Rehearing Denied Feb. 15, 1955.
[78 Ariz. 268] Byrne & Byrne, Prescott, for appellant.
David H. Palmer, Jr., County Atty., Prescott, for appellees.
This is an appeal from a judgment of the Yavapai County Superior Court against appellant herein and in favor of the board of trustees of Oak Creek School District No. 16 and the members thereof, the election board of said school district and the members thereof, the board of supervisors of Yavapai County and the members thereof and Sarah Folsom, superintendent of schools of Yavapai County.
The facts are that an election was duly called for March 9, 1954, for the purpose of submitting to the qualified electors of Cottonwood School District and the qualified electors of Oak Creek School District No. 16, both of Yavapai County, the question of whether said school districts should be consolidated. The results of the election in Cottonwood School District was 306 votes in favor of consolidation and 11 votes against; and in Oak Creek School District No. 16 there were 76 votes cast in favor of consolidation and 75 against.
The court will hereinafter refer to said districts as Cottonwood and Oak Creek districts. The count of the election boards of Oak Creek and Cottonwood districts was reported to the superintendent of schools of Yavapai County and on March 15, 1954, the county school superintendent and the chairman of the board of supervisors canvassed said vote as provided by law and on that date confirmed the court of the election
boards in both districts and declared Oak [78 Ariz. 269] Creek district to be consolidated with Cottonwood district.
Appellant immediately brought this action against the above-named appellees contesting the declared result of the election alleging that the election board of Oak Creek district wrongfully denied one Emmitt McMenamin and his wife Stella the right to vote at said election; that they were both qualified electors of Oak Creek district on said date; that if they had been permitted to vote they both would have voted against such consolidation and in that event the vote at said Oak Creek district would have been 77 votes against and 76 for consolidation thereby defeating said consolidation.
Upon hearing, the trial court found in effect that Emmitt and Stella McMenamin were not residents of Oak Creek district and therefore not qualified electors of Oak Creek district on March 9, 1954. The specific finding insofar as here material was that no qualified electors of Oak Creek district were refused the right to vote at said consolidation election. It found, as a conclusion of law, that Emmitt McMenamin and Stella McMenamin, his wife, were not duly qualified electors of Oak Creek district on the date of such election and that the consolidation of the two districts was not erroneous and void and that the school board at said district was not guilty of malconduct in denying them the right to vote in said election. The court thereupon by its judgment duly entered, validated the consolidation of said districts.
Appellant has presented two assignments of error for our consideration both of which raise the same question, to wit: Were Emmitt and Stella McMenamin wrongfully denied the right to vote in Oak Creek district on the question of consolidating that district with the Cottonwood district? If they were wrongfully denied that right the judgment of the trial court must be reversed. If not, it must be sustained. If they were qualified electors of Oak Creek district they were wrongfully denied the right to vote. If they were not qualified electors they were properly prevented from voting.
Section 55-201, A.C.A.1939, as amended 1953 provides that:
'Every resident of the state is qualified to become an elector and may register to vote at all elections authorized by law if he: 1. Is a citizen of the United States; 2. will be twenty-one (21) years of age or over prior to the regular general election next following his registration; 3. will have been a resident of the state one year and of the county and precinct in which he claims the right to vote thirty (30) days next preceding such election; * * *'
Emmitt and Stella McMenamin registered to vote on March 8, 1954, by filling out the affidavit prescribed by law for that purpose and duly acknowledged the same [78 Ariz. 270] before a qualified and acting registration officer. The affidavits of each of them showed their residence to be Clemenceau, county of Yavapai, state of Arizona, and gave their post-office address as the same. The affidavit also showed their precinct as Oak Creek precinct. Clemenceau is located in the Cottonwood district and not in Oak Creek district.
Emmitt McMenamin has been employed by the Yavapai County highway department for nearly seven years. For the past three years he has actually lived in Centerville which is about three-fourths of a mile south and west of Clarkdale and is not in Oak Creek district. Immediately prior to that date he lived in Clemenceau for about six months. He and his wife have received their mail through the Clemenceau Post Office except the testimony shows that they have received some two or three letters at Cornville in Oak Creek district. Section 55-512, A.C.A.1939, in prescribing the rules by which an election board may determine the place of residence of a person insofar as material in the instant case is as follows:
'1. That place is the residence of a person wherein his habitation is fixed and to which whenever he is absent he ...