William Ralph GRIFFIN and John Joseph Hourihan, Individually, and in the right and on the behalf of the electors and members of the Democratic Party of the State of Arizona and in the right and on behalf of the citizens and electors of the State of Arizona, Appellants,
A. P. (Jack) BUZARD, Appellee.
Rehearing Denied Sept. 22, 1959.
[86 Ariz. 168] John E. Madden, Phoenix, for appellants.
Lewis, Roca, Scoville, Beauchamp & Linton, and John P. Frank, Phoenix, for appellee.
This is an appeal from a superior court judgment dismissing statement of a primary election contest filed against A. P. (Jack) Buzard (contestee-appellee) by two qualified electors, William Ralph Griffin and John Joseph Hourihan, (contestors-appellants). The parties will hereafter be referred to as contestors and contestee.
No one challenges the right of contestors to bring this contest, as A.R.S. § 16-1201 specifically provides:
'A. Any elector of the state may contest the election of any person * * * declared nominated to a state office at a primary election, * * *.'
At the outset it is well to note the settled rule in this state is 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.' See, Harless v. Lockwood, 85 Ariz. 97, 332 P.2d 887, 888; Brown v. Superior Court, 81 Ariz. 236, 303 P.2d 990; Grounds v. Lawe, 67 Ariz. 176, 193 P.2d 447; Cf. Henderson v. Carter, 34 Ariz. 528, 273 P. 10. The right of appeal to this court is provided for in A.R.S. § 12-2101, subd. B.
Among the various candidates seeking nomination under the Democratic banner at the statewide primary election held September 9, 1958, were three candidates for the six-year (long) term on the Arizona Corporation Commission, viz.: William A. (Bill) Brooks, William T. (Bill) Brooks, and contestee A. P. (Jack) Buzard. The latter, according to the official canvass, received the highest number of votes cast,--was declared to be the Democratic nominee for such office and was issued a certificate of nomination therefor. Incidentally, from a companion case, 342 P.2d 206, it appears Buzard was unopposed in the general election hold November 4, 1958, and since the first of this year has been and now is serving as a Corporation Commissioner.
[86 Ariz. 169] The contestors, on October 20, 1958, brought this contest on behalf of themselves and as a class action for the citizens and electors of the State of Arizona, all of whom are allegedly 'interested in and entitled to the insurance of freedom and purity of elections in the State of Arizona.' The contestee on October 22d moved to dismiss the statement of contest upon the grounds (a) that the same failed to state a claim upon which relief could be granted to the contestors, and (b) that William T. (Bill) Brooks is an essential party contestor and had not been so joined. The motion to dismiss was granted by minute order dated October 27th, and judgment entered thereon the next day, from which judgment this appeal was taken on November 3, 1958. Inasmuch as the trial court did not specify the basis for its order and judgment we shall assume it is predicated upon one or the other of the enumerated grounds.
First we shall dispose of the contention that candidate William T. (Bill) Brooks was an indispensable party to the contest and not having been joined therein as contestor, the action was properly dismissed. There is not the slightest merit to this contention. We point out that this is not a
contest between two rival candidates, but rather an election contest initiated by qualified electors against contestee Buzard with the purity of elections as its goal. The statutes, A.R.S. §§ 16-1201 to 16-1203 inclusive, give the answer as to who must be parties to such an action. We hold the only necessary parties were the named contestors and contestee, Buzard, the party whose nomination was being contested. The statutory form of summons set forth in A.R.S. § 16-1203 bears out this conclusion. The fact that this contest, if successful, might inure to the benefit of William T. (Bill) Brooks is of no moment in determining the question of whether he is an indispensable party to the suit.
In contestee's brief the further argument is advanced that because of certain alleged defects in the primary nomination papers of William T. (Bill) Brooks--which are detailed in Smoker v. Bolin, 85 Ariz. 171, 333 P.2d 977--the said Brooks was not himself a legal candidate for the office which he sought and hence it is asserted the conduct complained of by the contestants herein is of no legal significance. The logic of this claim escapes us. Obviously, the contention that there may have been another illegal candidate in the race hardly avoids the effect of statutory grounds of contest, nor defeats the allegations found in the complaint, infra, that deception was practiced and the true will of the electorate could not be ascertained.
The ultimate issue raised by this appeal is whether the statement of contest filed herein states a claim upon which relief could be granted, for if it does the trial [86 Ariz. 170] court was in error in dismissing same. In resolving this issue there are certain well established rules to guide us: (1) in determining sufficiency of complaint (in this instance statement of contest) on a motion to dismiss, the allegations must be treated as true, and whether they are susceptible of proof at the trial does not concern us at this time, State v. McCarrell, 80 Ariz. 243, 295 P.2d 1088; (2) all intendments lie in favor of the pleading and not against it, In re Cassidy's Estate, 77 Ariz. 288, 270 P.2d 1079; and (3), a motion to dismiss an action should never be granted unless the relief sought could not be sustained under any possible theory. Marston v. Denton, 60 Ariz. 178, 134 P.2d 158.
Before proceeding to analyze the allegations contained in the statement of contest we deem it advisable to set forth the pertinent constitutional and statutory provisions that have a bearing on the matter. The authority for holding a primary election stems from article 7, section 10, Constitution of Arizona, A.R.S.:
Direct primary election law
'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, * * *.'
Another constitutional provision having a bearing upon our problem is found in section 12, article 7, which reads:
Registration and other laws
'There shall be enacted registration and other laws to secure the purity of elections and guard against ...