Findley v. Sorenson

• Citation: 276 P. 843,35 Ariz. 265
• Decision Date: 26 April 1929
• Docket Number: Civil 2742
• Parties: R. B. FINDLEY, Appellant, v. S. C. SORENSON, Appellee
• Court: Arizona Supreme Court

276 P. 843

35 Ariz. 265

R. B. FINDLEY, Appellant, v. S. C. SORENSON, Appellee

Civil No. 2742

Supreme Court of Arizona

April 26, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Messrs Silverthorne & Van Spanckeren and Mr. E. S. Clark, for Appellant.

Messrs Dougherty & Rodgers, for Appellee.

OPINION

LOCKWOOD, C. J.

On the thirtieth day of October, 1926, an election for a trustee of the Mesa Union High School District, situated in Maricopa county, was held. Before the election there was filed with the clerk of the board of education of the district a petition nominating one L. J. Barden for said position, in conformity with the provisions of section 3, chapter 72, Session Laws of 1921. No other nominating petition was filed. For some reason a number of the electors of said district voted for S. C. Sorenson hereinafter called contestee, for such position, and the board of education, upon canvassing the vote, declared him to be elected. Within the time allowed by statute one R. B. Findley filed his complaint in the superior court of Maricopa county contesting the election. Contestee brought the matter before us on an original writ of prohibition, claiming that the superior court was without jurisdiction to try the contest, but we determined in the case of Sorenson v. Superior Court of Maricopa County, 31 Ariz. 421, 254 P. 230, that it did have jurisdiction, and remanded the case for further proceedings. The matter was heard on its merits, and the trial court rendered judgment in favor of contestee, from which judgment this appeal has been prosecuted.

The case turns on the validity of certain votes cast at the election, and there are four assignments of error which raise the issue of the legality of some 89 of these votes, but all of these assignments will in effect be determined by our decision on one question of law, and the application of that conclusion and the corollaries thereof to the undisputed facts. That question is whether or not the general election laws of the state of Arizona apply to elections of trustees in union high school districts.

The general election laws of Arizona were enacted by the first state legislature as chapter 89, Laws of 1913, Third Special Session, found in the 1913 Civil Code as title 12. This chapter, except as amended by subsequent legislatures, still constitutes the general election law of the state. It is unnecessary for us to quote at length therefrom, but is apparent to anyone who examines it as a whole that on its face it is meant to apply only to elections for state, county and precinct officers, and other matters of political import to the state and the named subdivisions thereof, and not to school elections. This is confirmed by the fact that chapter 78, Laws of 1913, Second Special Session, appearing in the 1913 Code as title 11, which governs the general question of public education, as amended by subsequent legislatures, expressly provides for a special method of election of trustees and the determination of other questions of interest to the particular school district involved, differing radically from that provided for in the general chapter on elections, and by the universal practice in this state, running back far into territorial days, that school elections have always been conducted in a different manner from general elections, and that the strict rules applying to the latter have never been followed in the former. We are therefore of the opinion that the validity of the votes questioned in this case is to be determined by the specific provisions of the statutes in regard to school elections, and the general principles of the common law, and not by the general election code. With this established, let us consider the principles of law applicable to the present case.

There are two cardinal rules which, in the absence of specific statutory provisions to the contrary, always have governed election contests, not only in Arizona, but elsewhere. The first is that general statutes directing the mode of proceeding by election officers are deemed advisory, so that strict compliance with their provisions is not indispensable to the validity of the proceedings themselves, and that honest mistakes or mere omissions on the part of the election officers, or irregularities in directory matters, even though gross, if not fraudulent, will not void an election, unless they affect the result, or at least render it uncertain. Stackpole v. Hallahan, 16 Mont. 40, 28 L.R.A. 502, 40 P. 80; Montgomery v. Henry, 144 Ala. 629, 6 Ann. Cas. 965, 1 L.R.A. (N.S.) 656, 39 So. 507; 9 R.C.L. 1093, 1094.

The main object of the duties and restrictions imposed on election officers is to afford to every citizen having a constitutional right to vote an opportunity to exercise that right, to prevent those not so entitled from voting, and to insure the conduct of the election so that the true number of legal votes and their effect can be ascertained with certainty. If these things are accomplished then to throw out the vote of an entire precinct, or a considerable portion thereof, because the inspectors failed to comply with the statutory regulations, would be a sacrifice of substance to form. In short, a fair election and an honest return should be considered as paramount in importance to minor requirements which prescribe the formal steps to reach that end. Of course, if the statute expressly provides that a failure to observe certain requirements invalidates the vote, the court can do nothing but enforce the law as it is, but, unless there is such a provision, or unless the error or irregularity goes to the honesty of the election itself, it will be generally...