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Barrows v. Garvey

Supreme Court of Arizona

May 24, 1948

BARROWS
v.
GARVEY, Secretary of State

Original proceedings in mandamus by Earle F. Barrows against Dan E. Garvey, as Secretary of State of the State of Arizona, to compel defendant to remove and delete from a notice prepared by him the names of the offices of justice of the peace and constables of the several justice precincts of Maricopa county.

Alternative writ made peremptory.

Snell, Wilmer, Walsh & Melczer, of Phoenix, for petitioner.

Evo De Concini, Atty. Gen., Fred O. Wilson, Asst. Atty. Gen., and Edward Jacobson, Asst. Atty. Gen., for respondent.

Udall, Justice. Stanford, C. J. and La Prade, J., concur.

OPINION

Udall, Justice.

[67 Ariz. 204] The Seventeenth Legislature, in regular session assembled, amended Sec. 17-504, A.

Page 914

C.A. 1939, entitled "Precinct officers," by purportedly extending the term of office of Justices of the Peace and Constables from two to four years. Laws 1945, ch. 69, sec. 1. The matter before us raises but one question and that is as to constitutionality and legality of this enactment.

Earle F. Barrows (hereinafter termed petitioner), as a resident citizen, qualified elector and taxpayer of Maricopa County, Arizona, filed a petition for writ of mandamus seeing to compel respondent, Dan E. Garvey, as Secretary of State, to remove and delete from the notice prepared by him (pursuant to the provisions of Sec. 55-1002, A.C.A. 1939) the names of the offices of Justice of the Peace and Constables of the several Justice Precincts of Maricopa County as being offices for which candidates are to be nominated at the primary election to be held September 7, 1948. It is the contention of petitioner that at the general election held in 1946 such officers were elected for a term not expiring until January 1, 1951.

As the matter involved a question of publici juris of importance and general interest requiring a speedy determination we assumed original jurisdiction.

The office of constable was not created by the Constitution, nor is the term thereof prescribed by the Constitution. Since the office of constable is created by statute, the term is wholly within the control of the legislature. Constitution of Arizona; 46 C.J. Sec. 100, p. 964; 43 Am.Jur., Public Officers, Sec. 151. Hence as to the office of constable the amendment of Sec. 17-504, supra, is a valid enactment unless, as contended by respondent, the two offices (justice of peace and constable) are so entwined, with no severability clause, that if the statute be declared invalid as to the justices that portion with reference to the constables must fall with it. This upon the theory that where one part of a statute is held to be of no effect as being unconstitutional, the whole statute will be ineffectual if the remaining sections would make little sense in expressing the intent of the legislature. Sellers v. Frohmiller, 42 Ariz. 239, 24 P.2d 666; Powell v. Gleason, 50 Ariz. 542, 74 P.2d 47, 114 A.L.R. 838; Miners and Merchants Bank v. Board of Supervisors, 55 Ariz. 357, 101 P.2d 461.

The law is of course well-settled that if the term of an officer is prescribed by the constitution the legislature is powerless to change it.

"Legislative Power to Shorten or Lengthen Term. -- There is no doubt of the power of the legislature which creates an [67 Ariz. 205] office to abolish it or to change it, and the legislature may shorten or lengthen the term of the office itself, in the absence of constitutional inhibition. So, also constitutional authority to extend existing terms of office is sometimes given for certain expressed purposes.

"However, aside from such provisions, the legislature is without power, directly or indirectly, to extend the term of the incumbent of an elective office where the term is fixed by the constitution, where the term is limited by such instrument and the effect of the extension is to exceed the limit of tenure fixed * * *." 43 Am.Jur. Public Officers, Sec. 151. (Emphasis supplied)

As to the other office, a justice of the peace is definitely a constitutional officer.

"The judicial power of the state shall be vested in a Supreme Court, superior courts, justices of the peace, and such courts inferior to the superior courts as may be provided by law." Constitution of Arizona, Article 6, Section 1. (Emphasis supplied)

It is the contention of the respondent that our Constitution limits the term of office for a justice of the peace to a period ...


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