Abbey v. Green
| Decision Date | 18 April 1925 |
| Docket Number | Civil 2326 |
| Citation | 235 P. 150,28 Ariz. 53 |
| Parties | STEPHEN H. ABBEY, Plaintiff, v. E. L. GREEN, Defendant |
| Court | Arizona Supreme Court |
Original proceedings in quo warranto. Complaint dismissed.
Mr Thomas W. Nealon and Mr. Thomas A. Flynn, for Plaintiff.
Messrs Barnum & Flanigan and Messrs.
Kibbey Bennett, Gust, Smith & Lyman, for Defendant.
This is an original quo warranto proceeding brought upon the verified complaint of Stephen H. Abbey, after the Attorney General had refused to bring the action, and is in accord with the statutory law governing such proceeding. Chapter 8, title 6, Civ. Code 1913. The complaint sets forth that at the November, 1922, general election plaintiff was elected to the office of judge of the superior court of Pinal county, for the term beginning January 1, 1923, and ending December 31, 1926, and that thereafter he qualified and entered upon the discharge of the duties of such office and continued to perform such duties until on or about July 8, 1924, when defendant E. L. Green unlawfully usurped said office.
The answer admits plaintiff's election and occupancy of said office up to July 7, 1924, and alleges that on said date defendant qualified and entered upon the discharge of its duties; the plaintiff having been theretofore, on June 28th, recalled and defendant elected to fill the unexpired term. In the answer defendant justifies his claim to the office, and the right to exercise and enjoy its privileges and discharge its duties, by reason of a regular and legal compliance with the recall provisions of the Constitution and the laws of the state, and sets up the steps taken thereunder as follows:
(1) The filing on May 2l, 1924, with the clerk of the board of supervisors of Pinal county, of a recall petition, signed by more than 25 per centum of the qualified electors of the county voting for judge at the preceding election, demanding the recall of plaintiff and giving the reasons therefor.
(2) The giving of immediate notice in writing to plaintiff by such clerk of the filing of the recall petition and the grounds thereof, and his right to make and have printed on ballot a defense of his official conduct in not to exceed 200 words.
(3) The failure of plaintiff to make or deliver any defense to the clerk to go on ballot or to resign.
(4) The ordering on June 4th by the board of supervisors of the recall election to be held on June 28, 1924.
(5) The publishing in a newspaper of general circulation throughout Pinal county, not less than 10 days preceding the date of election, a notice thereof.
(6) The candidacy for such office of defendant, Green, and one H. G. Richardson by the filing of nomination papers signed by 5 per centum of the qualified electors of Pinal county.
(7) The adoption and use at such election of the form of ballot set out in paragraph 3348 of the recall law, with the names of plaintiff, Stephen H. Abbey, defendant, E. L. Green, and said H. G. Richardson printed thereon alphabetically without party designation, and also the grounds for recall.
(8) That at election 1,588 votes were cast, of which defendant received 779, plaintiff 484, Richardson 321, and scattering 4.
(9) That the board of supervisors on July 7, 1924, canvassed the returns and declared therefrom that defendant had received the highest number of votes, and was duly elected, and accordingly issued to defendant a certificate of election.
The plaintiff in his reply to answer objected to the sufficiency of practically every step taken towards his recall; and also the validity of the recall law as affecting the judiciary. He asserts that the recall petition was defective, in that the grounds of recall appeared only on the last sheet, and after the oath and signature of the circulator, instead of appearing on each sheet; that the grounds of recall did not relate to his official conduct, but were merely scandalous and impertinent; that the signers of petition did not give their street and number, or the street or other designation of residence; that the clerk of the board of supervisors did not, before notifying the plaintiff that petition had been filed, ascertain and determine it had been signed by the necessary number of qualified electors; that the board in ordering recall without taking testimony of witnesses showing the petitioners were qualified electors, and in not giving anyone an opportunity to appear and object to petition acted arbitrarily; that petition was considered and order made at a special meeting of the board; that the board accepted the affidavit of the county recorder to the effect that she had compared signatures and names on petition with the registers of 1922 and 1924 and the result thereof, after making order for recall election; that on the date of filing petition, May 26th, there were only 182 of the signers of recall petition registered in 1924, and only 186 on June 4th, the date recall election was ordered; that the ballot used at election did not provide for a separate vote on the issue of whether the plaintiff should be recalled; that the names of the defendant, Green, and said Richardson were placed on ballot without authority of law, neither of them having filed a nomination petition; that other persons than those whose names appeared upon the register of 1924 were permitted to vote at election, to a number in excess of defendant's plurality; that the board of supervisors had no jurisdiction; and that our constitutional and statutory law providing for the recall of judges contravenes the Constitution of the United States.
On the fourth day of December, 1924, and after issues formed, Ben L. Rudderow was appointed referee to take and reduce to writing all evidence offered, and report the same. This has been done. The respective counsel have filed their briefs, have been heard in oral argument, and the case is now ready for disposition.
Article 8, subdivision 1, of the Constitution, provides for the recall, and this article is supplemented by chapter 2, title 22, of the Civil Code of 1913; and, while the statute was intended to facilitate the operation of the recall provision of the Constitution, it adds very little to it except the provisions for the form of petition and its verification, the form of ballot, and the payment of campaign expenses. A statement of the requirements of the statutory law will include and cover the terms of the Constitution. Briefly, it is provided that every elective officer may be removed by the qualified electors of his district. The petition for the removal of such officer must be signed by such electors equal in number to at least 25 per centum of the number of votes cast at the last preceding election for the office. Each signer of petition shall add to his signature his place of residence, giving the street and number thereof, and the petition must contain a general statement in not more than 200 words of the grounds for such removal; and such petition, if for the removal of a county officer, superior court judge, or member of the legislature, must be filed with the clerk of the board of supervisors. Immediately upon the filing of petition with the clerk of the board of supervisors it is made his duty to notify in writing, over his signature, the officer against whom the petition is filed that petition is filed, and to set forth the grounds thereof, and to inform such officer that he will be allowed to make and have printed on the ballot a statement, containing not more than 200 words, defending his official conduct. The officer is allowed ten days after such notification in which to make out and deliver to the clerk of the board of supervisors a statement of his defense, and, if he fail to make such statement within that time, he is deemed to have waived the right to do so. The officer may resign, in which case his resignation must be accepted and the vacancy filled as provided by law. If he fail to resign for five days after the recall petition is filed, a special election shall be ordered, to be held not less than twenty nor more than thirty days after the order, to determine whether he shall be recalled. When such officer is a county officer, or judge, or other officer of a superior court, or a member of the legislature, the election shall be called by the board of supervisors. If the recall is against a county officer, the notice of election must be published for not less than ten days in a newspaper of general circulation throughout the county by the board of supervisors. A form of notice is prescribed, as also form of ballot, on which it is provided there shall be printed the reasons, as set forth in petition, for demanding the officer's recall and also the justification of the officer, if he make one, in not more than 200 words. The candidates are required to be put on the ballot without party designation. It is also provided the name of the officer against whom the recall petition is filed shall be placed upon the ballot, unless he request otherwise in writing, and that other candidates for the office may be nominated, to be voted for at the election, by 5 per centum of the qualified electors of the electoral district signing a nomination paper to that effect.
The recall cannot be invoked until six months after the officer takes his office, except in case of members of the legislature, and only one recall petition and election can be had against an officer during his term at the expense of the taxpayers.
By reference the general election laws, so far as not inconsistent with the recall statutes, are adopted. Paragraph 3350 of the Recall Law (Civ. Code 1913) reads as follows:
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