Moore v. Bolin, 5358

• Decision Date: 15 July 1950
• Docket Number: No. 5358,5358
• Citation: 220 P.2d 850,70 Ariz. 354
• Parties: MOORE v. BOLIN, Secretary of State.
• Court: Arizona Supreme Court

Page 850

220 P.2d 850

70 Ariz. 354

MOORE v. BOLIN, Secretary of State.

No. 5358.

Supreme Court of Arizona.

July 15, 1950.

Jerman & Jerman, Greenfield & Flynn, all of Phoenix, for appellant.

Fred O. Wilson, Atty. Gen., Earl Anderson, Asst. Atty. Gen., for appellee.

STANFORD, Justice.

The appellant, Thad M. Moore, who meets the constitutional qualifications to hold the office of Governor of this state, filed his action in the superior court asking for a declaratory judgment. The appellant is at the present time a duly elected, qualified and acting member of the Arizona State Tax Commission. His term of office does not expire until the month of January, 1953.

Appellee, Wesley Bolin, is the duly elected Secretary of State of the State of Arizona.

Appellant was desirous of seeking the gubernatorial nomination on the democratic ticket at the primary election to be held in Arizona in September, 1950, without resigning his office as State Tax Commissioner. He asks that chapter 68, Laws of 1949, (known also as section 12-110, A.C.A. 1939) which forbids an incumbent state officer in mid-term from being a candidate for another state office, be declared unconstitutional.

There are a number of reasons advanced by the appellant as to the unconstitutionality of the act in question but we deem it unnecessary either to state or consider these objections for the reason that appellee urges upon us, i. e. that the plaintiff's complaint does not present a justiciable controversy between plaintiff and defendant that is ripe for adjudication.

The act referred to was enacted by our legislature in 1949 and is as follows:

'Incubment filing for election.--(a) No person shall hold more than one (1) office at the same time, nor shall any incumbent of an elective office, whether holding by election or appointment, be eligible for nomination or election to any office other than the office being so held, nor shall the nomination papers of any such person be accepted for filing. This section shall not be construed to prohibit a person whose resignation from office has become effective, from qualifying as a candidate for another office during the unexpired portion of the term affected by such resignation. The resignation of any such person, duly filed in writing with the officer, board or commission having jurisdiction of the same, shall, if not accepted within ten (10) days, be deemed to have become effective. This section shall not apply to any encumbent elective office holder who shall seek reelection to the same office or to any other public office, during the final year of the term to which he shall have been so elected.

'(b) Any person violating this section shall be guilty of misfeasance in office, and the office held by such person shall be declared vacant.'

It is plain to see that the intent of the legislature was to prevent office holders who were holding for more than a two-year term from seeking another office while still holding the office to which elected. On being advised by the Secretary of State that he would not place the name of appellant on the ballots as a candidate for governor unless he complied with chapter 68, supra, by first resigning as a member of the State Tax Commission, the appellant brought his action for declaratory judgment aforesaid.

Thereafter appellee filed an answer and a motion to dismiss the complaint of appellant, which motion was denied. Thereafter each party filed a motion for summary judgment and the trial court granted the motion of this appellee denying the motion of appellant. This was followed by the judgment from which this appellant appeals.

From 16 Am.Jur., Declaratory Judgments, sec. 46, p. 319, we quote: 'Controversies between Officers.--A mere difference of opinion between public officers, not amounting to a justiciable controversy concerning adverse interests, is not sufficient as the basis for a declaratory judgment. * * *'

From 16 Am.Jur., Declaratory Judgments, sec. 9, p. 282, we quote: 'It is well settled that a proceeding for a declaratory judgment must be based upon an actual controversy. * * * No proceeding lies under the declaratory judgments acts to obtain a judgment which is merely advisory or which merely answers a moot or abstract question.'

The case of State ex rel. La Follette v. Dammann, 220 Wis. 17, 264 N.W. 627, 629, 103 A.L.R. 1089, is a declaratory judgment case wherein the governor of the state of Wisconsin asked for a declaratory judgment asking if the governor of the state may make appointments or reappointments to state offices, etc., the controversy being between the governor and secretary of state as to the existence of vacancies in certain offices, the governor contending that the offices were vacant, the secretary of state contending that they were not. The court, in its opinion, said:

'It is also our opinion that, if the dispute between the plaintiff and the defendant may be considered as the beginning of a controversy, it is not now ripe for adjudication, since the plaintiff has made no appointments to any of such offices and there is consequently no one who can presently assert a legally protectible interest--a right to an office or the emoluments thereof--which the court may...