Opposition Brief — Trew v. Garvey

INDEX

SUBJECT INDEX

SUMMARY OF ARGUMENT

OPENING STATEMENT

ARGUMENT ON PROPOSITION No. I

(Lack of federal question.) ~............---

ARGUMENT ON PROPOSITION No. II

(Guarantee of republican form of government

not a judicial question.) ................... 6-10

ARGUMENT ON PROPOSITION No. III

CHPED HUSTED GE TA J onccncmeccccnsnscues 10-12

ARGUMENT ON PROPOSITION No. IV

— question here presented has become

ARGUMENT ON PROPOSITION No. V

(Submission of referred measures to vote.) _.16-23

CONCLUSION

TABLE OF CASES CITED

American Surety Co. v. Baldwin, 287 U.S. 156,

77 L. ed. 231, 53 Sup. Ct. 98, 86 A.L.R. 298__

Bowie v. Scott, 233 U.S. 658, 58 L. ed. 1141, 34

Sup. Ct. 769

Caine v. Robbins, 61 Nev. 416, 131 Pac. (2d)

Consolidated Turnpike Co. v. Norfolk & Ocean

View Ry. Co., 228 U.S. 326, 33 Sup. Ct. 510,

57 L. ed. 857

INDEX

TABLE OF CASES CITED—(Continued)

Missouri Pacific R. R. Co. v. Hanna, 266 U.S.

184, 69 L. ed. 235, 45 Sup. Ct. 836.__________

Ohio ex rel. Bryant v. Akron Metropolitan Park

District, 281 U.S. 74, 74 L. ed. 710, 50 Sup.

Ss ey OP EA BO Picccnccuneccceuncs

Richardson v. McChesney, 218 U.S. 487, 54 L.

Ease iS Bic a oP A

Senna v. Tile Layers’ Protective Union, Local

oo 5, 301 U.S. 468, 57 Sup. Ct. 857, 81 L. ed.

ET GAMA ad ahi aileiig didnt ac wtbiais mnmmmame

Sims Printing Co. v. Frohmiller, 54 Ariz. 64, 92

SE IY I isn in eh cthinivchsntasssbsacestivtaenecmenmeniasn se

Page

Fisher v. Baker, 203 U.S. 174, 51 L. ed. 142__-. 16

Garvey, Secretary of State, v. Trew, 170 Pac.

SETI i Rnsadcadh ed avdidintehreninenetitebicemneum 6

ow, Colorado & Santa Fe Ry. v. Dennis, 224

ee Oe nennncncuscanteanoee 16

Herndon v. Georgia, 295 U.S. 441, 79 L. ed.

ee SS Ratinetdudanemeonnee 5

In re Duncan, Petitioner, 139 U.S. 449, 35 L. ed.

eS Sc nedcctnneonsaccdthanene 7

Kerby v. Griffin, 48 Ariz. 4384, 62 Pac. 1141____ 14

Luther v. Borden, 7 Howard (48 U.S.) 1, 12 L.

ict te tien tac domi Acs abacoummnemaiene 4

McDonald v. Oregon R. R. & Navigation Co., 233

Rees Oy OO Be WE. ERG F icc cccnnucccncccns 11-12

Mills v. Green, 159 U.S. 651, 40 L. ed. 293_____ 15-16

INDEX iii

TABLE OF CASES CITED—(Continued )

Page

State v. District Court, 106 Mont. 470, 78 Pac.

(BB) GOT .ncncccnncctacccaccsoccsepencs 20-21

Supreme Lodge, Knights of Pythias, v. Evser,

265 U.S. 41, 44 Sup. Ct. 436, 68 L. ed. "g91__- 28

Supreme Lodge, Knights of Pythias, v. Meyer

P65 US. 30, 44 Sup. Ct. 482, 68 L.’ed. 885... 28

Taylor v. Beckman, 178 U.S. 548, 44 L. ed. 1187,

20 Sup. Ct. 890, 1000...................- 8-9

Texas v. White, 7 Wallace (74 U.S.) 700, 98

Be, Sls Ul incisestiuscinnenoindmdinsnnmndpelant 9-10

White River Lumber Co. v. Arkansas ex rel. Ap-

wo 279 U.S. 692, 73 L. ed. 903, 49 Sup.

