STATE ex rel. JONES, Atty. Gen.
[76 Ariz. 392] Ross F. Jones, Atty. Gen., in pro. per.
A. M. Crawford and Thaddeus G. Baker, Asst. Attys. Gen., for plaintiff.
Ruffo Espinosa, Nogales, for defendant.
Parker & Muecke, and Robt. L. Myers, Phoenix, amici curiae.
The State of Arizona upon the relation of Ross F. Jones, Attorney General, brings this original action in quo warranto, asking that this court adjudge defendant Lynn Lockhart not entitled to hold or enjoy the office of state senator from Apache County, and that judgment of ouster be entered against him.
[76 Ariz. 393] The undisputed facts are that on March 30, 1953, there was filed with the secretary of state a regularly adopted Senate concurrent resolution proposing an amendment to the Constitution of Arizona relating to the legislature, and directing that said amendment be submitted to the qualified electors at the next regular general election or at a special election called for that purpose. Thereafter, by the provisions of Chapter 123, Laws 1953, the legislature called a special election, to be held September 29, 1953, for the purpose of submitting the above and other proposed constitutional amendments to a vote of the people. The election was held, and when the official returns were canvassed it appeared the amendment in question had carried by a majority of 444 votes. Thereupon His Excellency, Governor Howard Pyle, in obedience to Article IV, Part 1, Section 1, subsection (13) of the Constitution, issued a proclamation declaring said amendment to be law.
The amendment is an amendment of Article IV, Part 2, Section 1, subsection (1) of our Constitution, Laws 1953, p. 360, and provides in part as follows:
'2. The Legislature
'(1) The Senate shall consist of two members from each county elected at large.
'Beginning with the Twenty-second Legislature the House of Representatives shall be composed of not to exceed eighty members, to be apportioned to the counties according to the number of ballots cast in each county at the preceding general election for governor in the manner herein provided. * * *'
(Then follows a complicated apportionment formula, presently based upon each 3520 ballots cast for Governor, which will freeze the House membership at the maximum above prescribed.)
At all times prior to the adoption of the foregoing amendment, the state senate had been composed of nineteen members, the apportionment by enumeration of counties being as follows: two senators each from Cochise, Gila, Maricopa, Pima, and Yavapai counties, and one senator from Apache County and each of the other eight counties of the state.
The governor evidently considered that with adoption of the amendment, in the nine counties having but one senator under the old provisions of the Constitution, there was a newly-created additional office of state senator, and that there was a vacancy in the term thereof. The parties to this case seem to agree, and we think properly so, that Chapter 37, Laws 1923, which appears in Article 11 of Chapter 55, A.C.A.1939, providing for special election to fill vacancies in the legislature, has no application to the instant situation, wherein there has never been an incumbent of the [76 Ariz. 394] office. That law obviously provides only for the filling of vacancies caused by death, resignation or removal of a person who is already serving a term in the legislature. However, Article 5, Section 8, of our Constitution provides:
'When any office shall, from any cause, become vacant, and no mode shall be provided by the constitution or by law for filling such vacancy, the governor shall have the power to fill such vacancy by appointment.'
Believing that this section did apply to the situation, that a term existed and there was a vacancy in the office, and that he was by law empowered to fill the same, the Governor on October 31, 1953, undertook to appoint defendant Lynn Lockhart, of Springerville, Arizona, as state senator from Apache County for a short term, effective November 2, 1953.
On that day defendant appeared at the office of the Governor and took his oath of office as state senator, and in compliance with the rules of the Senate subscribed to
a non-communist oath. On the following day while the Senate was assembled in open session, defendant intruded upon that body and made demand upon the Senate President, Hon, Hubert Merryweather, that he be seated as a duly qualified senator ...