APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Mr. Isaac Barth, for Appellant.
Mr. K. Berry Peterson, Attorney General, and J. R. McDougall, Assistant Attorney General, for Appellee.
Messrs. Elliott & Lewis, Amicus Curiae.
[40 Ariz. 549] LOCKWOOD, J.
Isaac Barth, hereinafter called plaintiff, brought suit in the superior court of Maricopa County against Scott White, as Secretary of State of the state of Arizona, hereinafter called defendant, for the purpose of enjoining the latter against placing on the ballot at the general election to be held in November, 1932, a constitutional amendment proposed by the initiative petition of some 22,000 qualified electors of the state of Arizona. defendant [40 Ariz. 550] demurred to the complaint generally, which demurrer was by the court sustained, and, plaintiff electing to stand on his complaint, the case was ordered dismissed, and an appeal has been taken from such judgment and order of dismissal.
The first point which we have to consider is as to the plaintiff's right to maintain an action of this nature. He claims this is expressly authorized by section 1744, Revised Code of 1928, which reads as follows:
"§ 1744. Mandamus to compel secretary of state to file; injunction to restrain; venue. If the secretary of state shall refuse to accept and file any petition for the initiative or for the referendum or proposal for a constitutional amendment which has been presented within the time prescribed, any citizen may apply, within ten days after such refusal, to the superior court for a writ of mandamus to compel him to do so. If the court find that such petition is legally sufficient, the secretary shall then file it, with a certified copy of the judgment attached thereto, as of the date on which it was originally offered for filing in his office; if any petition filed is not legally sufficient, the court may enjoin the secretary or other officers from certifying or printing on the official ballot for the ensuing election the measure proposed or referred. Such actions shall be advanced on the docket and heard and decided by the court as quickly as possible. Either party may appeal to the supreme court within ten days after judgment. The superior court of Maricopa county shall have jurisdiction in all measures to be submitted to the electors of the state at large; in cases of local and special measures, the superior court of the county, or of one of the counties in which such measures are to be voted upon, shall have jurisdiction."
It is contended by defendant that, while a private citizen may compel by mandamus the placing of an initiated measure on the ballot, the same right is not extended to him when it is a question of keeping one [40 Ariz. 551] off, and that the Attorney General, acting on behalf of the state itself, is the only person who can maintain the latter action. In support of this contention we are cited to the cases of Friendly v. Olcott, 61 Or. 580, 123 P. 53; State v. Olcott, 62 Or. 277, 125 P. 303; State ex rel. Carson v. Kozer, 126 Or. 641, 270 P. 513.
We have previously held in the case of State v. Osborn, 16 Ariz. 247, 143 P. 117, that our Constitution is similar to the states of Oklahoma and Oregon in so far as initiative provisions are concerned, and the statute existing in Oregon, and covering situations similar to that in the case at bar, at the time of the decisions above quoted, was almost identical in form with section 1744, supra. Such being the case, the Oregon decisions would be extremely persuasive to us in a construction of our statute. They are not, however, necessarily absolutely binding. Kingsbury v. State, 28 Ariz. 86, 235 P. 140; Burnham-Munger Root D.G. Co. v. Strahl, 102 Neb. 142. 166 N.W. 266; Barkley v. Pool, 103 Neb. 629, 173 N.W. 600; Davis Iron Works Co. v. White, 31 Colo. 82, 71 P. 384; Jamison v. Burton, 43 Iowa 282; Com. v. Hartnett, 3 Gray (Mass.) 450.
The Oregon court holds that the remedy by mandamus is available to the citizen, while that by injunction is not, and apparently bases the distinction on the theory that the right to proceed by mandamus is expressly given to the citizen while that by injunction is at most inferential, and that, since the action is political in its nature rather than one involving property in civil rights, the ordinary chancery jurisdiction of the court will not be extended beyond the express terms of the statute.
The Supreme Court of Nebraska in the case of Barkley v. Pool, supra, in construing a local statute which is very similar to the Oregon one, had the [40 Ariz. 552] same contention made to it, that, since Nebraska had adopted the Oregon statute, it was bound by the construction placed by the Supreme Court of Oregon upon its statute in Friendly v. Olcott, supra. Replying to this contention, the court said:
". . . This court is not irrevocably committed to that rule. In Burnham-Munger Root Dry Goods Co. v. Strahl,102 Neb. 142, 166 N.W. 266, in ...