OR. Ge cncnniiggpiccncnccsutcecessnancnacs

TOD cncccnccncnnnnccceccccccceceessces 18-20

STATUTES CITED

Art. II, parag. 4, Constitution of Arizona_-___- 11

Art. IV, part 1, Constitution of Arizona___-_--- 18-22

Art. IV, part 1, Section 1(3), Constitution of

ASHORE cnceccocccccccecccenscscocescss 5-6

Art. IV, part 1, Section 3, Constitution of

DEERE, . ncncncccncucacusenucseneseceses 12

Art. IV, part 1 Section 11, Constitution of

DIE, cccccncccacccasscesetnncanneoes 13

Art. IV, Constitution of United States_-_--~~-~~-- 17

Art. IV, Section 4, Constitution of United States 6-9

iv INDEX

STATUTES CITED—(Continued)

Page

Chapter 11, 1st Special Session, Laws of 1945._ 5

SEE TIN cceiettcrnicsnsiecasiinsictaigeamieiitisialedeianiigridiavndsp 17

Section 60-105, Arizona Code Annotated, 1939__16-22

Section 60-107, Arizona Code Annotated, 1939__ 13

TEXTS CITED

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1946

No. 605

WILMOT W. TREW,

Petitioner,

vs.

DAN E. GARVEY, AS SECRETARY OF STATE

OF THE STATE OF ARIZONA,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

SUMMARY OF ARGUMENT

Proposition No. I

I. Lack of federal question.

A. There is no federal question in this proceed-

ing to be determined by this court.

B. A federal question must appear affirmative-

ly from the record before a writ of certiorari

may be issued by this court.

C. The federal question, if any, must be raised

before final judgment in the state supreme

a a

2

court, and comes too late in a motion for re-

hearing in the state court.

Proposition No. II

II. Guarantee of republican form of government not

a judicial question.

nk FY

A. The decision of the Supreme Court of Ari-

zona in Garvey, Secretary of State, v. Trew,

170 Pac. (2d) 845, does not destroy the re-

publican form of government in Arizona. In

fact, such decision was issued in pursuance

of and furtherance of the republican form of

tbo wh adopted by the people of the

tate of Arizona in the constitution of that

state.

B. The enforcement of the guarantee of a re-

publican form of government is not a judicial

matter, rather it is legislative and political.

Proposition No. III

III. Due process of law.

A. The original pleadings must aver that the

due process clause of the federal constitution

is infringed when the state constitution con-

tains a due process clause.

B. The due process clause of the federal consti-

tution (14th Amendment) does not control

methods of state procedure.

Proposition No. IV

IV. The question here presented has become moot.

A. No actual controversy here exists because:

B.

3

1. The measure sought to be referred, Chap-

ter 11, House Bill No. 20, 17th Legisla-

ture of Arizona, 1st Special Session, has

not been published in publicity pamphlets

as required by law.

2. Not having been published, the measure

cannot be referred in the 1946 general

election held on November 5, 1946.

3. The relief here sought is to compel the

_ filing of the referendum petitions in

order to place said measure on the ballot

for the general election, and the general

election has been held prior to this time.

4. The secretary of state is without power

to publish publicity pamphlets relating to

said measure at any cukecuunnt general

election.

The court will not consider a question when

some intervening event has rendered the

question moot.

1. The passage of time within which the

pamphlets could have been published has

intervened, and the question is moot.

2. The question raised in this case can only

affect a certain election, and, since the

election date has passed, the question is

now moot.

3. The court will take judicial note of the

election laws of the several states.

4

Proposition No. V

V. Submission of referred measures to vote.

‘A. The secretary of state is without power or

authority to certify a measure to the ballot,

which measure is not within the class of

measures permitted by the state constitution

to be referred.

B. The state courts have the right to pass on the

referableness of measures prior to their be-

ing voted upon.

C. The meaning attributed to a state constitu-

tion and statutes by the state courts must be

accepted by the United States Supreme Court

as though it had been specifically expressed

in the statute.

OPENING STATEMENT

The petition filed herein is a classic example of the

delaying tactics frequently used by a litigant who is

dissatisfied with the decision of a state court of last

resort. Petitioner’s request for review by this court

is an imposition by him upon the Supreme Court of

the United States, since his specifications of error and

argument are so lacking in merit as to be frivolous

and unworthy of consideration by this august tri-

bunal. Respondent relies on the legal propositions set

forth in this, his Brief in Opposition to the Petition

for Writ of Certiorari.

ARGUMENT ON PROPOSITION No. I

There is no federal question involved in this pro-

ceeding. The only matter before the Supreme Court

5

of Arizona and the only one decided by it related to

the construction of Chapter 11, 1st Special Session,

Laws of 1945, and Article IV, part 1, Section 1 (3),

Constitution of Arizona. In the absence of a federal

question, being properly presented in the state court,

this court is without jurisdiction to consider it. Hern-

don v. Georgia, 295 U.S. 441, 79 L. ed. 1530, 55 Sup.

