Weekly Arizona journal-miner., 1907-01-09
tFrom Tuesdays Daily ]

Judge Sloan yesterday afternoon rcn. dcrcd a written decision circctually dis. posing of the election contests filed by k. r. Talbot against the present Dis. trict Attorney, R. F.. Morrison, and the suit filed later by Roland Moshcr nginst J. C. Bradbury, on the same grounds.
 Tho decision in full follows:
 The statute is specific in designating inc grounds upon which an election may be contested. A contest is wholly the creature of the statute. Unless. therefore, the statute gives the right it does not exist. No ground except such ns may be specifically provided or such as may be fairly inferred from the statute, may be considered.
 Malconduct on the part of the Board of Judges is made n ground of contest. As l construo the word malconductv as used in the statute, it means the do. ing of any net, fradulcnt in it's char. acter, or the failure to do some net mandatory in it's nature, from which fraud may bc inferred.
 In the ease of Johnstonc vs. Robert. son, our Supreme Court held that the holding of m election in n precinct at n place other than that which was dcs. ignatcd by the Board of Supervisors renders the election in such precinct void Tho facts as reported in the opinion do not show what ground of contest was alleged by the contestant. The Court followed the decisions of the Supreme Court of. California con struing the same statute, and, as it has been held by the Supreme Court of California that the changing of the place of holding the election by the Election Board from that designated by the Board of Supervisors to some other place amounts to maleonduct, it is fair to presume that malconduct on inc part of the Board of Judges was one of the grounds set mp by the contest. mt. IL may very well be thnt the change of the place of holding the election by the Board of Judges from that designated by the Board of Super. visors or by the Justice of the Peace, as the case may be, would amount 10 malconduct, in that it is the mandatory duty of the Board to hold the cleo. ton at the place designated, where IL is possible to do so, and the failure to comply with it's mandatory duty in this regard might well be said to be con structivc, if not actual, fraud.
 The Board of Elections is not author ized, except where no Justice of the Peace he in the the precinct, to des- ignate the place of holding the election Its duty in other regards is specific, and as the statutes do not anywhere say that m election may not be held unless the house or place bc designated by the Board of Supervisors. or the Justice of the Peace, it occurs to me that the situation in such n ease is similar to the casc whcro it be found, on the day of election. that the place designated can not be used, in the latter ease it k generally held by the authorities that the Board of Election may establish n polling placo and pro cecd with thc election, which will be valid unless, perhaps, it appears that a considerable number of electors of the precinct arc prevented thereby from voting. Instead, therefore, of it being malconduet on the part of the Board of Elections to hold the clec- iion, under the facts set mp in the com plaint, it occurs io me that it was ifs mandatory duty to hold such election, and to select and provide place for such election, if none was otherwise provided.
 The object sought by the machinery provided for holding elections is to as certain the will of the people with re- gard to what persons may hold the offices. It should not be used for the purpose of defeating this will where it has been fairly and freely expressed, and wherever it appears that an clce' ton has been held in n precinct duly established and conducted by the of- fcers duly and regularly appointed for such purpose, it must be presumed that there has been full, fair and free ex' pression on the part of and full vote of the qualified electors of such pre-. cinct, unless it appears that fraud, either actual or constructive, was com