McDonald v. Cochise County

• Decision Date: 07 July 1930
• Docket Number: Civil 2964,2965
• Citation: 292 P. 603,37 Ariz. 90
• Parties: W. A. McDONALD, Appellant, v. COCHISE COUNTY, a Municipal Corporation, and HARLIE COX, JOHN HILD and M. P. WALKER, as Members of the Board of Supervisors of Cochise County, State of Arizona, Appellees; JAMES PORTER McDONALD, Appellant, v. COCHISE COUNTY, a Municipal Corporation, and HARLIE COX, JOHN HILD and M. P. WALKER, as Members of the Board of Supervisors of Cochise County, State of Arizona, Appellees
• Court: Arizona Supreme Court

292 P. 603

37 Ariz. 90

W. A. McDONALD, Appellant, v. COCHISE COUNTY, a Municipal Corporation, and HARLIE COX, JOHN HILD and M. P. WALKER, as Members of the Board of Supervisors of Cochise County, State of Arizona, Appellees;

JAMES PORTER McDONALD, Appellant, v. COCHISE COUNTY, a Municipal Corporation, and HARLIE COX, JOHN HILD and M. P. WALKER, as Members of the Board of Supervisors of Cochise County, State of Arizona, Appellees

Civil Nos. 2964, 2965

Supreme Court of Arizona

July 7, 1930

APPEALS from judgments of the Superior Court of the County of Cochise. D. W. Ling, Judge. Judgment in each case affirmed.

Mr. D C. Pace, for Appellant W. A. McDonald.

Mr Samuel L. Pattee, for Appellant James Porter McDonald.

Mr James T. Gentry and Mr. Fred Sutter, for Appellees.

Mr. Samuel L. Pattee, Amicus Curiae, in Case No. 2964.

OPINION

GIBBONS, Superior Judge.

This in an appeal from two decisions rendered in the superior court of Cochise county sustaining demurrers to complaints in each action on March 21st, 1930. The questions involved in the two cases being so closely related as to present practically the same issues, they have been considered by respective counsel together in briefs and oral arguments on this appeal, and hence will be considered together in this opinion.

A statement of the facts involved upon which there is no dispute will serve to present the questions for decision. The complaints, in substance, allege:

"That by an act of the Territorial Legislature in 1881 the county seat of Cochise County was located at the City of Tombstone; that a petition praying for the removal of said county seat from said City of Tombstone was filed with the Board of Supervisors of said county prior to the ninth day of September, 1929; that said Board acted on said petition and ordered called an election to be held on the nineteenth day of November, 1929, for the purpose of submitting to the electors of said county the proposition of the removal of said county seat from said City of Tombstone; that at said election the name of the City of Bisbee, and the name of the City of Douglas in said county were submitted to the electors to choose to which one of said two cities the county seat should be removed, if more than sixty per cent. of the votes cast were in favor of removal; that at said election, 8650 votes were cast, 5926 of which were cast in favor of removing said county seat, and 2724 against such removal; that more than a majority of all of the votes cast to-wit, 4609, were in favor of moving said county seat to said City of Bisbee; that after canvassing said votes, said Board entered an order declaring said county seat removed from said City of Tombstone to said City of Bisbee, and ordered and declared that as soon as practicable, all public records be removed to said City of Bisbee, all of which proceedings were had and taken under the provisions of article 12, chapter 16, Revised Code of Arizona, 1928.

"That shortly thereafter, the Superior Court, and the office of the Board of Supervisors, and other public offices and records, were removed from said City of Tombstone to said City of Bisbee, where they have remained and where the business of the county is now, and at the time of the commencement of this action was being conducted.

"It is further alleged in the complaint that at the last preceding election for governor held in said county, 10,199 votes were cast for governor, and that there appeared on the great register of said county the names of 12,005 qualified electors.