Ct. 794. This is true even though a writ of certiorari

has already been granted, since the writ must be dis-

missed where no federal question is involved. Mis-

souri Pacific R..R. Co. v. Hanna, 266 U.S. 184, 69 L.

ed. 235, 45 Sup. Ct. 36; American Surety Co. v. Bald-

win, 287 U. S. 156, 77 L. ed. 231, 53 Sup. Ct. 98, 86

A.L.R. 298.

A question raised for the first time in the Supreme

Court of the United States will not be considered by

it, and it must appear from the record that the consti-

tutional question relied on by the petitioner was pre-

sented to or passed upon by the state supreme court.

White River Lumber Co. v. Arkansas ex rel. Appel-

gate, 279 U. S. 692, 73 L. ed. 903, 49 Sup. Ct. 457.

There is nothing in the record before this court which

indicates that a federal question was presented to or

decided by the Supreme Court of Arizona. The mere

fact that petitioner has attempted to raise a federal

question in his specifications of error and argument is

insufficient to vest this court with jurisdiction of the

proceedings.

Furthermore, a federal question first raised on peti-

tion for rehearing in the state supreme court is too

late. American Surety Co. v. Baldwin, supra; Con-

solidated Turnpike Co. v. Norfolk & Ocean View Ry.

Co., 228 U. S. 326, 33 Sup. Ct. 510, 57 L. ed. 857.

6

ARGUMENT ON PROPOSITION No. Il

Although petitioner failed to raise any federal ques-

tion in the court below, he has attempted to do so in

his petition for a writ of certiorari, wherein he claims

a destruction of the republican form of government

in Arizona and a deprivation of property without due

process of law. These matters will be treated sepa-

rately by respondent.

Throughout his specifications of error and argu-

ment, petitioner has repeatedly alleged that the de-

cision of the Supreme Court of Arizona in Garvey,

Secretary of State, v. Trew, 170 Pac. (2d) 845, de-

stroys the republican form of government in Arizona,

contrary to the guarantee set forth in Article IV,

Section 4, Constitution of the United States, as fol-

lows:

“The United States shall guarantee to every state

in this union a republican form of government.

* * 9

Petitioner’s contention is without merit, having no

basis in law or in fact. An examination of the record

reveals that the Supreme Court of Arizona, in render-

ing such decision, was merely performing its duties

as prescribed by law. That court is a constitutional

court, the members of which are elected by the voters

of the state as provided by law. One of the necessary

functions of such a body under our system is the con-

struction of the provisions of the constitution, the

same constitution by which the court was created. In

interpreting Article IV, part 1, Section 1(3) of the

Constitution of Arizona, the supreme court of that

Kar BD aI ET

FIN ARS EEE NG RPT, ERIN TE

enews

e

state was exercising a judicial function in a manner

required by the fundamental law itself. The situation

is similar to that existing in In re Duncan, Petitioner,

139 U.S. 449, 35 L. ed. 219, 11 Sup. Ct. 573, wherein

it was said:

“By the Constitution, a republican form of

Sng is guaranteed to every State in the

nion, and the distinguishing feature of that

form is the right of the people to choose their own

officers for governmental administration, and

pass their own laws in virtue of the legislative

— reposed in ny ye gy bodies, whose

egitimate acts may said to be those of the

people themselves; but, while the people are thus.

the source of political power, their governments,

National and State, have been limited by written

constitutions, and they have themselves set bounds

to their own power, as against the sudden im-

pulses of mere majorities.’

* * * * * * * x *

“The State of Texas is in full possession of its

faculties as a member of the Union, and its legis-

lative, executive and judicial departments are

peacefully operating by the orderly and settled

methods prescribed by its fundamental law.

Whether certain statutes have or have not bind-

ing force, it is for the State to determine, and

that determination in itself involves no infrac-

tion of the Constitution of the United States, and

raises no Federal question giving the courts of

the United States jurisdiction.”

If the supreme court were in error in arriving at its

decision, that error could have been corrected, and

may still be corrected, by the ordinary processes of

8

legislative enactment or amendment to the constitu-

tion.

In Taylon v. Beckman, 178 U.S. 548, 44 L. ed. 1187,

20 Sup. Ct. 890, 1009, a writ of error was granted by

this court to review a decision of the Supreme Court

of Kentucky, in which that court had construed cer-

tain Kentucky statutes relating to election contests

for state executive officers. It was contended by the

disgruntled, ejected officeholders that the Kentucky

decision destroyed the republican form of government

in that state. This court refused to consider such ob-

jection and dismissed the writ with the following re-

marks:

“ * * * The Commonwealth of Kentucky is in

full possession of its faculties as a member of the

Union, and no exigency has arisen requiring the

interference of the General Government to en-

force the guarantees of the Constitution, or to

repel invasion, or to put down domestic violence.

