Stockton v. McFarland, Civil 4314

• Citation: 106 P.2d 328,56 Ariz. 138
• Decision Date: 14 October 1940
• Docket Number: Civil 4314
• Parties: HENDERSON STOCKTON, Appellant, v. ERNEST W. McFARLAND and the STATE OF ARIZONA, Appellees
• Court: Supreme Court of Arizona

106 P.2d 328

56 Ariz. 138

HENDERSON STOCKTON, Appellant, v. ERNEST W. McFARLAND and the STATE OF ARIZONA, Appellees

Civil No. 4314

Supreme Court of Arizona

October 14, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. judgment affirmed.

Mr Henderson Stockton, in Propia Persona, and Mr. S. N Karam and Mr. J. W. Cherry, Jr., for Appellant.

Mr Chas. A. Carson and Mr. F. C. Struckmeyer, for Appellee Ernest W. McFarland.

Mr. Joe Conway, Attorney General, and Mr. Earl Anderson, Special Assistant Attorney General, for Appellee State of Arizona.

OPINION

LOCKWOOD, J.

Henderson Stockton, hereinafter called plaintiff, filed an action in the superior court of Maricopa county against Ernest W McFarland, hereinafter called defendant, and the State of Arizona. The complaint alleges, in substance, that plaintiff had duly qualified himself, under article X, chapter 22, Revised Code of 1928, to become a candidate for the Democratic nomination for the United States Senate, at the primary to be held on September 10, 1940, and that defendant had in like manner qualified as a candidate for the same office at the same primary. He alleged, however, that defendant was ineligible to run for or hold the office of United States Senator, or to have his name placed upon any ballot to be used in the primary election for that office.

The reasons set forth for such ineligibility were that defendant had theretofore, in 1938, been elected as judge of the Superior Court of the State of Arizona, in and for Pinal County, for a term commencing in January, 1939, and ending in January, 1943, and that he was, at all the times referred to in the complaint, the duly elected qualified and acting judge of such superior court his term not expiring until January, 1943, and that this made him ineligible for the office of United States Senator because of the limitations of article VI, section 11 of the Constitution of Arizona, which reads, as follows:

"Judges of the Supreme Court and judges of the superior courts shall not be eligible to any office or public employment other than a judicial office of employment, during the term for which they shall have been elected."

The prayer of the complaint is for a declaratory judgment that defendant is ineligible to run for or have his name appear on any official primary ballot for the office to United States Senator, or to hold such office during the period from January, 1939, to January, 1943.

The State of Arizona was made a party to the action on the ground that it was, in some manner not specified, interested in the subject matter and in the relief sought.

Defendant and the State filed a motion to dismiss the action. The matter came on for hearing, and the superior court sustained the motion to dismiss, without leave to amend the complaint, and judgment was rendered accordingly, whereupon this appeal was taken.

Both the oral argument and the briefs filed on the appeal are replete with political discussions and criticisms of each party by the other, and reference to many matters not material to the action. So far as the courts are concerned, the questions submitted, although they do have a political effect, must be decided solely on the law as it exists, and not on the political and moral animus differendi of the respective parties.

The particular issue, which we are asked to decide, is whether, under the admitted facts of the case, the provisions of article VI, section 11, supra, made defendant ineligible for the office of United States Senator from Arizona during his term of office as judge of the superior court. There are a number of procedural questions which we might consider, but in view of the fact that this is not the first instance where a judge of the superior court has run for a federal office, and there have been more cases in which it has been credibly reported that various judges were considering making such a race, we think it better that the case be decided on its merits, so that the eligibility of judges for the United States Congress may be finally determined.

The precise question, determinative of the issue, is whether a state, through its Constitution or statutes, can add to or take away from the qualifications for a member of Congress prescribed by the Constitution of the United States. The latter Constitution, on this point, reads as follows:

"Article I

"Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

"Section 2....

"No Person shall be a representative who shall not have attained to the Age of twenty-five Years and been seven Years a Citizen of the United States, and who shall not, when elected, by an Inhabitant of that State in which he shall be chosen.

"Section 3....

"No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."

The matter was referred to incidentally during the arguments which occurred when the adoption of the federal Constitution was under consideration by the various colonies. Alexander Hamilton, in The Federalist, LX, said:

"... The qualifications of the persons who may choose, or be chosen, as has been remarked upon another occasion, are defined and fixed in the Constitution, and are unalterable by the legislature."

-- and so far as we are aware his statement was not questioned at the time.

In 1807 the right of one William McCreery to a seat in Congress was questioned on the ground that the state from which he was elected had added another qualification, which he did not possess, to those fixed by the federal constitutional provision above quoted. The House of Representatives voted to seat McCreery, thus holding, in effect, that a state could not add anything to the federal qualifications for this office. Defendant's alleged disqualification was not the same as that involved in the present case, but the principle was necessarily the same.

In 1855 the exact question arose. Lyman Trumbull was elected by the legislature of Illinois to the Senate of the United States. Prior thereto he had been elected one of the judges of the Supreme Court of Illinois, for a term of nine years, which term had not expired by several years when he was elected to the Senate. The Illinois Constitution of 1848, article V, section 10, Smith-Hurd Statutes then in force, provided as follows:

"... The judges of the supreme and circuit courts shall not be eligible to any other office or public trust of profit in this state, or the United States, during the term for which they are elected, nor for one year thereafter. All votes for either of them for any elective office (except that of judge of the supreme or circuit court) given by the general assembly, or the people, shall be void."

It will be seen that the Illinois provision went far beyond that of our state, for it applied expressly not only to state offices, but to federal offices, and explicitly stated that any votes given for an election to such office should be void. A protest was filed with the United States Senate against the admission of Senator Trumbull, based on this Illinois constitutional provision, and was discussed upon the floor of the Senate. After considerable argument Senator Trumbull was seated, by a vote of 35 to 8. There have been other cases in which the same question was raised in the Congress of the United States, but both Houses have invariably followed the rule that no qualification additional to those imposed by the federal Constitution itself could be imposed by any state. The same matter has been considered by Justices STORY, KENT and COOLEY, in their well-known works on constitutional law, and all have come to the conclusion that the rule is so plain that it is almost beyond discussion.

While these authorities are not courts, and it may be urged their decisions are not binding upon this court, yet the reasoning of such distinguished writers and the unbroken rule followed by the two Houses of Congress are certainly worthy of our consideration in determining the meaning of the federal Constitution, for of course in case of a conflict it must prevail.

So far as we are aware, the only cases where the point in question has been expressly determined judicially are those of State v. Schmahl, 140 Minn. 219, 167 N.W 481; State v. Howell, 104 Wash. 99, 175 P. 569; Ekwall v. Stadelman, 146 Or. 439, 30 P.2d 1037....