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Whitney v. Bolin

Supreme Court of Arizona

October 22, 1958

Harold E. WHITNEY, Petitioner,
v.
Wesley BOLIN, Secretary of State of the State of Arizona, Respondent.

[85 Ariz. 45] Scott, Cavness & Yankee, Phoenix, for petitioner.

Robert Morrison, Atty. Gen. of Arizona, for respondent Wesley Bolin.

Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, for Charles C. Bernstein.

STRUCKMEYER, Justice.

This action was an original petition in mandamus to compel Wesley Bolin, Secretary of State of the State of Arizona, to designate the office of Judge of Division 2 of the Superior Court of Maricopa County, Arizona as an office for which candidates were to be nominated at the primary election on September 9, 1958. The petition in this cause was filed just prior to

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recess by this court on July 15, 1958. After oral argument and consideration of the points made by the parties hereto, we directed that the application for the writ be [85 Ariz. 46] denied. Because of the constitutional question involved, we further ordered that a written opinion issue following the summer recess.

Petitioner Harold E. Whitney alleged that the Honorable Charles C. Bernstein was elected to the office of Judge of the Superior Court of Maricopa County for a term commencing in Junuary of 1957 and ending in January, 1961, and that he entered upon the duties of the office, becoming the presiding Judge of Division 2 of the Superior Court of Maricopa County; that thereafter he filed with respondent Wesley Bolin as Secretary of State, nomination papers qualifying him as candidate for the office of Judge of the Supreme Court of Arizona. It is further alleged that by so doing, the office of Judge of the Superior Court of Division 2 became vacent; that by reason thereof, petitioner filed with the Clerk of the Board of Supervisors of Maricopa County nomination papers as a candidate therefor, subject to the Democratic primary on September 9, 1958; that petitioner was informed that his nomination petitions could not be accepted because respondent Wesley Bolin as Secretary of State did not list a vacancy in the office of Judge of Division 2 of the Superior Court of Maricopa County. We were asked to require respondent to comply with the provisions of § 16-501, A.R.S.1956 by designating the office of Judge of Division 2 of the Superior Court of Maricopa County as an office for which candidates were to be nominated at the primary election.

The act which petitioner desired the Secretary of State to perform is ministerial and as such, its performance may be commanded by mandamus. Adams v. Bolin, 74 Ariz. 269, 247 P.2d 617, 33 A.L.R.2d 1102. However, respondent while admitting that he had refused to designate the office of Judge of Division 2 of the Superior Court of Maricopa County, Arizona, as an office for which candidates were to be nominated at the primary election on September 9, 1958, urged that § 38-296 A.R.S.1956, if applied to restrict the right of a Superior Court Judge to run for the Supreme Court during his term of office as a Superior Court Judge, would be unconstitutional and void.

Section 38-296 provides in substance that no incumbent of an elective office shall be elighble for nomination or election to any office other than the office so held. As a penalty for violation it is provided that '* * * the office held by such person shall be declared vacant.' Assuming for the purpose of this opinion that the penalty provision is self-executing, it is plain that were the statute enforceable in the present case, then Charles C. Bernstein, as Judge of the Superior Court of Maricopa County, by filing petitions for nomination for the Supreme Court, was disqualified [85 Ariz. 47] from any longer holding the office of Judge of the Superior Court, and a vacancy was created thereby, for which office candidates might have submitted their qualifications to the electorate at the primary election.

In deciding whether § 38-296 has application to judicial offices, we consider that the power of the legislature is plenary and unless that power is limited by express or inferential provisions of the Constitution, the legislature may enact any law which in its discretion it may desire. Roberts v. Spray, 71 Ariz. 60, 223 P.2d 808. We consider also that every intendment must be indulged by the court in favor of the constitutionality of legislative enactment. Giss v. Jordan, 82 Ariz. 152, 309 P.2d 779.

The Constitution of this state in Art. 6, § 13, A.R.S., provides for the qualifications of Judges of the Supreme Court:

'No person shall be eligible for the office of judge of the Supreme Court, unless he shall be learned in the law, at least thirty years of age, and shall have been a judge of, or admitted to practice before, the highest court of Arizona for at least five years, and

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shall have been a resident of Arizona for five years next preceding his election.'

It is apparent that if a Judge of the Superior Court is not eligible for nomination or election to the office of Judge of the Supreme Court, then an additional qualification, both new and distinctive, has been superimposed upon those specified in the Constitution.

It is our opinion that the constitutional specifications are exclusive and the legislature has no power to add new or differnt ones. The qualifications fixed in the Constitution are exclusive for the reason that if it were not intended by the framers thereof to fix all the qualifications, then it must have been intended to fix only a part and leave it to the legislature to fix others. Such a view is inconsistent with accepted constitutional construction that the enumeration of certain specified things in a constitution will usually be construed to exclude all other things not so enumerated. Positive directions in a constitution contain an implication against anything ...


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