Campbell v. Hunt

• Decision Date: 27 January 1917
• Docket Number: Civil 1567
• Citation: 162 P. 882,18 Ariz. 442
• Parties: THOMAS E. CAMPBELL, Plaintiff, v. GEORGE W. P. HUNT, Defendant
• Court: Arizona Supreme Court

162 P. 882

18 Ariz. 442

THOMAS E. CAMPBELL, Plaintiff, v. GEORGE W. P. HUNT, Defendant

Civil No. 1567

Supreme Court of Arizona

January 27, 1917

Original petition for Writ of Mandamus. Plaintiff held entitled to writ.

Mr. R E. Sloan, Mr. J. L. Gust, Messrs. Bullard & Jacobs, and Mr John H. Campbell, for Plaintff.

Mr Eugene S. Ives and Mr. Frank E. Curley, for Defendant.

OPINION

FRANKLIN, C. J.

The inquiry involved in this proceeding imposes upon the court the duty of determining which one of two persons, being rival claimants, respectively, to the office of Governor of this state, shall be recognized and given temporarily the status of a de facto officer. It goes no further. This solemn duty may not, in the popular comprehension, be entirely dissociated from a political aspect, but in this court it is, in its very essence, viewed strictly as a judicial question proper for the judgment of the court. The equity of the court must from the most trivial to the most solemn occasions be strict, even to apparent severity, whence partiality and prejudice are totally to be excluded, and the true state of the law alone, so far as it may have the light to discern it, preside in its tongue. To this end we must give it that same patient and conscientious attention, before pronouncing judgment, that every case presented in this court deserves, no matter what the matter involved. That must be our purpose. The conduct of affairs in Arizona is practically in the hands of majorities, and accordingly the right to vote, the conditions under which the right can be exercised, the qualifications of the voters and the officers for whom they vote, the safeguards against an improper exercise of the franchise, the laws under which elections are held, the results determined, corrected or set aside, and the effect thereof, the penalties imposed on those who abuse the system, and above all the nature of the tribunals to whom the decision of all these matters is committed -- all these things must, or ought to be, of vital importance to every thoughtful citizen and lawmaker. This to a degree no whit less than the deep concern of those charged with the direct responsibility of the exposition of the laws as they exist with such implements as may be at hand, and the application of the principles underlying those laws to the ascertained facts of this case.

Abridging much that is in the papers before us, but, as I take it, omitting nothing of the uncontroverted facts that is essential to dispose of the application, the plaintiff claims: That a general election was held on November 7, 1916, at which election he and defendant were rival candidates for the office of Governor, their respective names so appearing upon the regular ballot, and each was thus voted for by large numbers of the qualified electors of the state. That the election officers in the various election precincts of each county canvassed the votes and made tabulations and returns of the results of such canvass to the respective boards of supervisors of the various counties in the state. That the boards of supervisors each made a canvass of such returns so transmitted to them and did declare the result of said canvass. That said boards of supervisors did thereafter transmit the respective results of their canvass to the Secretary of State of Arizona, and in so doing did transmit to the secretary their canvass of the returns at said election in their respective counties for the office of Governor as canvassed and counted by said election officers, and as canvassed by said respective boards of supervisors. That the Secretary of State thereupon, and on the sixth day of December, 1916, canvassed the said returns for the office of Governor, and did declare that plaintiff, Thomas E. Campbell, received for the office of Governor at said election the highest number of votes given to any candidate for that office, and did declare the said Thomas E. Campbell elected to the said office of Governor, and did issue to him a certificate of election, certifying and declaring the said Thomas E. Campbell to be elected at said general election to the office of Governor of the state of Arizona, the certificate being under the hand of the Secretary of State and under the seal of the state of Arizona. That plaintiff is eligible under the Constitution and laws of Arizona to be elected and hold the office of Governor, and has qualified by taking the oath of office prescribed by the law. That upon demand the defendant unlawfully precluded the plaintiff from his right or office to which he is entitled.

Under this state of facts and in this proceeding it is the contention of plaintiff that he has shown prima facie his right to be recognized as the officer clothed with the power to discharge temporarily the necessary duties of the office of Governor, and to obtain possession of the books, records, and property pertaining to the office, until it may be determined in an appropriate proceeding who is the real Governor of the state.

The defendant does not deny the facts as above substantially set forth, but he does challenge the legal effect of such facts. Further, to overcome the case made by the plaintiff, the defendant shows: That in the year 1914 he was legally elected Governor for the definite and fixed term of two years from the first Monday in January, 1915, with a further term contingent on the election and qualification of his successor, and he is now in possession of the office and performing its duties because such contingency has not happened, to wit, that no person has been legally elected and qualified as his successor. That plaintiff is disqualified from holding the office of Governor. That a contest is now pending in the superior court of Maricopa county, having jurisdiction thereof, wherein the defendant is the contestant and the plaintiff the contestee, and wherein the person receiving the highest number of legal votes and the ultimate title to the office of Governor will be definitely determined. That so far as such contest has progressed the defendant verily believes and asserts the fact to be that it is shown that he has received the highest number of legal votes cast at said election for the office of Governor, and that under the law and of right and justice he is the lawful Governor of the state, and ought to be recognized as such until there be a final judicial determination otherwise.

It is true beyond the peradventure of a doubt that the person who received the largest number of legal votes cast for the office of Governor is the lawful Governor of this state. Such person is now and always will be such until the term prescribed by law expires or a vacancy occurs. Under the Constitution and laws of this state, the real right or title to the office comes from the will of the voters as expressed at the election. If the office was in fact given by the voters to another, the mere canvass of the returns and declaration of the result and the issuance of a certificate of election -- any or all these things -- do not and cannot invest one with the right which belongs to another. In this sense, if one has not result and the evidence of the certificate based thereon. There are two ways of doing this. Under chapter 14 of title 12, Revised Statutes of 1913, any elector of the state may contest the election of any person who is declared elected to a state office. Under chapter 8 of title 6, Revised Statutes of 1913, it is made the duty of the Attorney General to bring an action in quo warranto whenever he has reason to believe that any public office has been usurped, intruded into, or unlawfully held or exercised, and a private person claiming a public office may exercise the writ of quo warranto to try his title to the office, provided he first obtains permission of the court. Here we have two methods provided for trying the title to a public office, two methods for determining who is the real and lawful Governor of the state when a dispute arises thereabout, and in either method pursued the successful party must show that he has received the highest number of legal votes for the office, that he was eligible to the election and has duly qualified, and that the term of an incumbent, if any, has legally expired.

Such matters concerning conflicting claims to the legal or ultimate title to office, however, are foreign to the scope and purpose of mandamus. Paragrah 1553, Revised Statutes of 1913, provides:

"1553. The writ of mandamus may be issued by the supreme or superior court to any inferior tribunal, corporation, board (whether the Governor is a member of such board or not) or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person."

This statute is the basis of the present application. The writ hereunder is not, except in a limited sense, prerogative in character. I think it may accurately be said that it issues of right, but not as a matter of course. It does not issue where there is a plain, speedy and adequate remedy in the ordinary course of law, and ought not to issue as a matter appealing to the legal discretion of the court, when the applicant does not substantially demonstrate the propriety and justice of his case. It is rather an extraordinary and expeditious legal remedy, which proceeds in every case upon the assumption that the applicant has an immediate and complete legal right to the thing demanded. If the applicant here has shown an immediate and complete legal right to be admitted temporarily to the office of...