State ex rel. Nelson v. Yuma County Board of Supervisors

HAYS, Chief Justice. The Attorney General filed a Petition for Special Action with this court, alleging [449] that the Yuma County Board of Supervisors had announced its intention of appointing a current member of the Arizona House of Representatives, Honorable Jones Osborn, to fill the vacancy in the Arizona Senate created by the untimely death of Senator Harold Giss. He sought an order prohibiting this appointment. We accepted jurisdiction of the petition for special action, denied the relief sought by the Attorney General, and indicated that our decision would be forthcoming at a later date. The provision at issue, article IV, part 2, section 5 of the Arizona Constitution, A. R.S., reads as follows: “No member of the Legislature, during the term for which he shall have been elected or appointed shall be eligible to hold any other office or be otherwise employed by the State of Arizona or, any county or incorporated city or town thereof. . . .” Does this provision prohibit a member of the House of Representatives from being appointed to fill a vacancy in the Senate? We hold that it does not. Admittedly, a purely legalistic argument can be advanced to support petitioner’s position. A reading of all of part 2 of article IV of the Arizona Constitution indicates a number of references'to “Legislature” used in the context of a single unit. If the result argued for by the Attorney General had been desired by the drafters of the constitutional amendment here in question, it would have been a simple matter to use the words, “No member of the Senate or the House of Representatives . . rather than the words, “member of the Legislature.” It appears to us that the most reasonable interpretation of the subject provision is to hold that “member of the Legislature’’ is the office with which section 5 is concerned; hence, an appointment from House to Senate is within the same office. We are further persuaded in our position by referring to the history of this section which was presented to the voters of Arizona by way of initiative petition in 1938. There was concern that members of the Legislature might create positions for their own gain, or otherwise be subjected to pressures from the executive branch. In a move from House to Senate, we find nothing inherent which represents the evil sought to be prevented. We therefore believe that there is no constitutional impediment to the appointment by the Yuma Board of Supervisors of a qualified and experienced member of the House of Representatives to fill the Senate vacancy. Petition for Special Action dismissed. STRUCKMEYER, and LOCKWOOD, JJ., concur. CAMERON, V. C. J., did not participate in the determination of this matter. WILLIAM E. EUBANK of the Court of Appeals, Judge, Division One, was called to sit in his stead.