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Bolin v. Superior Court In and For Maricopa County

Supreme Court of Arizona

December 18, 1958

Wesley BOLIN, as Secretary of State of the State of Arizona, Petitioner,
v.
The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF MARICOPA, Honorable Warren L. McCarthy, a Judge thereof, and E. J. O'Malley, Respondents.

Page 296

[85 Ariz. 133] Robert Morrison, Atty. Gen., McCarty, Chandler & Udall, Tucson, for petitioner.

Whitney & LaPrade and Leon S. Jacobs, Phoenix, for respondents.

JOHNSON, Justice.

E. J. O'Malley, an elector and taxpayer, prior to the primary election, instituted an action in the Superior Court of Maricopa County, Arizona, seeking to enjoin the secretary of state from certifying to the various clerks of the county boards

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of supervisors of the state that there was an office to be filled by the electors for the unexpired term of Mit Sims, deceased, a member of the corporation commission of the State of Arizona, or from certifying the names of George F. Senner, Jr., J. W. Kelly or T. W. Liese, or any other names for such office.

[85 Ariz. 134] Mit Sims was the duly elected corporation commissioner for the term ending January 2, 1961, having been elected for a six-year term at the 1954 general election. Commissioner Sims died on or about the 24th day of July, 1957, creating a vacancy in the office, and pursuant to law the governor appointed George F. Senner, Jr., to the office, who thereafter qualified and is now the duly acting commissioner.

Democrats George F. Senner, Jr. and J. W. Kelly, and Republican T. W. Liese each filed nomination petitions to have their names placed on the primary election ballot to fill the unexpired term of deceased commissioner Sims for the ensuing two years.

The trial court issued an order granting a preliminary injunction restraining the secretary of state from certifying to the various clerks of the boards of supervisors, as the law requires, the names of any candidates for corporation commissioner at the primary election for a term ending January 2, 1961.

Thereafter the secretary of state, on August 13, 1958, filed an original proceeding in this court for a writ of prohibition against respondents, the Superior Court of Maricopa County, the Honorable Warren L. McCarthy as judge thereof, and E. J. O'Malley, restraining the court and judge thereof from enforcing the order granting the preliminary injunction. The primary election was set by law for September 9, 1958, and time being of the essence this, court, after a hearing, first issued an alternative writ of prohibition, and on August 15, 1958, made the writ peremptory; even though we were somewhat uncertain as to the law it was felt this was the safe thing to do. It was stated that a written decision would follow. We now state our reasons for the action taken.

Petitioner contends that Senner, Kelly and Liese, the prospective candidates for nomination, were indispensable parties to the suit for injunction, thus depriving the lower court of jurisdiction. It is true that if these persons were indispensable parties the lower court acted in excess of its jurisdiction, and an application for a writ of prohibition to this court is the proper remedy.

This court, in the very recent case of Siler v. Superior Court, 83 Ariz. 49, 316 P.2d 296, approved the test for indispensable parties set out in Barron and Holtzoff, Federal Practice and Procedure, Vol. 2, Section 512, pp. 58 and 59, which rule reads as follows:

'* * * Indispensable parties are those who have such an interest in the subject matter that a final decree cannot be made without either affecting their interest or leaving the controversy in such condition that a final determination may be wholly inconsistent with equity and good conscience. [85 Ariz. 135] The test of indispensability therefore is whether the absent person's interest in the controversy is such that no final judgment or decree can be entered which will do justice between the parties actually before the court, without injuriously affecting the rights of others not brought into the action.'

Applying this test to the instant action we believe there is little doubt that any judgment entered between the parties actually before the court would injuriously affect the rights of Senner, Kelly and Liese, who had each obtained and filed the legal number of signatures from electors on their nomination petitions for the office. They would be denied their right to appear on the ballots for the primary election, and actually be denied their right to seek public office without ever having had a day in court. To deny these candidates their right under the law and so defeat the will of the electors who signed their nomination petitions

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without making them parties to the proceedings, is in effect to deny them justice and a day in court. We hold that they were indispensable parties in ...


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