"It is further alleged in said complaint that the order of the Board calling said election was duly published in the minutes of said Board in the official newspaper of said county before the date on which said election was held; that the said Board, in not less than twenty days prior to said election, established a convenient number of election precincts in said county and defined the boundaries thereof, and designated the place within each precinct where such election should be held; and that in not less than twenty days prior to said election, the Board appointed for each of said election precincts so established, an inspector, two judges, and not less than two clerks of election, all of whom were qualified electors of the precincts for which they were appointed; that the said Board prepared and provided ballots containing the matters and things provided for in paragraph 895 of said article 12, chapter 16; that the ballots for said election were printed and ready for inspection at least ten days before said election; that there were printed and furnished by said Board to each polling place, a number of ballots exceeding by at least ten per cent. of the number of registered voters whose names appeared on the precinct register of the precinct for which said ballots were printed; that the polls in said county were open at six o'clock A.M. and closed at six o'clock P.M. on said day of election; and that the election marshall made proclamation of the opening of said polls and of the closing of same one hour and thirty minutes before closing, and fifteen minutes before closing, and at the moment of closing; and that the said Board furnished each polling place with a sufficient number of voting booths and the necessary equipment for the convenience of the voters, that announcement of the date of said election was made in the several newspapers published in the different cities and towns of said county, prior to said election; that only qualified electors whose names appeared on the great register of said county at the last general election in the year 1928 were permitted to vote, and voted at said election; that said Board called an election which was held on the twenty-fifth day of February, 1930, for the purpose of determining whether bonds should be issued to construct a court-house at said City of Bisbee; and that the said Board has expended and is continuing to expend money to maintain said county seat and county offices at said City of Bisbee.

"It is then alleged in the complaint that said article 12, chapter 16, is ineffective and in violation of the Constitution of the United States, and of the State of Arizona, for the reason that it is complete in itself and unaffected or supplemented by any other statute of the State; that no provision is made therein for giving any notice of said election; that no provision is made therein for the appointment of officers of the board of election, or the manner of holding an election; that no provision is made therein for the registration of the electors who might be entitled to vote at such election, or providing that they may vote without such registration; and that no method of conducting such election is provided for; that because of the above reasons, said acts and things done by said board in removing said county seat are void.

"The defendants demurred to the complaint on the ground that it did not contain facts sufficient to constitute an action in the nature of proceedings in quo warranto; and on the further ground that it did not contain facts sufficient to constitute any cause of action.

"Both demurrers were sustained by the Court. The plaintiff refused to amend and judgment was entered dismissing the complaint from which judgment the plaintiff has appealed to this Court.

"By agreement of the parties, the Honorable S.L. Pattee was permitted to argue the case as amicus curiae; and plaintiff and defendants also stipulated that he might file a brief in this Court in this case."

In the case of W. A. McDonald v. Cochise County et al., the appellant brought an action in quo warranto in his own name under the provisions of article 3, chapter 94, Revised Code of Arizona, 1928. As a preliminary step to the bringing of this action, appellant requested the county attorney of Cochise county to bring said action. Upon his refusal he then requested the Attorney General of the state to bring the action. This second request was also refused, whereupon appellant brought suit in his own name. The complaint named Cochise county and Harlie Cox, John Hild and M. P. Walker, as members of the board of supervisors of Cochise county, as parties defendant.

In the case entitled James Porter McDonald v. County of Cochise et al., the plaintiff sought in his first cause of action of his complaint to enjoin the board of supervisors of said county from paying out or expending any moneys of the public funds of Cochise county for the maintenance and conduct of the public offices and officers of said county at said city of Bisbee or elsewhere than the city of Tombstone, as also the expenditure of the proceeds of any bonds issued or sold by said county in construction and maintaining a courthouse at said city of Bisbee or any other place than said city of Tombstone. In plaintiff's second cause of action he alleges that a controversy has arisen in respect to the constitutionality of article 12, chapter 16, being sections 892 to 899, inclusive, of the Revised Statutes of Arizona, 1928, and that a declaratory judgment, if rendered, declaring said statute valid or invalid, would terminate the uncertainty of the controversy giving rise to the proceedings. And, in his prayer to said second cause of action, he asks the court to declare said statute unconstitutional, invalid, and of no force. The question of the constitutionality of article 12, chapter 16, was likewise raised in the case of W. A. McDonald v. Cochise County et al.

For the purpose of designating the two actions they will be referred to in this opinion as the quo warranto proceedings and the injunction proceedings.

Only two questions will be considered by the court for the purpose of this opinion in passing upon the question of the ruling of the lower court...