Richard F. HARLESS, Petitioner,
Lorna E. LOCKWOOD, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent.
[85 Ariz. 98] Richard F. Harles, Phoenix, in pro. per.
George N. Hill and John E. Savoy, Phoenix, for respondent.
UDALL, Chief Justice.
This is an original proceeding in mandamus initiated by petitioner, Richard F. Harless, seeking to compel respondent, Lorna E. Lockwood, presiding judge of Division 5 of the Superior Court of Maricopa County, to hear and determine a pending primary election contest wherein the petitioner was the contestant and Joe Haldiman, Jr., the contestee. After an informal hearing held under the provisions of Rule I (Rules of the Supreme Court, 17 A.R.S.) we issued an alternative writ of mandamus on October 16, 1958, returnable the next day, at which time the matter was orally argued and briefs submitted. Time being of the essence immediate consideration was given to said matter and on October 21, 1958, by an appropriate minute entry, this court ordered that the alternative writ of mandamus theretofore issued be made peremptory and stated that a written decision in accordance with the constitutional requirement (article 6, section 2, A.R.S.), would follow. We now state our reasons for such action.
First we shall more fully recite the facts giving rise to the instant proceeding: Petitioner Harless, and Joe Haldiman, Jr., were rival candidates for the Democratic nomination for Representative in Congress (District No. 1), at the primary election held on September 9, 1958. Haldiman was declared the winner and a certificate of
nomination was issued to him. Shortly thereafter Harless filed a statement of contest[85 Ariz. 99] in the superior court. Haldiman moved to dismiss it. The case was assigned to respondent, Judge Lockwood, who after hearing arguments entered the following order on October 15, 1958, vix.:
'It is ordered granting the contestee's motion to dismiss, on the ground that the court lacks jurisdiction to hear the particular action.'
On the same day this order was entered Harless filed a petition with this court asking for an alternative writ of mandamus, which was issued with the result heretofore stated.
It is apparent the respondent judge became convinced that in Arizona there is no statutory authority for an election contest by a candidate for Representative in Congress, hence she held the court had no jurisdiction to proceed with a hearing on such a matter. The correctness of this conclusion coupled with petitioner's right to the relief sought by way of mandamus are the questions to be considered.
The pertinent statutory provisions are as follows:
A.R.S. § 16-505.
'Contests arising out of primary elections shall be brought and determined in the same manner, as nearly as possible, as provided by law for contests of general elections.'
A.R.S. § 16-1201.
'A. Any elector of the state may contest the election of any person declared elected to a state office, or declared nominated to a state office at a primary election, * * *.' (Emphasis supplied.)
Counsel for respondent places great reliance upon a decision from the Texas Court of Civil Appeals, entitled Lane v. MaLemore, 169 S.W. 1073, which most nearly supports their position that a contest would not lie in the instant case.
The law is well settled in this jurisdiction that election contests are purely statutory, unknown to the common law, and are neither actions at law, nor suits in equity, but are special proceedings. Grounds v. Lawe, 67 Ariz. 176, 193 P.2d 447. Furthermore, there can be no doubt but that a member of Congress is not, strictly speaking, a state officer. He does not represent the state, but represents the people of the United States in the district from which he is elected. He is a United States officer. State ex rel. Carroll v. Becker, 329 Mo. 501, 45 S.W.2d 533. Does it follow then, that the legislature of Arizona, by failing to enumerate the office in question in section 16-1201, supra, has failed to make provisions for election contests, in either primary or general elections, by those who seek to be our representatives in the Congress? We think not. To so hold would be an affront to the intelligence of the legislators and adoption of a [85 Ariz. 100] most narrow interpretation of the legislative intent when the historical background of the legislation along with the Constitution and present statutes dealing with election matters are considered as a whole.
The holding of primary elections to nominate candidates for federal offices is strictly a state affair. Newberry v. United States,256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913. The authority for such an election ...