In the eye of the Constitution, the legislative,

executive and judicial departments of the State

are peacefully operating by the orderly and set-

tled methods prescribed by its fundamental law,

notwithstanding there may be difficulties and

disturbances arising from the pendency and de-

termination of these contests. This very case

shows that this is so, for those who assert that

they were aggrieved by the action of the General

Assembly, properly accepted the only appropriate

remedy, which under the law was within the

reach of the parties. That this proved ineffectual

as to them, even though their grounds of com-

plaint may have been in fact well founded, was

the result of the constitution and laws under

which they lived and by which they were bound.

Any remedy beside that is to be found in the

A, ABT aa

ROY | TRF

9

august tribunal of the people, which is continually

sitting, and over whose judgments on the conduct

of ey functionaries the courts exercise no

control.

“We must decline to take jurisdiction on the

ground of ay wees of rights embraced by the

Fourteenth endment, without due process of

law, or of the violation of the guarantee of a re-

publican form of government by reason of similar

deprivation.

“As remarked by Chief Justice Taney in Luth-

er v. Bordon: ‘The high power has been conferred

on this court of passing judgment upon the acts

of the state sovereignties, and of the legislative

and executive branches of the Federal govern-

ment, and of determining whether they are be-

j yond the limits of power marked out for them

¢ respectively by the Constitution of the United

| States. This tribunal, therefore, should be the

f last to overstep the boundaries which limit its

: own jurisdiction. And while it should always be

f

RL, AIS Te the

ready to meet any question confided to it by the

Constitution, it is equally its duty not to pass be-

yond its appropriate sphere of action, and to take

. care not to involve itself in discussions which

‘ properly belong to other forums.’ ”’

Furthermore, even though the decision of the Ari-

j zona court did act to destroy the republican form of

f government, it has long been settled that the enforce-

: ment of the guarantee contained in Article IV, Sec-

tion 4, Constitution of the United States, is a legis-

; lative question for Congress, rather than a judicial

matter for the courts, which lack jurisdiction to con-

i sider such objection. Luther v. Borden, 7 Howard

(48 U.S.) 1, 12 L. ed. 581; Texas v. White, 7 Wallace

10

(74 U.S.) 700, 98 L. ed. 227. This doctrine has been

reiterated on numerous occasions by this court and is

well stated in Ohio ex rel. Bryant v. Akron Metropoli-

tan Park District, 281 U.S. 74, 74 L. ed. 710, 50 Sup.

Ct. 228, 66 A.L.R. 1460, as follows:

“As to the guaranty to every state of a republi-

can form of government ($4, art. 4), it is well

settled that the questions arising under it are

oy not judicial, in character and thus are

the consideration of the Congress, and not the

— sop eC Teleph. & Teleg. Co. v.

o ke. 223 U 118, 56 L. ed. 377, 39 Sup.

224; O'Neill v. Leamer, 239 U.S. 244,

548, 60 L. ed. 249, 263, 36 Sup. Ct. Rep. 54; Ohio

ex rel. Davis v. Hildebrant, 241 U.S. 565, 60 L.

ed. 1172, 36 Sup. Ct. Rep. 708; Mountain Timber

Co. v. Washington, 243 U.S. 219, 234, 61 L. ed.

685, 694, 37 Sup. Ct. Rep. 260, Ann. Cas. 1917D,

642, 13 N.C.C.A. 927.”

ARGUMENT ON PROPOSITION No. Ill

Respondent has already pointed out that no federal

question of any nature was presented to the courts

below.

In regard to petitioner’s contention that the decision

of the Arizona court operates to deprive him of his

property without due process of law, he must original-

ly raise that question in the lower court, and in the

event the state constitution contains a due process

clause, his original pleading in the trial court must

contain an averment referring specifically to the Con-

stitution of the United States. The criginal pleading

in this case did not contain such an averment. In the

absence of this averment petitioner has no basis for

TET eS

11

invoking the jurisdiction of this court, for a bare al-

legation that due process of law is lacking will be con-

strued as referring to the state provision rather than

the federal. Bowie v. Scott, 233 U. S. 658, 58 L. ed.

1141, 34 Sup. Ct. 769; Consolidated Turnpike Co. v.

Norfolk & Ocean View Ry. Co., 228 U. S. 326, 33 Sup.

Ct. 510, 57 L. ed. 857. Further, in petitioner’s origin-

al complaint no mention was made of the due process

clause of either constitution.

