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Board of Sup'rs of Pima County v. Harrington

Supreme Court of Arizona

December 22, 1958

BOARD OF SUPERVISORS OF PIMA COUNTY, Arizona, and Lambert Kautenburger, Dennis J. Weaver and Thomas Jay, the members thereof, Appellants,
Robert G. HARRINGTON, Norman J. Liechty, David A. Searing and H. C. Kern, Appellees.

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[85 Ariz. 164] Raul H. Castro, County Atty., Pima County, H. E. Rogge, Jr., and Marvin S. Cohen, Deputy County Attys., Tucson, for appellants.

Scruggs & Rucker, and J. Richard Hannah, Tucson, for appellees.

PHELPS, Justice.

This case comes to us on an appeal from the order and judgment of the superior court of Pima county making peremptory a writ of mandamus directed at the appellants ordering them to place the names of appellees Robert G. Harrington, Norman J. Liechty and David A. Searing on the ballot as candidates in the general election to be held in Pima County, Arizona, on November 4, 1958, for the offices of state representative of Legislative District No. 16; state representative District No. 4; state representative District No. 5 respectively, and that the name of H. C. Kern be placed on said ballots as a candidate for supervisor in supervisorial District No. 3 of that county.

This matter was fully argued to the court and ordered submitted on October 14, 1958. Time being of the essence, the court immediately took the matter under consideration and being fully advised in the premises a majority of the court rendered its oral decision on October 16, 1958, reversing the judgment of the trial court entered therein. The court then stated that a written decision would thereafter follow in accordance with the constitutional requirement (Art. 6, § 2, A.R.S.). We now reduce said oral decision to writing and state our reasons therefor.

The question presented both to this court and to the superior court is purely one of law.

[85 Ariz. 165] The facts are that appellees are all affiliated with the Republican Party but did not present their names to the electors of Pima county in the direct primary election held on September 9, 1958 in the manner provided for in A.R.S. §§ 16-301 to 16-305 inclusive, enacted pursuant to Art. 7, § 10 of the Arizona Constitution.

After the primary election however, they sought to get their names placed upon the ballot of the general election under the provisions of A.R.S. §§ 16-601 and 16-844. The certificate of nomination provided for in § 16-601, supra, designated the name 'Republican' as the designation under which appellees desired their names to appear upon the official ballot for the general election. The Board of Supervisors refused to comply with their demand. This action was instituted with the result above stated.

The specific question presented in this case is: after the primary election, may a person become a candidate for public office at the general election under the provisions of A.R.S. §§ 16-601 and 16-844, supra, under the party designation,

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in this case 'Republican', where the Republican Party failed to nominate a candidate to such office at the primary election? This is a question of first impression in this court. Neither counsel has presented any authority on the subject and are both apparently of the view that there are no authorities. It must therefore be determined solely upon the interpretation of the Constitution, Art. 7, § 10, supra, and laws enacted pursuant thereto. The Constitution, Art. 7, § 10 provides that:

'The Legislature shall enact a direct primary election law, which shall provide for the nomination of candidates for all elective State, county and city offices, including candidates for United States Senator and for Representative in Congress.'

This, of course, is mandatory. Art. 2, § 32 of the Constitution. Pursuant to said constitutional mandate the legislature enacted laws setting up the machinery for the nomination of all state, county and city offices at a primary election.

A.R.S. §§ 16-301 to 16-305 inclusive prescribe the procedure to be followed in order to become a candidate for public office and to have his name printed on the official ballot at said primary election for submission to the electors of the state. Included in the proceedings to be followed is the prescribed form of the nomination petitions bearing the names of the signers of qualified electors, the number of names required and the time within which and the place where such nomination petitions must be filed. A.R.S. § 16-502 provides that:

'At a primary election, each political party entitled and intending to make nominations for the ensuing general or [85 Ariz. 166] special election shall, if it desires to have the names of its candidates printed on the official ballot at such general or special election, nominate its candidates for all elective, senatorial, congressional, state, judicial, county and precinct offices to be filled at such election.' [Emphasis ours.]

A.R.S. § 16-571 provides for a canvass of the votes cast at the primary election by the governing body designated therein for that purpose. Upon completion of said canvass such governing body shall declare the person who received the largest number of votes to be the nominee of the party for the particular office for which he was a cendidate. Thereupon, he is issued a certificate of nomination which entitles him to have his name printed on the ballot at the ensuing general election.

A.R.S. § 16-601 provides in so far as material that:

'A. Candidates for public office may be nominated otherwise than by primary election or by party committee in the manner set forth in this section.

'B. A certificate of nomination stating the name of the office to be filled, the name and residence of the candidate and other information required by this section, shall be filed with the officer with whom primary nomination papers are required to be filed within ten days after the primary election. The certificate shall be signed only by voters who have not signed the nomination papers of a candidate for the office to be voted for ...

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