APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment reversed and case remanded with instructions.
Messrs. Patterson & McFate, for Appellant.
Messrs. Morgan & Locklear, for Appellee.
[59 Ariz. 404] LOCKWOOD, C.J.
T. H. Wilson, plaintiff, applied to the superior court of Yavapai county for a writ of prohibition against the board of supervisors of said county, defendants, prohibiting them from canvassing the result of a certain recall election which was held of February 17, 1942. The alternative writ was issued, and Walter Miller, intervener, asked permission to appear in the proceedings. His request was granted and the matter was heard by the court, and the alternative writ made permanent, whereupon intervener appealed.
The material facts upon which the proceeding is based are agreed to by counsel, and may be stated [59 Ariz. 405] as follows: On January 9, 1942, a recall petition in due form was filed with the clerk of defendants, asking for the recall of plaintiff from the office of justice of the peace of Seligman justice precinct. On January 19 defendants made an order for a recall election to be held on February 17. Subsequent thereto intervener became a candidate for justice of the peace at said election. The election was held on the date designated, and intervener received a majority of all the votes cast for the office of justice of the peace of Seligman precinct. Return was duly made of the result of the election to defendants, and February 24 being the date set for canvass of the return, plaintiff filed his petition for a writ of prohibition as above set forth.
It is agreed by counsel there are three questions of law involved in this appeal: (a) Is there a method provided by law for recalling justices of the peace, (b) if so, was this method properly followed in the recall proceedings, and (c) is prohibition a proper remedy to question the validity of the recall election under the facts above set forth?
Article 8 of the Constitution of Arizona governs the question of removal from office. Section 1 thereof reads, so far as material, as follows:
"(Recall petitions.) -- Every public officer in the state of Arizona, holding an elective office, either by election or appointment, is subject to recall from such office by the qualified electors of the electoral district from which candidates are elected to such office...."
Section 2 provides directions as to the form of recall petitions, and contains the following language:
"(Form of petitions.) -- Every recall petition... must be filed in the office in which petitions for nominations to the office held by incumbent are required to be filed...."
It is admitted that the petition was in the form provided by ...