The Arizona Constitution contains the following

provision, Article II, paragraph 4:

“No person shall be deprived of life, liberty or

property without due process of law.”

In addition to the above arguments, petitioner’s

complaint seems squarely within the opinion of Chief

Justice White in McDonald v. Oregon R. R. & Navi-

gation Co., 233 U.S. 665, 58 L. ed. 1147, wherein the

chief justice said:

“ * * * It is elementary and needs no citation

of authority to show that the due process clause

of the 14th Amendment does not control methods

of state procedure or give jurisdiction to this

court to review mere errors of law alleged to

have been committed by a state court in the per-

formance of its duties within the scope of its

authority concerning matters non-Federal in

character. So far as the contentions addressed

themselves to the subject-matter of jurisdiction,

it is clear that they do not deny jurisdiction in

the sense of the fundamental absence of any and

all right to take cognizance of the cause, but are

confined to jurisdiction in the sense of the duty

to rightfully decide subjects to which judicial

+ Soe, oo |

12

power extends. In this aspect the error of all the

contentions is within the principle announced in

Castillo v. McConnico, 168 U. 8. 674, 42 L. ed.

622, 18 Sup. Ct. Rep. 229.”

Essentially, that is petitioner’s complaint. The

methods of procedure whereby he seeks to have his

referendum measure certified to the ballot are meth-

ods of purely state procedure, and because the lower

court did not approve his methods or reasoning, he

contends he is deprived of his property without due

process of law. Such a position is absurd.

ARGUMENT ON PROPOSITION No. IV

It has been well settled that the Supreme Court of

the United States will not take jurisdiction over a

matter when no actual controversy exists. Without

any reference for the moment to the other matters

which respondent relies upon as demonstrating that

this court will not take jurisdiction of this action, re-

spondent believes that since the judgment of this

court can have no legal effect, the entire matter has

become moot, and, since this is so, a reversal of the

judgment of the Supreme Court of Arizona will serve

no purpose.

Article IV, part 1, Section 3 of the Constitution of

Arizona, reserves to the people of Arizona the power

of referendum of certain classes of legislative enact-

ments. It was initially contended that the measure in

question in this suit was not within the class of meas-

ures that are subject to th: referendum. That con-

tention was upheld by the Supreme Court of Arizona

and will be discussed at a later point in this argu-

” a

4

13

ment. However, for the present, that question is im-

material. Article IV, part 1, Section 11, Constitution

of Arizona, provides that the texts of all measures sub-

mitted for referendum shall be published in the same

manner as proposed amendments to the Constitution,

and that method is to be followed until the legislature

especially provides methods for the publication of

referendum measures. Section 60-107, A.C.A. 1939,

is legislation specially enacted to provide the method

of publishing initiative and referendum measures and

now supersedes Article IV, part 1, Section 11 of the

Arizona Constitution. This Code section, as amended,

provides that not later than the tenth day before the

primary election, pamphlets containing the referred

measure must be distributed to the precincts, and on

the primary election day the election officials must

offer one copy of said pamphlet to each voter as he

presents himself to vote. However, during the war

the required publicity pamphlets must be given to

each county recorder seventy-five days before the

regular election, which, in respect to the year 1946,

would make the delivery date of the pamphlets August

22, 1946. The county recorders must then promptly

mail one copy of the pamphlet to each registered voter.

This case, now sought to be brought to this court

for review on this petition for certiorari, was decided

prior to August 22, 1946, by the Arizona Supreme

Court, and as a result of the decision in his favor, the

secretary of state, Garvey, did not include the meas-

ure in question in the publicity pamphlets, and it has

never been so included.

The legal effect of an omission of a secretary of

state to include a measure in the publicity pamphlets

LES NDE AS ey BP

ec |

~~

14

has been before the Arizona Supreme Court. It was

held in the case of Kerby v. Griffin, 48 Ariz. 434, 62

Pac. 1141, that if the referred measure is not publish-

ed ‘in the pamphlet form required by law, it cannot

be validly enacted by the people in the next general

election. Thus it is seen that the measure petitioner

seeks to have referred cannot be enacted at the general

election on November 5, 1946, even if placed on the

ballot. In this case, since the mandamus proceeding

was to compel the Secretary of State, Garvey, to ac-

cept the measure for filing, and since that action was

concluded in a manner adverse to the petitioner here-

in, it is obvious that the measure was never filed and

therefore could not be placed upon the ballot of the

general election of November 5, 1946.

OTT

The next question is whether the measure could be

publicized at a later general election and then placed

on the ballot. This has also been determined by the

Arizona Supreme Court, in the case of Sims Printing

Co. v. Frohmiller, 54 Ariz. 64, 92 Pac. (2d) 334.

