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Cavender v. Board of Sup'rs of Pima County

Supreme Court of Arizona

December 22, 1958

Cecil CAVENDER and Richard J. Dowdall, Appellants,
v.
The BOARD OF SUPERVISORS OF PIMA COUNTY, Lambert Kautenburger, Thomas S. Jay and Dennis E. Weaver, members of and constituting the Board of Supervisors, Appellees.

[85 Ariz. 157] Richard J. Dowdall, of Tucson, in pro. per., and as attorney for appellant Cecil Cavender.

Raul Castro, County Atty. for Pima County, and H. E. Rogge, Jr., Chief Deputy County Atty., Tucson, for appellees.

[85 Ariz. 158] UDALL, Chief Justice.

Within ten days after the primary election held on September 9, 1958, appellants Cecil Cavender and Richard J. Dowdall, qualified electors of Pima County, sought to have their names placed on the ballot for the general election to be held on November 4, 1958, the former as a candidate for County Supervisor (District No. 2), and the latter as a candidate for State Representative (Legislative District No. 9). The Board of Supervisors of Pima County, appellees herein, refused to accept the certificates of nomination filed in behalf of appellants pursuant to the provisions of A.R.S., Title 16, chapter 6, which is entitled

Page 968

'Nomination Other Than By Primary Election'.

Appellants filed application in the superior court for a writ of mandamus against appellees and an alternative writ issued, but after a hearing thereon, the lower court, on October 3, 1958, entered judgment quashing the alternative writ. This appeal followed. Time being of the essence, we gave immediate consideration to same. A skeleton record was filed and the rules governing appeals suspended. Briefs by respective counsel were immediately forthcoming and the matter was orally argued on October 14, 1958 and submitted for decision. Two days later, by an appropriate minute entry, a majority of the court ordered that the judgment of the lower court be reversed with directions that the board of supervisors be ordered to place the names of both appellants on the general election ballot in accordance with the provisions of A.R.S. § 16-844, subd. 2. It was 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 the action taken.

The facts were stipulated to by the parties, hence the questions presented for our determination are purely matters of law. Both appellants are registered democrats; Cavender sought the democratic nomination for county supervisor (the same post he now seeks) in the primary election but was defeated; however, Dowdall was not a candidate at the primary for any nomination. It is conceded that both appellants, if elected, were qualified to hold the offices they seek.

It is the position of appellants--with which we agree--that irrespective of party registration, or whether they were or were not candidates for a party nomination at the recent primary election, they have an absolute right to secure a place on the general election ballot providing they comply with the provisions of A.R.S. § 16-601, supra, the pertinent portions of which read:

'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.

[85 Ariz. 159] '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 at the last primary election, and who have not voted for any candidate for that office at the primary election.

'C. The certificate of nomination shall be in substantially the following form:

* * *

* * *

'It hereby declare that I have not signed the nomination papers of any candidate to be voted for at the last primary election, and that I did not vote for any candidate for such office at the last primary election, and I do hereby select the following designation under which name the said candidate shall be placed on the official ballot (here insert such ...


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