Jerman & Jerman, Greenfield & Flynn, all of Phoenix, for appellant.
Fred O. Wilson, Atty. Gen., Earl Anderson, Asst. Atty. Gen., for appellee.
Stanford, Justice. La Prade, C. J., and Udall, Phelps and De Concini, JJ., concur.
[70 Ariz. 355] The appellant, Thad M. Moore, who meets the constitutional qualifications to hold the office of Governor of this state, filed his action in the superior court asking for a declaratory judgment. The appellant is at the present time a duly elected, qualified and acting member of the Arizona State Tax Commission. His term of office does not expire until the month of January, 1953.
Appellee, Wesley Bolin, is the duly elected Secretary of State of the State of Arizona.
Appellant was desirous of seeking the gubernatorial nomination on the democratic ticket at the primary election to be held in Arizona in September, 1950, without resigning his office as State Tax Commissioner. He asks that chapter 68, Laws of 1949, (known also as section 12-110, A.C.A.1939) which forbids an incumbent state officer in mid-term from being a candidate for another state office, be declared unconstitutional.
There are a number of reasons advanced by the appellant as to the unconstitutionality of the act in question but we deem it unnecessary either to state or consider these objections for the reason that appellee urges upon us, i. e. that the plaintiff's complaint does not present a justiciable controversy between plaintiff and defendant that is ripe for adjudication.
The act referred to was enacted by our legislature in 1949 and is as follows:
"Incumbent filing for election. -- (a) No person shall hold more than one (1) office at the same time, nor shall any incumbent of an elective office, whether holding by election or appointment, be eligible for nomination or election to any office other than the office being so held, nor shall the nomination papers of any such person be accepted for filing. This section shall not be construed to prohibit a person whose resignation from office has become effective, from qualifying as a candidate for another [70 Ariz. 356] office during the unexpired portion of the term affected by such resignation. The resignation of any such person, duly filed in writing with the officer, board or commission having jurisdiction of the same, shall, if not accepted within ten (10) days, be deemed to have become effective. This section shall not apply to any incumbent elective office holder who shall seek reelection to the same office or to any other public office, during the final year of the term to which he shall have been so elected.
"(b) Any person violating this section shall be guilty of misfeasance in office, and the office held by such person ...