There it was held that the secretary of state was with-

out power to publish publicity pamphlets pertaining to

a referred measure which had been referred for a

prior general election. To be specific, the secretary

of state could not publish publicity pamphlets in 1938

which described a measure that should have been pub-

licized for the 1936 election. So it follows that the

measure sought to be referred in this suit could not

be voted on in 1946 because it does not appear on the

ballot and because it was not publicized seventy-five

days before November 5, 1946. And it cannot be

publicized for any subsequent general election.

15

A judgment of this court reversing the Arizona

Supreme Court and ordering Garvey to file the peti-

tions for referendum in this case would have absolute-

ly no legal effect.

The general rule is that if, during the pendency of

proceedings to review a judgment, an event occurs

which renders it impossible for the reviewing court

to grant any actual relief whatever, the court will not

determine the questions litigated below but will dis-

miss the error or appeal. This applies to mandamus

proceedings as well as others. 3 Am. Jur. 314.

Since the Supreme Court of the United States by its

judgment could not order the secretary of state to

publish the necessary publicity pamphlets and certify

the measure to the ballot for the 1946 general election,

the date of said election having passed by this time,

it follows that the court cannot render any effective

relief whatsoever.

At the date of filing this brief, the general election

of November 5, 1946 has already passed into history.

The holding of that election and the passage of the

seventy-five day publication period are intervening

acts which are due to a power beyond the control of

either party. This court, in the case of Mills v. Green,

159 U. S. 651, 40 L. ed. 293, held that where the whole

object of the suit was to secure a right to vote at an

election, and since the voting day had passed, no re-

lief within the scope of the bill could be granted. The

court held that if its decree did not grant any effective

relief, it would not proceed to formal judgment and

would dismiss the appeal. That is precisely the situ-

ation here. Petitioner originally sought to compel

5

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é

at

ears a |

16

Garvey to file referendum petitions to be voted upon

at the general election on November 5, 1946. By

binding constructions of the applicable Arizona sta-

tutes by the Arizona Supreme Court, it has been held

that the measure could only be voted upon at the

general election held on November 5, 1946. That

date having passed, the petitions for referendum can-

not now have any effect.

In Mills v. Green, supra, this court held it would

take judicial notice of the laws of the several states re-

lating to the days of public elections, and thus this

court knows judicially that the Arizona election was

held on November 5, 1946.

Another case holding that where the course of an

election is to be affected by this court’s decree and the

election has already passed, the question becomes moot,

is Richardson v. McChesney, 218 U.S. 487, 54 L. ed.

1121.

For further cases holding this court will not render

a decision when the question was moot, see Fisher v.

Baker, 203 U.S. 174, 51 L. ed. 142, and Gulf, Colorado

& Santa Fe Ry. v. Dennis, 224 U. S. 503, 56 L. ed.

860.

ARGUMENT ON PROPOSITION No. V

Petitioner argues with great force that since his

original pleading in the trial court was predicated on

Section 60-105, A.C.A. 1939, this case is confined to

the sole issue of the legal sufficiency of the referen-

dum petitions as to whether they conform with the

requirements of law as to form and signature, and

——

17

that the court below was limited to a determination of

that sole issue. He then says that for the Arizona

Supreme Court to determine any issue as to whether

the measure is subject to the referendum provision of

the constitution is depriving the people of the State

of Arizona of their reserved power to affirm or dis-

approve legislative enactments, and is thus an abridg-

ment of the republican form of government guaran-

teed by Article IV of the Constitution of the United

States and the Enabling Act.

At an earlier point in this brief we have discussed

the question that problems as to the abridgment of the

guarantee of the republican form of government are

not judicial but legislative. We confine this portion

of our argument to these questions: (a) Is the secre-

tary of state obliged to refer to a vote of the people

measures which the constitution specifically exempts

from the referendum? (b) In advance of the enact-

ment of such matters, do the courts have the power

to determine their referableness?

Respondent believes that the secretary of state is

wholly without power to refer to a vote of the people

a measure which is specifically exempted from the

referendum, and that if his position in that respect is

attacked by judicial process, the courts of Arizona

have a right to examine the propriety of his actions.

