Whitman v. Moore

• Decision Date: 04 May 1942
• Docket Number: Civil 4453
• Citation: Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (Ariz. 1942)
• Parties: W. R. WHITMAN, Appellant, v. HARRY M. MOORE, Individually, and as Secretary of State of the State of Arizona, Appellee
• Court: Arizona Supreme Court

125 P.2d 445

59 Ariz. 211

W. R. WHITMAN, Appellant, v. HARRY M. MOORE, Individually, and as Secretary of State of the State of Arizona, Appellee

Civil No. 4453

Supreme Court of Arizona

May 4, 1942

[Copyrighted Material Omitted][Copyrighted Material Omitted]

APPEAL from a judgment of the Superior Court of the County of Maricopa.Arthur T. LaPrade, Judge.Judgment affirmed.

Messrs Moeur & Moeur, and Mr. M. L. Ollerton, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. Earl Anderson, Special Assistant Attorney General, for Appellee.

Messrs. Cunningham & Carson, and Mr. Joseph T. Melczer, Jr., of Counsel, for Appellee.

OPINION

LOCKWOOD, C.J.

W. R. Whitman, plaintiff, brought suit in the superior court of Maricopa county, seeking to enjoin the secretary of state, defendant, from placing on the ballot at the general election a certain initiated measure relating to education, on the ground that, while the petitions requesting that such measure be placed on the ballot on their face contained the required number of names, they were insufficient in that so many of these names were not legally placed thereon, that the valid signatures fell below the constitutional minimum.

It was requested by plaintiff that a special master be appointed for the purpose of checking and investigating the sufficiency of these signatures, and the court issued an order appointing one, but declined to then enjoin the placing of the measure on the ballot pending the report of the master.The matter was brought before this court, and it was urged that it was impossible to check the petitions before the general election and that if the measure was placed upon the ballot and approved by the qualified electors, under the rule in Allen v. State,14 Ariz. 458, 130 P. 1114, 44 L.R.A. (N.S.) 468, notwithstanding that the petition was found to be insufficient, the case would be considered as moot for the reason that the electors had already approved the measure.We pointed out that the Allen case was based upon a situation where no attempt was made to question the sufficiency of the petitions before the election, and that since the present case was initiated as soon after the filing of the petitions as possible, we would not consider the question moot, even though it were not decided until after the election, and if it appeared that the measure had not been legally submitted, would hold that it had not become a part of the statutes, even though it had been approved by the voters at the election when it was submitted.At the election in November, 1940, the measure therefore appeared on the ballot and was approved by the electors by a very substantial majority.

The special master completed his investigation on January 27, 1941, and his findings were reported to the courtMarch 4 of that year.The report was approved and adopted as the findings of the court, and on May 28 it entered its written findings of fact and conclusions of law.The general effect of these was to disqualify several thousand signatures to the petitions as invalid, but there still remained thereon a sufficient number of legal signatures to comply with the constitutional requirements for submitting an initiative amendment to the statutes.Judgment was rendered for the defendant, and the matter is now before us on appeal.

The question is one of considerable importance, not only as it involves the particular initiated measure, but as providing a guide in all future cases involving the sufficiency of initiative, referendum, recall and, perhaps, nomination petitions.For this reason, we discuss the question, both generally and specifically, at some length.

The Act providing for the admission of Arizona into the Union was adopted June 20, 1910.By its terms it was the duty of the qualified electors of the territory to select a constitutional convention for the purpose of forming a Constitution for the proposed State of Arizona.Shortly before this time the general principle of that method of popular government known as the initiative and referendum had been adopted by several states, and the question of whether Arizona should follow their example or retain the old method of legislation exclusively by the legislature was a burning issue in this state.It is a notorious fact that the choice of delegates to the constitutional convention was fought out primarily upon this issue.The result favored the advocates of this method of popular government, and the records of the constitutional convention, together with the language of the new Constitution, show clearly that it was the opinion of the delegates who adopted and signed it that its provisions setting forth these principles were among the most important to be found therein.When the instrument was submitted to the voters for ratification, that issue was again the principal one before them and the Constitution was ratified by a very large percentage of the votes cast.Whether the attitude of the convention and the voters was wise is not for this court to say, but we are bound to take that attitude into consideration in determining the construction to be given to these provisions.The particular portions of the Constitution involved in the present case are subdivisions 1, 2, 6, 9 219 [59 Ariz. 219] and 15, section 1, part 1 of article 4, andsection 32 of article 2.They read as follows:

"§ 1.(Initiative and referendum.)-- (1)(Legislative authority.)The legislative authority of the state shall be vested in a legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature.

"(2)(Initiative.) The first of these reserved powers is the Initiative.Under this power ten per centum of the qualified electors shall have the right to propose any measure, and fifteen per centum shall have the right to propose any amendment to the constitution."

"(6)(Veto.) The veto power of the governor, or the power of the legislature, to repeal or amend shall not extend to initiative or referendum measures approved by a majority vote of the qualified electors."

"(9)(Procedure in filing petitions.)Every initiative or referendum petition shall be addressed to the secretary of state in the case of petitions for or on state measures, and to the clerk of the board of supervisors, city clerk, or corresponding officer in the case of petitions for or on county, city, or town measures; and shall contain the declaration of each petitioner, for himself, that he is a qualified elector of the state(and in the case of petitions for or on city, town, or county measures, of the city, town, or county affected), his post-office address, the street and number, if any, of his residence, and the date on which he signed such petition.Each sheet containing petitioners' signatures shall be attached to a full and correct copy of the title and text of the measure so proposed to be initiated or referred to the people, and every sheet of every such petition containing signatures shall be verified by the affidavit of the person who circulated said sheet or petition, setting forth that each of the names on said sheet was signed in the presence of the affiant and that in the belief of the affiant each signer was a qualified elector of the state, or in the case of a city, town, or county measure, of the city, town, or county affected by the measure so proposed to be initiated or referred to the people."

"(15)(Section to be self-executing.)This section of the constitution shall be, in all respects, self-executing."

"§ 32.(Constitution to be mandatory.)-- The provisions of this constitution are mandatory, unless by express words they are declared to be otherwise."

It is, of course, a mere platitude to say that the people are the supreme power in our system of government.The history of our Constitution and its adoption, to which we have previously referred, shows beyond the possibility of contradiction that the people themselves deliberately and intentionally announced that, by its adoption, they meant to exercise their supreme sovereign power directly to a far greater extent than had been done in the past, and that the legislative authority, acting in a representative capacity only, was in all respects intended to be subordinate to direct action by the people.We, therefore, think that when there is any doubt as to the requirements of the Constitution going only to the form and manner in which the power of an initiative should be exercised, every reasonable intendment is in favor of a liberal construction of those requirements and the effect of a failure to comply therewith, unless the Constitution expressly and explicitly makes any departure therefrom fatal.

A number of the states have adopted constitutional provisions based upon the same general principle of popular government, and they have been before the courts of the respective states repeatedly for construction on one point or another.The decisions on specific questions are in some conflict, but we think a careful reading and analysis of all these opinions show that, with few exceptions, they follow the general rule of construction.As was said by the Supreme Court of Oklahoma in Re Initiative PetitionNo. 23, 35 Okl. 49, 127 P. 862, 866:

" The right of direct legislation in the people must be administered by the officers charged with that duty in such manner as to make it operative.If technical restrictive constructions are placed upon the laws governing the...