HUNT et al.
SUPERIOR COURT IN AND FOR NAVAJO COUNTY et al
Original proceeding by Ben R. Hunt and others, as the members and clerk, respectively, of the Board of Supervisors of Navajo County, Arizona, against the Superior Court of the State of Arizona in and for the County of Navajo and another for a writ of prohibition to prevent respondents from issuing an injunction enjoining petitioners from printing the name of Bruce Gardner on the ballot as a candidate for Democratic nomination for clerk of the Superior Court of Navajo county.
Alternative writ made permanent.
Dodd L. Greer, Co. Atty., of Holbrook, for petitioners.
C. D. McCauley, of Winslow, for respondents.
Morgan, Judge. Stanford, C. J., and La Prade, J., concurring.
[64 Ariz. 327] The facts in this case are not in controversy. Victor E. Westover and Bruce Gardner, within the time provided by law, filed petitions and nomination papers as Democratic candidates at the July 16 Primary, for Clerk of the Superior Court of [64 Ariz. 328] Navajo County. On May 6, Westover filed objections with the petitioners, members and clerk of the board of supervisors of said county, questioning the sufficiency of Gardner's nomination papers, upon the ground that although one hundred and ten persons had signed, nineteen were not qualified, and that in fact only ninety-one qualified electors had signed, eight less than ninety-nine, the number required by law. He demanded that Gardner's name be not printed on the ballot. This protest and demand was disregarded by the board. On May 31, Westover filed in the Superior Court of Navajo County, complaint and application for injunction to prohibit petitioners from printing Gardner's name upon the ballot. Hearing was set by the respondent court for June 5.
On June 4, petitioners presented to us their petition for writ of prohibition against the respondent, upon the ground that the court had no power to issue the injunction prayed for. The alternative
writ was issued, with returnable date June 11. Respondent has answered that unless prohibited by this court, if the evidence discloses only ninety-one qualified electors signed Gardner's nomination papers, an injunction will be issued enjoining petitioners from printing Gardner's name on the ballot. If the superior court has power to do this, the writ should be discharged. If not, it should be made permanent.
The law does not specifically grant power to the courts to decide whether a nomination paper is sufficient. Ordinarily, since the question is of a political nature, the courts, in the absence of a statute expressly conferring such power, have no jurisdiction. 18 Am.Jur. 273, sec. 143, Elections. We have no statute expressly conferring jurisdiction on the courts to determine the validity of a nomination paper. We have held, however, that "the validity of a candidate's papers when on their face they substantially comply with the terms of the statute" is not for the ministerial officers but for the court. Sims Printing Co. v. Frohmiller, 47 Ariz. 561, 58 P.2d 518, 522.
The right of a candidate to have his name printed on the ballot is statutory. Such a petition must be signed by a sufficient number of qualified electors. A qualified elector is one who has complied with the election laws, and who is registered as a voter at the time he signs the petition. Ahrens v. Kerby, 44 Ariz. 269, 37 P.2d 375; Sims Printing Co. v. Frohmiller, supra. Since the right to nomination is statutory, and obviously no other adequate remedy exists, upon the application of an elector who has an interest, injunction is the proper remedy to restrain an election official or board from acting upon an invalid petition for nomination. Soper v. Jones, 171 Md. 643, 187 A. 833; In re Hylan, 242 A.D. 260, 275 N.Y.S. 522, affirmed 265 N.Y. 607, 193 N.E. 342; Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753. Nor would section 26-104, ACA [64 Ariz. 329] 1939, which prohibits the issuance of an injunction "* * * to prevent the execution of a public statute, by officers of the law, for the public benefit," prevent the court from enjoining the printing of candidate's name on the ballot after hearing and before the time allowed by law for such inclusion. In the late case of Crane Co. v. Arizona State Tax Commission, Ariz., 163 P.2d 656, we reviewed all prior cases construing this statute, and held, in effect, that notwithstanding its provisions, after hearing an injunction might issue if it appeared that the board was acting illegally or in excess of its powers.
Notwithstanding what has been said, it is the rule that the court may not enjoin an adminstrative board after the time the law imposes a mandatory duty upon it to perform the act. The injunction can issue only in advance of that time. Thus, a court of equity cannot prevent the certification of a candidate's name after the time arrives when it must be certified in order to be placed upon the ballot. If, by the law, within a certain period the board or officer is required to either certify the nomination or perform some other act which will allow the candidate's name to be printed on the ballot, it must be presumed that the board or officer has performed its or his duty, and that such act has been performed. This being so, a case to prohibit such action, brought after ...