ADAMS et al.
BOLIN, Secretary of State
John Pintek, Bisbee, Conner & Jones, Tucson, Gerald Jones, Tucson, of counsel, for appellants.
Fred O. Wilson, Atty. Gen., Earl Anderson and Perry M. Ling, Asst. Attys. Gen., Lewis, Roca & Scoville, Phoenix, of counsel, for appellee.
La Prade, Justice. Udall, C. J., and Phelps and De Concini, JJ., concurring. Stanford, Justice (dissenting).
La Prade, Justice.
[74 Ariz. 271] This proceeding presents an appeal from the judgment of the Superior Court dismissing the complaint of plaintiffs. The complaint is for an injunction to prohibit the Secretary of State from certifying to the clerks of the several boards of supervisors, for inclusion on the official ballot to be submitted to the voters at the general election to be held in November, 1952, a referendum proposed by the Legislature. The action by the Secretary of State is sought to be enjoined on the ground that the Legislature was without power to refer the measure in question.
On March 10, 1952, there was filed in the office of the Secretary of State, House Concurrent Resolution No. 4, enacted by the 20th Legislature at its second regular session. This resolution enacted and ordered the submission to the people of a measure repealing an initiative measure adopted by the people in 1948, known as the Public Employees' Retirement Act. Secs. 12-801 to 12-828, inc., A.C.A.1939, Cum.Supp. The measure repealing the act was to "become valid when approved by a majority of the qualified electors voting thereon and upon proclamation of the Governor."
The Public Employees' Retirement Act was initiated by petition and was adopted at the 1948 general election: 240,998 electors had qualified for this election by registering; at the election 184,323 ballots were cast; 86,989 electors voted for the retirement measure and 38,111 voted against it. Of the electors actually voting at the polls 59,223 did not vote on this measure; and, 56,675 registered electors failed to vote at all. All figures re registrations and votes cast were verified from records in the office of Secretary of State, of which we take judicial notice.
"A majority of the votes cast thereon" was 62,551 votes, and became a law upon proclamation of the Governor. Const. Art. 4, pt. 1, sec. 1(5).
"A majority vote of the qualified electors" was 120,500. Const. Art. 4, pt. 1, sec. 1(6).
It did not, however, receive the approval of "a majority vote of the qualified electors" so as to make it immune from repeal or amendment by the Legislature, within the prohibition of Subsection (6), unless the phrase "approved by a majority vote of the qualified electors" is interpreted to be synonymous with the phrase "approved by a majority of the votes cast thereon".
The motion to dismiss the complaint was upon the ground that it failed to state a claim upon which relief could be granted. [74 Ariz. 272] It was argued (1) that the court was without jurisdiction to restrain the submission of the referendum proposed by the Legislature, and (2) that the Legislature has constitutional authority to submit to the voters a referendum repealing an initiated law. The judgment ordered the complaint "dismissed
for the reason and upon the ground that the Legislature of the State of Arizona does have the right to submit to the voters a referendum to repeal an initiative law, as a legislative measure."
It is the contention of appellants that an initiated measure, once adopted, can only be repealed in the same manner in which it was adopted, i. e., by an initiated repeal, and that the Legislature does not have the constitutional authority to order a referendum repealing an initiated law.
It is appellee's contention that not having received a majority vote of the qualified electors it is subject to repeal or amendment by the Legislature, and if subject to repeal by the Legislature, a fortiori the Legislature must have the power to refer a resolution of repeal. A holding sustaining this first contention would, of course, dispose of appellant's contentions and they would not need to be considered. It is argued that if the constitution makers had intended all initiated and referred measures were to be immune from appeal or amendment by the Legislature, the provisions of subsection (6) would have omitted the words "approved by a majority vote of the qualified electors." The subsection would then have read:
"The veto power of the governor, or the power of the legislature, to repeal or amend shall not extend to initiative or referendum measures".
Appellee presents three propositions of law of which we will take cognizance: they are, (1) the Legislature has constitutional power to repeal or amend an initiated measure approved by less than a majority of the qualified electors; (2) the Legislature has constitutional power to submit to the electorate a referendum repealing an initiated law; (3) that unless specifically authorized by law an injunction will not lie to restrain the exercise of legislative functions or in any manner to interfere in the legislative process.
A part of the controversy here stems from a difference of interpretation of the language of Art. 4, pt. 1, sec. 1(6) of the Constitution. This section reads as follows:
"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."
This section as it now reads was amended by an initiated act approved at the general election on November 3, 1914, and effective December 14, 1914.
The original section read as follows:
"'(6) The veto power of the governor shall not extend to initiative or referendum [74 Ariz. 273] measures approved by a majority of the qualified electors.'"
