State v. Cox , 43 Ariz. 174 ( 1934 )

I regret that it is not possible to concur with my colleagues in the conclusion reached by them in this case. Their opinion is certainly not in accord with either the letter or, as I see it, the spirit of the Constitution.

The holding in the case of Cox v. Stults Eagle Drug Co.,42 Ariz. 1, 21 P.2d 914, that an emergency measure which receives the affirmative vote of fewer than two-thirds of the members elected to each house does not become effective either as an emergency or an ordinary act, is exactly what the framers of the Constitution intended. However, this point was briefed but slightly in that case, the stress there being placed on the main proposition, but the pertinent language of the Constitution itself, when rightly construed, could lead to no other conclusion. I have re-examined the question presented in this case with the hope, since a matter of such importance depends upon it, that it might appear that the opposite conclusion could just as properly have been reached in that case, but nothing has been advanced, or even suggested, indicating that the view expressed then was other than correct.

A proper construction of subsection 3, section 1, part 1, article 4 of the Constitution of this state, especially that portion of it reading as follows, can lead to no other result:

"Provided, that no such emergency measure shall be considered passed by the Legislature unless it shall state in a separate section why it is necessary that it shall become immediately operative, and shall be approved by the affirmative votes of two-thirds of the members elected to each house of the legislature, taken by roll-call of ayes and nays, and also approved by the Governor."

This language is so clear that it needs no construction; its meaning is unmistakable. It states positively and definitely that no emergency "measure" shall be considered passed, unless it receives the affirmative votes of two-thirds of the members elected to each house, and it should be kept in mind that the word "measure," as used throughout this section, refers to the entire act voted on by the legislature — from its title to its last word — and not the emergency clause only. And by the term "passed" is meant that the act has received in the proper way the affirmative votes of two-thirds of the members of each house of the legislature; hence, the expression, "no such emergency measure shall be considered passed by the Legislature," clearly signifies that it shall not be treated or regarded as having become law at all. And just how, in view of this positive statement to the contrary, it can be held that it did become law, in the absence of a two-thirds vote, and operative later on, I do not understand. It could be interpreted to mean this only by reading into it additional language, such, for instance, as this: "No such emergency measure shall be considered passed at thattime," or "no such measure shall be considered passed as anemergency," or language indicating that a failure to receive a two-thirds vote would not interfere with its becoming a law but merely postpone its operative date, but nothing of this kind is there.

Another matter entitled to great weight in construing the meaning of this provision is the fact that the legislative branch of the government has given it this construction since its first session, twenty-two years ago. During all these years it has had among its membership many good lawyers and excellent citizens, some of whom helped write the Constitution, but no one of them, so far as my knowledge goes, has ever claimed that it should be given such a meaning. The legislature has proceeded at all times upon the theory that when an emergency act fails to receive a two-thirds vote, that clause should be stricken and the act passed as an ordinary measure. This construction is a practical one by the branch of government for whose guidance it was placed in the Constitution and should be given great, if not controlling, weight. To construe it as meaning that an emergency measure receiving less than two-thirds but more than a majority of the vote of each house becomes a law when approved by the Governor but not operative until ninety days after adjournment places the legislature in the anomalous position of enacting as an ordinary measure a law it desires to pass only as an emergency, a thing that was never contemplated by the framers of the Constitution. If the legislature desires to pass a measure as an emergency without running the risk of its receiving a vote of less than two-thirds of the members of either house and in consequence of this becoming an ordinary act, it was clearly intended that it should have this right. In addition, no one will be sure of his ground in examining the Session Laws, unless he first investigate the legislative journals and ascertain when a measure containing the emergency did in fact become operative.

The majority opinion is based upon the proposition that any member of the legislature who supports an emergency measure believes in the legislation it proposes and will support it in an ordinary act, a proposition the fallacy of which is illustrated by the situation that arose last year over the sales tax legislation, and this is merely one case that is typical. No one at all familiar with the situation confronting the legislature at that time would, I take it, contend for a minute that that body would have even attempted to pass the sales tax as an ordinary measure, because the members, as practically everyone acquainted with the circumstances was aware, knew that such an act had to become effective immediately or not at all, since it was so regarded at that time by the public that it would have been referred to the people if an opportunity to do so had presented itself, and not voted on until November, 1934. It seems clear that it was just as much the purpose and spirit of the emergency provision to give the legislature a right to pass on emergency measures disassociated from ordinary acts as it was to enable it to pass on ordinary acts disassociated from emergency measures. Even though it be true that the emergency deals only with the time an act takes effect the Constitution says specifically that a measure containing it shall not take effect at all (be considered passed) unless it receives a two-thirds vote.

The majority give three reasons for reversing the ruling in the Cox-Stults case, but preliminary to them they state that inasmuch as the question does not directly involve private rights and since in all probability none of this character has been acquired under it there is no reason why it should not be reversed if the facts and the law render it necessary to do so. This is clearly correct and if it appeared that the holding was wrong I would not hesitate a moment to set it aside.

