Graham v. Moore
| Decision Date | 02 October 1940 |
| Docket Number | Civil 4318 |
| Citation | 105 P.2d 962,56 Ariz. 106 |
| Parties | MORRIS GRAHAM, Individually, as a Member of, and as State Secretary of the Communist Party of the United States of America, in and for the State of Arizona, and on Behalf of All Members of Said Communist Party in the State of Arizona, Plaintiff, v. HARRY M. MOORE, Individually, and as Secretary of State of the State of Arizona; and the Clerks of the Boards of Supervisors of the Fourteen Counties of the State of Arizona, Defendants |
| Court | Arizona Supreme Court |
Original Proceeding in Mandamus. Petition for writ denied.
Messrs Andersen & Resner, of San Francisco, California, for Plaintiff.
Morris Graham, individually, as a member of and as State Secretary of the Communist Party of the United States of America, in and for the State of Arizona, and on behalf of all members of said Communist Party in the state of Arizona hereinafter called plaintiff, has filed a petition in this court for an alternative writ of mandamus against Harry M. Moore, individually, and as Secretary of State of the State of Arizona, hereinafter called defendant, and against the clerks of the boards of supervisors of each of the fourteen counties in Arizona, asking for a writ of mandamus requiring defendant "to certify and recognize, or certify or recognize the Communist Party as a new political party in the State of Arizona at the forthcoming general election in said State, to be held on November 5th, 1940," and requiring the said clerks of the boards of supervisors "to place the name of the said Communist Party on the ballots printed by them, as well as to place the names of the candidates of said Communist Party upon said ballots."
We consider first the question of jurisdiction. This is governed, so far as original jurisdiction is concerned, by section 4 of article VI of the Constitution of Arizona, which reads, so far as material, as follows:
With the exception of the issuing of writs of habeas corpus, all other jurisdiction of this court is merely appellate and revisory. We think, therefore, that so far as the clerks of the various boards of supervisors are concerned, we are without jurisdiction to hear an original petition for mandamus against them. Such petitions must be initiated in the superior court, and our jurisdiction thereover is appellate and revisory only. We do, however, have jurisdiction of proceedings in mandamus against defendant, who is the duly qualified, elected and acting secretary of state, and we consider the petition, therefore, solely so far as it seeks relief against him.
The writ of mandamus is an extraordinary and expeditious legal remedy which proceeds upon the assumption that the applicant has an immediate and complete legal right to the thing demanded. Campbell v. Hunt, 18 Ariz. 442, 162 P. 882. As against public officers in particular, it is issued only to compel the performance of an act which the law especially enjoins as a duty arising out of the office. Territory v. Board of Supervisors, 2 Ariz. 248, 12 P. 730. If such officer is not specifically required to perform the duty or has any discretion as to what shall be done, the writ does not lie. Collins (Board of Supervisors) v. Krucker, (Ariz.) 104 P.2d 176. We, therefore, consider whether the allegations of the petition show affirmatively that defendant has refused to perform some act which the Constitution or the statute specifically requires of him, as secretary of state, to do. If he has so refused, the writ should issue. If he has not, it should be denied.
It is admitted frankly by petitioner that he bases his petition solely on the provisions of section 1278, Revised Code of 1928, which reads, so far as material, as follows:
(Italics ours.)
In his petition he alleges that a petition, signed by two per cent of the votes cast for governor at the last preceding general election in at least five counties of the state, and verified by the affidavit of ten qualified electors of the state, asking that the signers thereof be recognized as a new political party under the name of "Communist Party of Arizona," was duly filed with defendant as Secretary of State of the State of Arizona. There is no contention that defendant in any manner refused to accept and file such petition. In fact, the petition alleges that at the time of the filing plaintiff was advised by the assistant secretary of state that the Communist Party had duly qualified as such political party within the state of Arizona. The petition further proceeds, however, to allege that said defendant "has refused and still refuses to recognize such party... as a new...
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