STATE of Arizona, ex rel. Robert MORRISON, Attorney General of the State of Arizona, Plaintiff,
William W. NABOURS, Defendant.
[79 Ariz. 241] Robert Morrison, Atty. Gen., of the State of Arizona, for plaintiff.
Brandt & Baker, Yuma, for defendant. Byrne, Green & Benton, Robert W. Nebeker,
J. Duke Cameron, William P. Copple, Rolle, Jones & Pace, Linwood Perkins, Jr., Yuma, of counsel.
Marshall W. Haislip, Phoenix, John E. Madden, Phoenix, for Maricopa County Bar Assn., P. Preston Sult, Eloy, for Pinal County Bar Assn., amici curiae.
This is an original proceeding in quo warranto instituted by the Attorney General of the State of Arizona to exclude the defendant, William W. Nabours, from the office of Judge of the Superior Court of the State of Arizona, in and for the County of Yuma, upon the ground that he has usurped, intruded into and unlawfully purports to hold that office.
On the 21st day of June, 1955, the Governor of the State of Arizona purportedly [79 Ariz. 242] appointed defendant to said office to be effective July 1, 1955. On June 6, 1955, the Board of Supervisors of Yuma County passed a resolution petitioning the Governor of the State of Arizona for approval of an additional judge of the superior court for that county. The Governor, concurring in this petition, made the appointment. Defendant qualified by filing his oath of office with the secretary of state on the 28th day of June, 1955. On July 1, 1955, defendant admittedly assumed the office and claims that he is rightfully and lawfully entitled to the same.
The Board of Supervisors was actuated to make this petition by a desire to make available to the County of Yuma an additional judge to expedite the court's law business that was thought to be in excess of the ability of one judge to perform. The Board exercised the discretion vested in it by the provisions of Section 19-301, A.C.A.1939, as amended by 22d Legislature, 1st Regular Session, c. 136, effective April 13, 1955. The amended section as far as applicable reads as follows:
'19-301. Number of courts and judges. In each county of the state there shall be a superior court for which at least one judge shall be elected. In each county having a census enumeration greater than thirty thousand inhabitants, and upon petition by the board of supervisors of such county to the governor of Arizona and his approval thereof, there shall be an additional judge of the superior court for each additional thirty thousand inhabitants, or majority fraction thereof.
'For the purpose of this Act the counties of Maricopa, Pima, Pinal and Yuma are hereby declared to have, and shall be held to have, inhabitants respectively, in excess of 460,000, 205,000, 55,000 and 45,000.'
It is the contention of the relator that the purported appointment is and was without authority of law, and a nullity, and of no force or effect, for the reason and on the ground that said amendment arbitrarily fixing the population of the counties of Maricopa, Pima, Pinal and Yuma, is in contravention of Section 5, Article VI of the Arizona State Constitution, which provides as follows:
'There shall be in each of the organized counties of the state a superior court, for which at least one judge shall be elected by the qualified electors of the county at the general election; Provided, that for each county having a census enumeration greater than thirty thousand inhabitants, one judge of the superior court for every additional thirty thousand inhabitants, or majority fraction thereof, may be provided by law. * * *' (Emphasis supplied.)
The relator in his complaint alleged that there has been no census taken of Yuma [79 Ariz. 243] County, Arizona, showing a census enumeration of said county as exceeding a majority fraction of 30,000 population over and above the basic 30,000 population, as required by Article VI, Section 5, of the Constitution of Arizona. In his response the defendant denied this allegation. We take it that by his denial he means nothing more than to deny that a census enumeration means a counting singly of inhabitants. It is tacitly admitted in defendant's brief that prior to the action of the Board of Supervisors there had been no
actual counting of inhabitants of Yuma County since the 1950 Federal census, which showed Yuma County to have a population of 28,006.
It is clear that by the provisions of Section 5, Article VI of the Constitution, supra, there has been granted to the legislature the power to create additional judgeships only within limitations. The legislature can only authorize additional judges in the event a county has the requisite population measured by a census enumeration. This necessarily prohibits the legislature from making such determination by any other method. In Collins v. Krucker, 56 Ariz. 6, 104 P.2d 176, 177, this court in construing this section had occasion to say:
'It is apparent from this that the question as to whether the various counties shall have more than one judge of the superior court, when the census population exceeds 45,000, depends upon the will of the legislature, for the phrase 'may be provided by law', with no other qualification, is invariably held to refer to action by that body. We must, therefore, determine what it has decided upon this subject. * * *'
Defendant argues that as an incident to this grant of power it follows that the legislature must of necessity make a factual determination of population as a predicate to the creation of any new judgeship, and therefore the method and means of such determination is a legislative function. The weakness of this is that the Constitution itself has prescribed the method which must be used in making such determination, that is to say, by 'a census enumeration'. There is ...