State Ex Rel. Sawyer v. LaSotaState Ex Rel. Sawyer v. LaSota
This petition for writ of quo warranto was commenced as an original action in this Court by Ed Sawyer, a Member and President of the Arizona State Senate, Alfredo Gutierrez, Member and Majority Leader of the Arizonа State Senate, and A. V. Hardt, Member and Chairman of the Appropriations Committee of the Arizona State Senate, against John A. LaSota, Jr. as Attorney General. Prayer for relief denied and Petition ordered dismissed.
Petitioners allege that they аre citizens and taxpayers of the State and have the responsibility to ensure that appropriate laws are enacted and enforced and that expenditures are effectively аnd properly made without waste in all matters relating to the government of the State of Arizona. They further allege that the respondent, John A. LaSota, Jr., was named by appointment as Attorney General and presently holds the office; that he is not qualified to hold the office in that by statute
Petitioners requested respondent to bring a quo warranto proceeding pursuant to
“The public business demands a prompt judiсial inquiry and a final determination of the actions of the respondent in allegedly unlawfully usurping, holding, and exercising so vital an office as that of Attorney General.”66 Ariz. 348 , 353,188 P.2d 592 , 595 (1948).
By Art. 6, § 5, ¶ 1, of the Constitution of Arizona, the Supreme Court has “original jurisdiction of habeas corpus, and quo warranto, mandamus, injunction and other extraordinary writs to state officers.” While the quoted language of Art. 6, § 5 is derived from the constitutional amendment adоpted at the general election held November 8, 1960, from statehood this Court has had original jurisdiction in quo warranto and mandamus “as to all state officers.” Art. 6, § 4, Constitution of Arizona, approved February 9, 1911. Accordingly, we construe the grant in Art. 6, § 5, ¶ 1, as meaning the power to issue extraordinary writs as under the common law of England.
In
People v. Wood,
“The information, as any other criminal action, was under the exclusive and arbitrary control of the Attorney General. His discretion could not be coerced and leave of court to file the information was not required. A private citizen could no more prosecute such a proceeding than he could prosecute in his own name for any other crime.”104 N.E.2d at 803 .
Arizona follows closely the common law. By
“A. An аction may be brought in the supreme court by the attorney general in the name of the state upon his relation, upon his own information or upon the verified complaint of any person, in cases whеre the supreme court has jurisdiction, or otherwise in the superior court of the county which has jurisdiction, against any person who usurps, intrudes into or unlawfully holds or exercises any public office or any frаnchise within this state.
B. The attorney general shall bring the action when he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised.”
By
“A. If the attorney general * * * refuses to bring an action as provided for in§§ 12-2041 and 12-2042, upon information or at the request of any person claiming such office or frаnchise, the person may apply to the court for leave to bring the action in his own name and may so bring it if leave therefor is granted.”
The foregoing statutes do not restrict the common law right of quo warrant. They are simply cumulative thereto in that a private person, claimant of an office, may bring the action, thereby ameliorating the strictness of the common law rule.
“By the express provisions of the statute a private party can only bring quo warranto when he, himself, claims the office or franchise in question. This plaintiff does not do.” Skinner v. City of Phoenix,54 Ariz. 316 , 323,95 P.2d 424 , 427 (1939).
And see
Tracy v. Dixon et al.,
It is urged, however, that we have expressly held that a nonclaimant could bring an action challenging the legality of the holding of the Office of Attorney General, citing
State ex rel. De Concini v. Sullivan,
supra. We do not so read that case. There, the elected Attorney General of the State was John L. Sullivan. He was convicted of the crime of conspiring to violate the gambling laws of the State. Under a statute which provided that an office was deemed vacant when the incumbent was convicted of a felony or of any offense involving a violation of his official duties, the Governor аppointed Evo De Concini to the office and he qualified by filing the oath and bond required by law. Palpably, when Sullivan refused to surrender the office, De Concini was a claimant within the meaning of
While we hold that petitioners may not maintain this action as one in quo warranto, the Attorney General, like any other public officer, may not arbitrarily refuse to discharge the duties of his office. An original petition аddressed to this Court will be given effect irrespective of its name.
Buell
v.
Superior Court of Maricopa County,
“We think the statute authorizing an action in the nature of quo warranto does not make it mandatory upon the district attorney to institute such action, unless he has reason to believe that an offiсe or franchise is being usurped, intruded into, or unlawfully held or exercised. It is, however, his duty to bring such proceedings when facts are laid before him from which he can reasonably conclude that such franchise is being usurped. If, on such showing, he fails to institute such proceedings, his action can be reviewed upon an application for mandamus; * * *
This was followed by
Duffield v. Ashurst,
“We have already had occasion to hold, in applying this statute, thаt, where the facts presented to the district attorney show as a matter of law that a franchise is unlawfully being exercised and are not in dispute, the refusal by the district attorney to institute the quo warranto proceеdings is a violation of his duty, and that we may compel him to perform that duty by our writ of mandate.”
We therefore examine the facts of this case to determine whether as a matter of law respondent has usurped the Office of Attorney General. We have concluded that he has not.
By the Constitution of Arizona, Art. 5, § 1, the Executive Department shall consist of the Governor, the Secretary of State, State Treasurer, Attorney General and Superintendent of Public Instruction. Section 2 of Art. 5 sets forth the eligibility to State offices in this language:
“No person shall be eligible to any of the offices mentioned in Section 1 of this article except a * * * person of the age of not less than twenty-five years, who shall have been for ten years next preceding his election a citizen of the United States, and for five years next preceding his election a citizen of Arizona.”
No other conditions to holding of the Executive Department offices can be found, and no others may be imposed by the Legislature.
In a continuous line of cases commencing over 60 years ago, it has been held that the Legislature has no power to add new or different qualifications for a public office other than those specified in the Constitution. In
Campbell v. Hunt,
“The qualifications for Governor are specifically detailed in the Constitution, and the Legislature is therefore powerless to add to or detract from the qualifications presсribed. No citation of authority is necessary here.”
And in
Whitney v. Bolin,
“It is our opinion that the constitutional specifications are exclusive and the legislature has no power to add new or different ones. The qualifications fixed in the Constitution are not exclusive for the reason that if it were not intended by the framers thereof to fix all the qualifications, then it must have been intended to fix only a part and leave it to the legislature to fix others. Such a view is inconsistent with accepted constitutional construction that the enumeration of certain specified things in a constitution will usually be construed to exclude all оther things not so enumerated. Positive directions in a constitution contain an implication against anything contrary to them. Indeed, were the framers to intend otherwise, they would have created the office with directions that the legislature could or should fix other qualifications.”
We conclude that