[81 Ariz. 238] Nasib Karam, Nogales, Joseph P. Ralston, and Perry M. Ling, Phoenix, for petitioner.
Gordon Farley, Nogales, in pro. per., Richard D. Walker, Florence, and Douglas H. Clark, Phoenix, for respondents.
Neilson Brown, as petitioner, sought an original writ of prohibition in this court directed to the Superior Court of the State of Arizona, in and for the County of Santa Cruz, and Honorable Gordon Farley, presiding Judge thereof (hereinafter designated respondents), to require respondents to desist and refrain from any further proceedings in a primary election contest then pending in said court. Because time was of the essence, we waived compliance by petitioner with Rule 1(c), Rules of Supreme Court, and forthwith issued an alternative writ of prohibition. The return date was set for November 1st (all dates herein refer to year 1956), and with all parties represented the matter was heard on its merits on November 2d, at which time this court, being fully advised in the premises, entered an order 'that the alternative writ of prohibition * * * is made peremptory, a written opinion to follow later.' In obedience to our constitutional mandate, article 6, section 2, we now state our reasons for such action.
The record discloses the following situation: petitioner, Neilson Brown, was one of three candidates for the Democratic party's nomination for two nominees for the office of state senator of Santa Cruz county in the primary election held on September 11th. The board of supervisors of such county completed the canvass of the election returns on September 17th, and it then declared petitioner and C. B. Smith to be the two nominees of the Democratic party for this office and, on September 22nd, issued to said petitioner a certificate of nomination. R. G. Michelena of Nogales, the losing party in this three-cornered primary race, on October 19th filed a statement of contest against petitioner alleging that due to an erroneous count Senator Brown did not actually receive a greater number of votes cast for the office than contestant, and also alleged that illegal votes were cast. Contestee Brown moved for summary judgment on the ground that the contest had not been filed within the period (20 days) allowed by law and, hence, the court was without jurisdiction. The motion was denied on October 30th, at which time an order was entered directing that an inspection and recount of the ballots should begin on November 1st. This petition for prohibition was then filed. As the general election[81 Ariz. 239] was to be held on November 6th, it was obvious there would be no time for an appeal, and, as a question of jurisdiction was involved, we entertained this original application for prohibition in order that the matter might be promptly resolved.
At all times it has been the position of respondents-who were represented by counsel for contestant Michelena-that (a) the office of state senator is a state office, (b) under the state constitution and statutes the secretary of state-in the presence of the governor and attorney general-is the only party authorized to canvass the returns for all state offices, and (c) that such canvass was made on October 1st when a certificate of nomination signed by the secretary of state was issued to petitioner.
Two of respondents' contentions, i. e. (a) and (c), supra, can readily be disposed of. First, it is established in this jurisdiction that members of the legislature are state officers. State ex rel. Jones v. Lockhart, 76 Ariz. 390, 265 P.2d 447. Secondly, we held in the case of Adams v. Bolin, 74 Ariz. 269, 247 P.2d 617, 33 A.L.R.2d 1102, that the Supreme Court would take judicial notice of the official records as to election matters on file in the office of the secretary of state. We find from an examination thereof that in the instant case respondents' contention the secretary of state canvassed the primary election returns as to members of the legislature
is incorrect. Hence, a certificate, if any was issued by such officer to petitioner stating he was one of the nominees for state senator, was wholly unofficial as it certainly had no basis upon which to rest.
It is fundamental that rules governing election contests are purely statutory, Grounds v. Lawe, 67 Ariz. 176, 186, 193 P.2d 447, and this statement appears in 29 C.J.S., Elections, § 259:
'Requirements as to the time within which the contest must be brought are regarded as mandatory, and unless strictly complied with the court is without jurisdiction to proceed.' (Emphasis supplied.)
In determining whether the contest was timely filed the real question is, when did time begin to run? It is respondents' contention that completion of the state canvass started time running; if this be true then the court did have jurisdiction to try the matter. However, if as petitioner asserts time began to run from either the completion of the canvass or issuance of a certificate of nomination to petitioner by the board of supervisors, then obviously the court was without jurisdiction.
In order to resolve the problem presented it is necessary to examine and analyze the pertinent statutes relative to the canvassing of primary election returns and issuance of certificates of nomination as well as the statutory provisions governing[81 Ariz. 240] contests of election. All sections of the code hereafter cited are from A.R.S.1956.
Section 16-504 reads in part:
'A. A primary election shall be held, the voters shall vote therein, * * * the votes shall be counted and canvassed, the returns shall be made, all in the same manner as provided for a general election, and shall otherwise conform to the laws governing ...