It is thus seen that as originally adopted the governor alone was precluded from vetoing initiative or referendum measures approved by a majority of the qualified electors. By the amendment the Legislature was included in the prohibition and it was deprived of the power to repeal or amend initiative or referendum measures "approved by a majority vote of the qualified electors." Both before and after the amendment the prohibition extended to initiative and referendum measures "approved by a majority vote of the qualified electors."
It is also suggested that if the words "approved by a majority vote of the qualified electors" were not to mean what they say but were intended to mean "approved by majority of the qualified electors voting thereon", that the words "voting thereon" could easily have been added to the sentence, as was done in Art. 21, sec. 1 of the Constitution wherein it is provided that amendments to the Constitution shall become a part thereof "if a majority of the qualified electors voting thereon shall approve and ratify * * *." (Emp. Sup.) We believe there is merit in this contention.
On examination of the journal of proceedings of the constitutional convention, wherein the provisions of Art. 4, pt. 1 of the Constitution, relating to initiative and referendum were under discussion, we find that it was repeatedly stated that the Oregon constitution furnished the model for consideration. The sentence in the Oregon section comparable to our Subsection (6) reads: "The veto power of the governor
shall not extend to measures referred to the people." Art. 4, § 1. Our Subsection (6) extended the prohibition not only to referred measures but to initiative measures. But it is to be noted that the prohibition in the Oregon section was to "[referendum] measures referred to the people" and then provided that "any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise." It is thus seen that our constitution makers intentionally deviated from the Oregon model and provided that the veto power of the Governor and the Legislature should not extend to initiative or referendum measures approved by a majority vote of the qualified electors. It is most patent that the words "approved by a majority vote of the qualified electors" were intentionally and meticulously selected.
Nothing is more firmly settled than under ordinary circumstances, where there is involved no ambiguity or absurdity, a statutory or constitutional provision requires no interpretation. Automatic Registering Mach. Co. v. Pima County, 36 Ariz. 367, 285 P. 1034; Board of Supervisors of Maricopa County v. Pratt, 47 Ariz. 536, 57 P.2d 1220; Industrial Comm. v. Price, 37 Ariz. 245, 292 P. 1099; Palmcroft Development Co. v. City of Phoenix, 46 Ariz. 200, 49 P.2d 626, 103 A.L.R. 802, [74 Ariz. 274] modified 46 Ariz. 400, 51 P.2d 921, 103 A.L.R. 811. We are not aware of any absurdity or inconsistency that will arise by construing this constitutional provision to mean what it says.
In Automatic Registering Mach. Co. v. Pima County, supra, [36 Ariz. 367, 285 P. 1035] it is said:
"In determining the true meaning of a statute the great fundamental rule is to ascertain and give effect to the intention of the Legislature. (Citing cases) This intent is, of course, determined primarily from the language of the statute itself, and, when that is plain and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to the rules of statutory construction. The statute must be given its plain and obvious meaning. (Citing cases) But where a literal interpretation would lead to injustice, absurdity or contradictions, or where the language is of doubtful meaning, it is the primary duty of the court to ascertain the legislative intent, and for this purpose to apply the various rules of statutory construction. (Citing cases.)"
There is a marked distinction between a law approved by a majority of the qualified electors and a law approved by a majority of the electors voting thereon. It is a matter of common knowledge, as disclosed by the records in the office of the Secretary of State, that even in presidential election years it is the rare exception when more than 75% of the qualified electors actually vote. It is all too clear that the constitution makers knew the difference between a majority of the votes cast thereon and a majority of the vote of the qualified electors. This is made clearer by reference to Art. 4, pt. 1, sec. 1(2), Constitution, where it was provided that "ten per centum of the qualified electors shall have the right to propose any measure * * *." In Subsection (3) it is provided that "five per centum of the qualified electors" might order a referendum. These two subsections taken together indicate that the required per centum in one instance is ten per centum of the qualified electors and in the other five per centum of the qualified electors. However, these required percentages are modified or reduced by Section 1(7) of Art. 4, pt. 1. This section provides that "The whole number of votes cast for all candidates for governor at the general election last preceding the filing of any initiative or referendum petition on a state or county measure shall be the basis on which the number of qualified electors required to sign such petition shall be computed."
So, Subsection (2) and (3) referring to the percentages required of the qualified electors, do not have to be literally complied with because of Subsection (7), which modifies Subsections 2 and 3 and makes definitely clear that for an initiative measure ten per centum of the qualified electors
is not required but rather only ten per [74 Ariz. 275] centum of the votes cast for all the candidates for governor at the ...