Cavender v. Board of Sup'rs of Pima County

• Decision Date: 22 December 1958
• Docket Number: No. 6749,6749
• Citation: 333 P.2d 967,85 Ariz. 156
• Parties: 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.
• Court: Arizona Supreme Court

Page 967

333 P.2d 967

85 Ariz. 156

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.

No. 6749.

Supreme Court of Arizona.

Dec. 22, 1958.

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.

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 '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.

'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 designation not exceeding three words in length as the signers may select). (Emphasis supplied.)

'Names of signers. Place of residence. Date of signing.'

It was stipulated that the petitions filed by appellants met all of the requirements and conform in every way with the provisions of section 16-601, supra. Appellants maintain that it was solely for the purpose of meeting the statutory requirement as to selecting a designation that they inserted in their petitions, in each instance, the words 'Clean Government'. Appellants earnestly insist that by using this designation they had no intention of creating--nor did they thereby create--a new political party.

Appellees, on the other hand, advance the following proposition of law, viz.:

'a person has no legal right to be a candidate for a political office under a political designation that he is not affiliated with by registration. (Emphasis supplied.)

As applied to our problem this is a deceptive statement; we readily agree (1) that one seeking a party nomination for an office in the primary must be affiliated by registration with such party, and (2) that one may not be a candidate at the general election, e. g., of the Democratic, Republican, or Non-Partisan party, unless he is in fact registered with such party. However, it does not follow that because appellants Cavender and Dowdall are registered democrats they are ineligible to obtain a nomination under section 16-601, supra, this for the reason that the statute lays down no such requirement. It is equally fallacious to assert that appellants are now in reality members of a newly created 'Clean Government Party' and, not being registered as such, cannot find a place on the ballot under the column designated 'Other Candidates'. To sustain such an interpretation would completely emasculate and make wholly nugatory the statute in question. The legislature could not have intended that this statute be available only to the small fraction of unaffiliated voters. This section was to assure any elector an opportunity to run for office, and it should be remembered that in the general election there is but one ballot and an elector may vote for whom he pleases irrepsective of party registration.

Furthermore, appellees claim section 16-601, supra, is in some manner violative of article 7, section 10, Constitution of Arizona. We are unable to perceive even the slightest merit to this contention. As a matter of fact the constitutional proviso merely contains a mandate:

'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 State Senator and for Representative in Congress.' Art. 7, Sec. 10, Const. of Ariz.

Obviously this was not intended to make of the primary election statutes enacted pursuant thereto the exclusive method of nominating candidates. Basically, the primary election law was intended to supplant the abuses and evils of the party convention method of selecting candidates which had grown up in territorial days in favor of a direct vote of the people through the medium of a primary election. Historically it appears that the statute in question (section 16-601), essentially in its present form, has been a part of our...