APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. judgment affirmed.
Mr. Henderson Stockton, in Propia Persona, and Mr. S. N. Karam and Mr. J. W. Cherry, Jr., for Appellant.
Mr. Chas. A. Carson and Mr. F. C. Struckmeyer, for Appellee Ernest W. McFarland.
Mr. Joe Conway, Attorney General, and Mr. Earl Anderson, Special Assistant Attorney General, for Appellee State of Arizona.
[56 Ariz. 139] LOCKWOOD, J.
Henderson Stockton, hereinafter called plaintiff, filed an action in the superior court of Maricopa county against Ernest W. McFarland, hereinafter called defendant, and the State of Arizona. The complaint alleges, in substance, that plaintiff had duly qualified himself, under article X, chapter 22, Revised [56 Ariz. 140] Code of 1928, to become a candidate for the Democratic nomination for the United States Senate, at the primary to be held on September 10, 1940, and that defendant had in like manner qualified as a candidate for the same office at the same primary. He alleged, however, that defendant was ineligible to run for or hold the office of United States Senator, or to have his name placed upon any ballot to be used in the primary election for that office.
The reasons set forth for such ineligibility were that defendant had theretofore, in 1938, been elected as judge of the Superior Court of the State of Arizona, in and for Pinal County, for a term commencing in January, 1939, and ending in January, 1943, and that he was, at all the times referred to in the complaint, the duly elected qualified and acting judge of such superior court his term not expiring until January, 1943, and that this made him ineligible for the office of United States Senator because of the limitations of article VI, section 11 of the Constitution of Arizona, which reads, as follows:
"Judges of the Supreme Court and judges of the superior courts shall not be eligible to any office or public employment other than a judicial office of employment, during the term for which they shall have been elected."
The prayer of the complaint is for a declaratory judgment that defendant is ineligible to run for or have his name appear on any official primary ballot for the office to United States Senator, or to hold such office during the period from January, 1939, to January, 1943.
The State of Arizona was made a party to the action on the ground that it was, in some manner not specified, interested in the subject matter and in the relief sought.
[56 Ariz. 141] Defendant and the State filed a motion to dismiss the action. The matter came on for hearing, and the superior court sustained the motion to dismiss, without leave to amend the complaint, and judgment was rendered accordingly, whereupon this appeal was taken.
Both the oral argument and the briefs filed on the appeal are replete with political discussions and criticisms of each party by the other, and reference to many matters not material to the action. So far as the courts are concerned, the questions submitted, although they do have a political effect, must be decided solely on the law as it exists, and not on the political and moral animus differendi of the respective parties.
The particular issue, which we are asked to decide, is whether, under the admitted facts of the case, the provisions of article VI, section 11, supra, made defendant ineligible for the office of United States Senator from Arizona during his term of office as judge of the superior court. There are a number of procedural questions which we might consider, but in view of the fact that this is not the first instance where a judge of the superior court has run for a federal office, and there have been more cases in which it has been credibly reported that various judges were considering making such a race, we think it better that the case be decided on its merits, so that the eligibility of judges for the United States Congress may be finally determined.
The precise question, determinative of the issue, is whether a state, through its Constitution or statutes, can add to or take away from the qualifications for a member of Congress prescribed by the Constitution of the United ...