But I desire to consider briefly the reasons given for this action, the first one being that no authorities were cited in support of the ruling in that case. This statement is made in the face of the fact that the majority must know that there is not another Constitution in the land having a provision like, or even similar to, the Constitution of Arizona which states as plainly as the English language can make it that "no such emergency measure shall be considered passed by the Legislature unless it shall . . . be approved by the affirmative votes of two-thirds of the members elected to each House of the Legislature," an expression so clear that a schoolboy can understand its meaning. What further authority is needed than the Constitution itself, when its language is so certain and unambiguous that there is no occasion for interpretation? It is the only authority on either side of the subject to be found anywhere, and this being true decisions from the courts of Oklahoma, Arkansas, Texas, North Dakota or Oregon have about as much relevancy to the question of the use of the emergency in Arizona as does the rule in Shelley's Case. What their courts may say about its function in their respective states would be entitled to as much weight here as the decisions from states in which contributory negligence as a matter of law still defeats a claim for damages would have in Arizona on that question. There is just as much reason for citing opinions from such jurisdictions on the one question as the other. Neither could possibly have the slightest relevancy.

The next ground advanced for reversal is that the opinion is based on a technical rather than a liberal construction and that this is contrary to the rule which governs the interpretation of the provisions of a Constitution. It is undoubtedly true that they should be construed to accomplish the evident purpose of the framers of that document, but it is not my understanding of liberality of construction that it goes to the extent of permitting a court under the guise of liberally interpreting language to set aside and absolutely nullify by judicial construction a provision that is so plain it cannot be misunderstood, and especially where the language of the Constitution itself provides that "the provisions of this constitution are mandatory, unless by express words they are declared to be otherwise." Section 32, art. 2, Constitution.

The people reserved in the Constitution the right to pass on all measures enacted by the legislature except certain ones needing earlier operation, and to allow the opportunity to refer these to a vote of the people the Constitution provides that none of the acts passed shall become effective until ninety days after the adjournment of the legislature, except those whose earlier operation is required. It became necessary, therefore, to formulate a plan by which such measures could become earlier operative, and the one the framers of the Constitution adopted to bring this about was the emergency clause which says: "Provided, that no such emergency measure shall be considered passed by the Legislature unless it shall . . . be approved by the affirmative votes of two-thirds of the members elected to each House of the Legislature." The letter and very spirit of the proposition is that since these emergency measures are to become immediately operative and the people's right to vote on them taken away they should not "be considered passed by the Legislature," that is, become law, unless two-thirds of the members of each house should vote for them. Before a measure can become effective at all, either immediately or at the expiration of ninety days, it is necessary that it first be passed — at least this has always been my view of the law — and if it does not receive that vote, I do not know how it can be considered passed, and the majority opinion does not tell me, though it proceeds upon the theory that this may be done. The language is not that two-thirds shall vote for it before it shall become operative but before it shall become a law at all, though according to the opinion of the majority it becomes effective ninety days after the legislature adjourns notwithstanding it has never passed. The opinion fails to point out, however, by what process of legerdemain this result may be brought about. There is no way it can be done except by walking over the body of this constitutional provision as it lies slain by the sword of judicial construction.

The third reason for setting aside the Cox-Stults holding is that the court in that case disregarded a unanimous decision rendered in Santa Cruz County v. McKnight in December, 1918. In that case it became necessary to pass on the contention whether chapter 80, Session Laws of 1917, which contained an emergency clause and passed both houses of the legislature by a two-thirds vote, was a bar to appellee's claim for salary, and the court said:

"This chapter did not take effect until 90 days after the adjournment of the session of the Legislature at which it was passed; it not having received the necessary approval of the Governor to make it an emergency measure."

Just ten months later, however, the exact situation presented itself in Clark v. Boyce and the court there held that the same measure did become effective as an emergency act, the Governor's tacit approval being sufficient for this purpose. This was a direct reversal of the ruling in the McKnight case that it did not become effective as an emergency but did become operative ninety days after adjournment. If, as the court correctly decided in the later case, an act, under such circumstances, becomes operative immediately, it does not do so ninety days later, since a measure cannot become effective on two different dates. A ruling which results from an admitted error and is made without discussion of the constitutional provision involved is not a very firm basis upon which to rest the rule of stare decisis. And the fact that the statement of the court in the McKnight case which again becomes the rule in Arizona was made without any serious deliberation is shown by the language of the court itself in overruling the holding in that cause. It said in Clark v.Boyce:

"In Santa Cruz County v. McKnight . . . and Ross v.Cochise County, 20 Ariz. 167, 177 P. 931, a contrary view as to when an emergency act takes effect, to what we here announce, was expressed. In neither of these cases was the question formally briefed or argued to the court, and the question was not given that consideration to which it was entitled. Besides, in neither case was it necessary to a decision."

It occurs to me that a ruling made in this way, and especially one having the effect of setting aside an important provision of the Constitution, could not be re-established as a guide for the legislature and the courts of this state with any very great degree of assurance as to its soundness.

The implication in the majority opinion that the construction given the emergency provision of the Constitution in the Cox-Stults case is a pernicious one has no legal effect and is, to say the least, of a tone that calls for no comment.

There is, to my mind, no question but that the framers of the Constitution intended that a measure containing an emergency clause should become effective immediately or not at all. Therefore, the act providing for anticipation bonds never became a law.