Hudson v. Cummard, Civil 3462

• Decision Date: 13 June 1934
• Docket Number: Civil 3462
• Citation: 44 Ariz. 7,33 P.2d 591
• Parties: CARROLL HUDSON, Plaintiff, v. JOHN CUMMARD, Defendant
• Court: Arizona Supreme Court

33 P.2d 591

44 Ariz. 7

CARROLL HUDSON, Plaintiff, v. JOHN CUMMARD, Defendant

Civil No. 3462

Supreme Court of Arizona

June 13, 1934

Original proceeding in quo warranto by plaintiff against defendant to determine title to the office of corporation commissioner. Judgment for defendant.

Messrs Struckmeyer & Jennings, for Plaintiff.

Messrs Cunningham, Carson & Gibbons, for Defendant.

OPINION

LOCKWOOD, J.

On December 19, 1933, Carroll Hudson, hereinafter called plaintiff, filed with this court an application for leave to prosecute an action in the nature of quo warranto against John Cummard, hereinafter called defendant. Leave was granted, and a citation issued to defendant to appear and answer the complaint. Defendant filed a general demurrer to the complaint together with an answer, and later, by stipulation, a statement of facts, and the matter was submitted on briefs.

There are a number of questions raised which allege defects in form rather than substance. We think it unnecessary to pass upon any of these matters, for the case can be, and in our opinion should be, determined upon the issue presented therein which is of greatest importance not only to the parties, but as a precedent for the future. The facts involved necessary to a determination of this issue are taken from the statement of facts and from matters of which this court is obliged to take judicial notice, and may be stated chronologically as follows:

The Eleventh Legislature of the state of Arizona at its regular session had proposed for submission to the qualified electors four constitutional amendments. Thereafter, and at its first special session it passed chapter 5 of that session, which reads, so far as material, as follows:

"Section 1. A special election is hereby called for the third day of October, 1933, for the purpose of submitting to the qualified electors of the state the following:"

and the chapter thereafter recited the various amendments which had been previously ordered submitted by the legislature.

The Honorable Lewis Douglas, who was regularly elected in November, 1932, as Representative from Arizona to the Congress of the United States, resigned his office, and on June 2, 1933, there being a vacancy in the office of Representative, as aforesaid, the Governor issued a proclamation, which reads as follows:

"A Proclamation

"Executive Department

"State of Arizona

"Whereas, a vacancy exists in the office of Representative to the Congress of the United States in Arizona by reason of the resignation of the Honorable Lewis W. Douglas, Representative from Arizona to the Congress of the United States; and

"Whereas, it is provided by article 1, section 2 of the Constitution of the United States that:

"'When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such vacancies." "And

"Whereas, it is provided by section 1157, Revised Code of Arizona, 1928, that:

"'Special elections to fill a vacancy in the office of a member of the legislature, representative or senator in congress, shall be held only on the proclamation of the governor. When a vacancy occurs in the office of United States senator, it shall be filled at the next general election, for the unexpired term; if the next general election is not to be held within six months, the governor may call a special election to fill such vacancy by appointment until the election of the successor at such general or special election.' "And

"Whereas, it is provided by section 10, article 7 of the Constitution of the State of Arizona, that:

"'The Legislature shall enact a direct primary election law, which provides for the nomination of candidates for all elective, state, county, and city offices, including candidates for United States Senator and for Representative in Congress.'

"Whereas, it is provided in section 1273, Revised Code of Arizona, 1928, that:

"'On the eighth Tuesday prior to any general or special election at which candidates for public office are to be elected, there shall be a primary election at which each political party entitled and intending to make nominations for the ensuing general or special election shall, if it desires to have the names of its candidates printed on the official ballot at such election, nominate its candidates for all elective, senatorial, congressional, state, judicial, county and precinct offices to be filled at such election;'

"Now, Therefore, I, B. B. Moeur, Governor of the state of Arizona, in pursuance of my duty as prescribed by article 1, section 2 of the Constitution of the United States, and section 1157 of the Revised Code of Arizona, 1928, do hereby proclaim a special primary election in the State of Arizona to be held on Tuesday, the 8th day of August, 1933, for the nomination of candidates for the office of Representative from Arizona to the Congress of the United States to fill the unexpired term of the Honorable Lewis W. Douglas, resigned; and I do hereby proclaim a special general election in the State of Arizona to be held on Tuesday the 3rd day of October, 1933, for the election of a Representative from Arizona to the Congress of the United States to fill the unexpired term of the Honorable Lewis W. Douglas, resigned."

Thereafter, and on June 24, 1933, Amos A. Betts, who had been duly elected to the office of corporation commissioner for the term of six years ending December 31, 1934, submitted his resignation from such office to the Governor, which was duly accepted, and on July 5, 1933, defendant was by the Governor appointed to fill the vacancy on the Corporation Commission created by the resignation of Betts, and duly qualified for such office as required by law. Thereafter, and on July 19, 1933, plaintiff filed a nomination petition for corporation commissioner with James H. Kerby, Secretary of State, which petition requested that plaintiff's name be placed on the ballot to be used in the primary election referred to in the Governor's proclamation above set forth, as a candidate for the office of corporation commissioner in the Democratic primary. The primary election was held on August 8th, and the name of plaintiff appeared on the Democratic ballot as a candidate for office of corporation commissioner in seven of the counties of the state, the authorities in the other seven counties not placing any name on said primary ballot as a candidate for such office. Plaintiff received more votes in the primary than any other person as a candidate for corporation commissioner, and his name was duly certified by the Secretary of State as the Democratic candidate for that office, at the election to be held on the 3d day of October. At such election his name appeared on the ballot in nine of the counties of the state, the authorities in the other five counties not placing it thereon, and he received a majority of the votes cast for the office of corporation commissioner, and a certificate of election was duly issued to him by the Secretary of State. Thereafter, he filed a bond as such corporation commissioner, and an oath of office, and later notified the Attorney General that he claimed the office of corporation commissioner which was occupied by Cummard, and requested the Attorney General to bring action to determine title to the office. The latter refusing to accede to the request, this action was brought by plaintiff.

As will be seen by the foregoing recital of facts, there are a number of questions which might be raised in the case, but we prefer to decide it on the question of whether or not the election of ...