Petitioner seems unwilling to understand the dis-

tinction between initiative measures, which, although

capable of being initiated, may be for some reason un-

constitutional, and a measure which is specifically

exempt from referendum. It seems to respondent that

a clear distinction exists.

oe |

18

Petitioner concedes the power of the Supreme Court

of Arizona to overrule previous decisions, and does

not seriously question the soundness of the decision

in this case as to the constitutional interpretation of

Article IV, part 1 of the Constitution of Arizona. Yet

that interpretation is the very essence of this proceed-

ing, whether or not the secretary of state had the

power or right to file the petitions. The Arizona Su-

preme Court said he did not. Yet this petition for

certiorari seeks to review the jurisdiction of the Ari-

zona court to make such an inquiry. This proposition

was first raised by petitioner in his motion for re-

hearing, filed in the Arizona Supreme Court, which

motion is incidentally a contumacious attack upon the

Supreme Court of Arizona merely because it over-

ruled a case which petitioner relied upon to sustain

his position. The motion for rehearing is not printed

in the record before this court but is a classic example

of the type of scurrilous language which is occasional-

ly employed by counsel, disgruntled that a court has

rejected his view of the law.

Respondent does not propose to discuss the merits

of the case in chief. The opinion of the Supreme Court

of Arizona will stand as his advocate in that. How-

ever, there are several cases which will be cited to

demonstrate that the action of the secretary of state

was proper, and hence the judicial review of his action

could properly sustain him. The Utah case of White

v. Welling, 89 Utah 335, 57 Pac. (2d) 703, contains

an apt discussion of the powers of the secretary of

state in his ministerial capacity. We quote from the

court’s decision:

“We believe the following principles are appli-

19

cable in regard to the duty of the secretary of

state under the first or preliminary state of pro-

cedure dealing with the matter of the application

for petition copies as provided by title 25, chapter

10, R.S. 1933: (1) The secretary of state cannot

pass upon the constitutionality of any proposed

law, at least at this stage of the proceedings

under the Initiative and Referendum Act. Thread-

gill v. Cross, 26 Okl. 403, 109 P. 558, 188 Am.

St. Rep. 964; In re Initiative Petition No. 2, 26

Okl. 548, 109 P. 823; In re Initiative State Ques-

tion No. 10, 26 Okl. 554, 110 P. 647; State v.

Osborn, 16 Ariz. 247, 143 P. 117; State v. Kozer,

126 Or. 641, 270 P. 513.. If the proposed law

showed unquestionably and palpably on its face

that it was unconstitutional—for instance, an at-

tempt by the proposed law to abolish a constitu-

tional office, board, or department—it is quite

likely that this court would refuse to issue the

mandamus on the theory that it would not com-

pel the secretary of state to do something which

would in the end be unavailing. State v. Roach,

230 Mo. 408, 130 S. W. 689, 139 Am. St. Rep.

639; State ex rel. Cranfill v. Smith, 330 Mo. 252,

48 S. W. (2d) 891, 81 A.L.R. 1066; State ex rel.

Davies v. White, 36 Nev. 334, 136 P. 110, 50

L.R.A. (N.S.) 195. (2) The secretary of state

cannot, nor can this court in a mandamus pro-

ceeding, pass upon a question of merit, worth,

wisdom, validity, or policy of any proposed law

intended to be initiated. State v. Kozer, supra.

(3) The acts required to be done by the secretary

of state, at least under this stage of the procedure

provided by the law, are ministerial, and he has

no discretion, except in so far as to determine

whether the document or instrument submitted

and purporting to contain the proposed law to be

initiated has the semblance of a law, or is such a

SO Any ee

: 20

matter as is not properly the subject of the Initia-

tive and Referendum Act.

* * * * * * * * * *

(Italics ours. )

and,

“« * * * That is to say, the secretary of state

would not be required, for instance, to submit

to the people (a) something merely calling for

their opinion or other belief; or (b) something

which, if voted on favorably by the people, would

not have any of the characteristics or attributes

of a law; or (c) something which is so unintel-

ligible, incomprehensible, incoherent, or meaning-

less that it will not permit of a determination as

to whether or not, if passed, it would be a law;

or (d) some matter which was not contemplated

by the Initiative and Referendum Act, such as a

proposed amendment to the Constitution. See

Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656;

Brazell v. Zeigler, 26 Okl. 826, 110 P. 1052.”

(Italics ours. )

Thus we see that the secretary of state, as a minis-

terial officer, may determine in that capacity when

the law is incapable of being constitutionally referred.

