in its provisions, though it sets up a somewhat different machinery, allows more time and appropriates $250,000, instead of $30,000 as did House Bill 127.
The defendant and the intervener contend, and the trial court held, that due to the fact that Senate Bill 116 carries this appropriation and that its ultimate purpose is to aid the taxing department of the state in bringing about state-wide equalization of tax valuations, it is a law for the support and maintenance of a department of the state government and, therefore, could not in any event be subject to the referendum, in view of the provisions of subdivision 3, § 1, art. 4 of the state Constitution. This being true, they urge, it became operative at the expiration of ninety days from the close of the tenth legislature.
The position, upon the other hand, of appellant, and W. L. Barnum in his brief amicus curiae, is that it is not a law for the support and maintenance of a department of the state government within the meaning of this provision of the Constitution, for the reason that the department the appropriation was made to support and maintain was created by the act itself and had no existence prior to that time. While they state their view to be that an act appropriating money for the support and maintenance of an established department of the state government or a state institution is subject to the referendum the same as any other act, unless it be excepted therefrom in the manner provided, they do not argue this question at length but rely mainly on the other proposition. These respective contentions render necessary an understanding of the provisions upon which they are based; hence, we copy the first, second, and third subdivisions of section 1, article 4 of the Constitution. They read as follows:
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