Arizona republican., 1912-07-11
Appeal From Justice Phil lips Order Dissolving In junction Against the Sec retary of State Taken Up Yesterday
NEW COMPLICATION
 HAS BEEN PRESENTED
In One Respect, State Elec tion Law Creating Can wasting Board Is Found to Be in Conflict With the Constitution

When the election case came before the supreme court for argument yes terday forenoon an entirely new fea- ture was injected into it by ques- ton put to Judge Carpenter, repre- senting the attorney general, by Chief Justice Franklin when he ask ed Carpenter if the court should hold the Saxon law valid and order an election this fall what would be done about a canvassing board The ques- ton apparently took Carpenter un- awares and he said candidly he had not considered that phase of the case. However, it was his opinion it might be necessary for the governor to convene the legislature in eXtraOrdin- ary session in order to supply what seems to be a serious defect in the law.
 The argument. which began at 10 o'clock yesterday morning, had been in progress an hour and a half when the chief justice interposed his ques- ton. Several phases of the matter at issue had been suggested by each of the members of the court and these had brought out a number of points not discussed when the case came up in superior court before Judge Phillips But it was when Chief Justice Franklin touched upon the question of a canvassing board, q feature that apparently has been overlooked by all the attorneys, that the most fnteresting phase of the argument-Was reached.
 Justice Franklin called attention, in his question to MT. Carpenter to an apparent direct conflict between the language of the constitution and the language of the election law. "Ehe constitution fixes specifically the duties of this court" the chief jus tice said These duties are to be solely judicial and it is expressly provided that we shall perform no other duties than those directed by the constitution. Now, there is a provision in this law which makes the chief justice a member of board whose duty it shall be to can vass the eletcion returns, and that duty is apparently in conflict with the constitutional provision. I ask YOU what would then be done in the event the court holds this election law valid? If the constitution pro- hibits the members of this court from acting in any other capacity than to perform the judicial duties as laid down by that instrument, and if it is an indispensable requisite that the canvassing board consist of three members, what. in your judgment. is to be done in the matter of can wasting the election returns"
 Judge Carpenter said he had not examined that feature of the case but he would say, without having time to make an investigation, that there would seem to be no objection to the governors issuing a proclamation for another special session. when this defect could be corrected.
 If will be seen readily enough that this is an entirely new feature of the case and one which has here tofOre escaped the notice of every one connected with the proceeding It's result is to complicate still further the already badly complicated elec- tion matter: and after the argu- mont was over and the court had taken the case under advisement the noint was freely discussed about the caDitol Opinions were not wanting .o the effect that this point alone will be decisive in rendering the election statute invalid.
 There was one matter plainly ob- .arvable as the case progressed and that was that the members of the supreme court have already taken the trouble to inform themselves pretty thoroughly about the points at issue Their questions to counsel showed nrettv conclusively that they are en- tfrelv familiar with all the various ,,atters that have been discussed since the injunction proceeding was started in the lower court: and fol this reason it is believed thelr de cision will not be long delayed. How ever thev have asked that both side' submit briefs which shall include tn opinion of Judge Phillips, and 1t evident the case will be thorough. digested before a decision is handed down This opinion is expected D. the end of the week
 In the course of Judge Carpenter arpument he was asked whether there should be no election next 1dl tbe governor would be poWerless [ call 8 special session of the leglsid ture after the first of next January
 Judge Carpenter said he though that undoubtedly the governor Woul have no such power. "The member of this legislature he said, unde the nrovisions of the constitution WI