A Montana case of State v. District Court, 106

Mont. 470, 78 Pac. (2d) 937, discusses the referable-

ness of appropriation measures and police power

measures in Montana. In that case the Secretary of

State of Montana was restrained prior to election from

certifying said measures to the ballot for a ‘referen-

dum vote. The injunction restrained the submission

21

of the measures, and the Supreme Court of Montana

held that it would sustain the injunction as the meas-

ure was within the class of laws which are exempt

from referendum, saying:

“But one major question is before us for de-

cision: Is the act within the exceptions contained

in the constitutional provision, and thereby ex-

empt from referendum? This question as it con-

fronts us here contemplates and includes two

minor questions: (1) Does the act relate to the

appropriation of money, and (2) is it a law nec-

essary for the immediate preservation of public

peace, health, or safety? An affirmative answer

to either of the minor questions commands an af-

firmative answer to the major question.”

At a later point in the decision, the court held the act

sought to be referred was not within the exemptions,

but the quoted portion is pertinent to the point here

urged. It is clear that the Montana court felt it had

full power to decide the question of a measure’s being

properly referred prior to a vote of the people.

The same view was announced in the Nevada case

of Caine v. Robbins, 61 Nev. 416, 181 Pac. (2d) 516.

See also, 28 Am. Jur. 172, 173, sections 36 and 37.

In no sense can it be said that the action of the sec-

retary of state or the court was an interference with

the legislative department of Arizona. In refusing to

accept the petitions the secretary of state was acting

in full accord with the constitutional provisions and

in aid and assistance of the legislative or law-making

department, which provisions provide that bills en-

acted by the legislature for appropriations of the

q

4

4

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22

character contained in this measure are not subject

to the referendum. The action of the secretary and

the court merely blocked interference with the con-

stitutional law-making functions both of the legisla-

ture and of the people. Obviously, if a measure must

be referred where the requisite number of signers are

secured, and there is no power in the secretary or the

court to stop such reference, the constitutional excep-

tion as to laws pertaining to peace, safety, etc. and

appropriations would be wholly nugatory. The re-

sult would be that every measure passed by the legis-

lature, even though with an emergency clause, would

be referable.

The decision in this case relates solely to the mean-

ing attributed to Article 1V, part 1, Constitution of

Arizona, and Section 60-105, A.C.A. 1939. These are

purely state matters and in no manner give rise to

any federal question. Petitioner has not pointed out

any federal question other than that of an abridgment

of the republican form of government and the due pro-

cess clause in the federal Constitution, which points

have already been discussed. The errors relating to

these propositions are numbered 4, 5 and 6 of peti-

tioner’s reasons for the allowance of the writ of cer-

tiorari. Numbers 1, 2, 3, 7, 8, 9, 10, 11, 12 and 13

are all purely state matters and deal with the mean-

ing and construction given various phases of the Con-

stitution of Arizona and the Arizona statutes. This

is readily apparent from reading the alleged assign-

ments of error.

Since these questions are purely local and state ques-

tions, it is the well settled law of this court that the

meaning attributed to the state constitution and sta-

wes A

23

tutes by the state court must be accepted as though

it had been specifically expressed in the statute. As

was so ably said by Mr. Justice Sutherland in Supreme

Lodge, Knights of Pythias, v. Meyer, 265 U.S. 30, 44

Sup. Ct. 432, 68 L. ed. 885:

“Under the settled rule of this court, declared

so frequently and uniformly as to have become

axiomatic, we must accept this decision of the

highest court of the state, fixing the meaning of

the state legislation, as though such meaning had

been specifically expressed therein. See, for ex-

ample, Leffingwell v. Warren, 2 Black, 599, 603,

17 L. ed. 261, 262; Green v. Neal, 6 Pet. 291,

297-300, 8 L. ed. 402, 404-406. And we follow

the state construction even though it may not

agree with our own opinion. Carroll County v.

United States, 18 Wall. 71, 82, 21 L. ed. 771,

775; Shelby v. Guy, 11 Wheat. 361, 367, 6 L. ed.

495, 496; Tioga R. Co. v. Blossburg & C. R. Co.,

20 Wall. 137, 143, 22 L. ed. 331, 334. * * * ”

See also, Supreme Lodge, Knights of Pythias, v.

Fiser, 265 U.S. 41, 44 S. Ct. 436, 68 L. ed. 891, and

Senna v. Tile Layers’ Protective Union Local No. 5

301 U. S. 468 Sup. Ct. 857, 81 L. ed. 1229.

We do not concede that any of the questions raised

in petitioner’s assignment of error are federal ques-

tions and believe that the above cited law applies to

all thirteen assignments.

24

CONCLUSION

Based on the foregoing reasons, respondent submits

that this court should properly deny petitioner’s appli-

cation for writ of certiorari.

JOHN L. SULLIVAN,

Attorney General,

State of Arizona,

Counsel for Respondent.

JOHN W. Roop,

Chief Assistant

Attorney General

Burk SUTTER,

Assistant Attorney General,

Of Counsel for Respondent.