Arizona republican., 1912-07-07
Judge Phillips in a Verbal Opinion Held That the Legislative Act g Is Not Contrary to the Constitu- tiOn
APPEAL TO BE TAKEN
 TO SUPREME COURT
Tn a Subsequent Statement Judge Phillips Believes That the Matter Was I'm properly Brought Before the Court

Without filing a formal written opinion Judge J. c. Phillips yesterday decided the Davis Osborn election pro- ceeding in favor of the respondent. The injunction was dissolved, the court thereby declaring that the cleo ton law is valid in providing for an election of state, county, and precinct officers the first Tuesday after the first Monday in November, Steps have been taken to perfect an appeal and the proceeding will go to the supreme court without delay.
 The decision of Judge Phillips was handed down thus early at the re- quest of both parties. It was realized that it is absolutely necessary that the case be decided as early as pOssi- ble; and furthermore it was also un- derStoOd that the decision of the su- periOr court was required as a mere formality-that in any event the mat ter would be passed upon by the court Of last resort. Presumably there will be as much expedition as possible in getting the decision of that court also as it is highly desirable that if the secretary of state is to do the preliminary work toward holding the primaries that work should be done as soon as possible.
 In discussing the case yesterday afternoon, Judge Phillips said: T did not have a great deal of time but l went into the authorities thoroughly and ara~convinced my decision is grounded on the law. I hold this view for several reasons. For instance, in saving the injunction will not lie, I am supported by the authorities on several grounds. For one thing l am not satisfied thoroughly that, in any event an injunction was the proper proceeding. In fact, I am not certain any proceeding could have been brought prior to an election. There are many authorities and they are the highest authorities that have spoken on this subject, who contend that this is a political question pure and simple, in which event the legis- lature is the only branch of the gov ernment that can act. It is apparent tO everybody that court cannot fix the time or manner of holding cleo tions-that authority is vested solely in the legislature. And when the leg islature passes an act saying an cleo ton shall be held at a certain time there is very good authority for say ing that the court is not given juris- diction to overrule the legislature by an injunction proceeding.
 Tt follows then, if we take this view of the case, that the legislature, having provided for an election and having fixed the time, the only thing to do is to go ahead and hold that election according to the requirements of the statute. Then. the right of any elected official to hold his office can be tested by a quo warTantO proceed ing. It is quite certain that remedy exists, and I am not sure it is not the only one that does exist
 Tt seems to me that ground alone is sufficient for saying the injunction will not lie. But there are other questions. While the constitution provides for a general election the first even numbered year after the date of admission, it does not, in any place. say there shall not be an cleo tion prior to that time. And the fact remains that in more than one place it says the terms of certain officers end the first Monday of January, 1913. So. taking all these matters into con- sideration, and taking into consider ation the fact that the legislature has provided for an election this coming fall, it does not seem to me that there is ground for the court to step in and say that election shall not be held.
 Then, if we are to consider the in- tent of the makers of the constitution we all know what that intent was We all iHOw the makers of the con s.i'ution-at least it was 80 under stood by the candidates-intended that the first set of officers should serve only for the short term. I should certainly be glad if I had been elected to a three years term myself, and suppose every other official takes the same view. If l were to be a candi- date again personally l should much prefer that my present term should extend to 1915 instead of to 1919. Bu we all understood-every candidate understood. that he was running fol the short term. There is no question about that. It was the general i'm pression and it was talked every where. It was understood to be tho intent of the constitution makers; anC l say again if that intent is to b, taken into consideration it is certain ly true that it was for an election next fall"
 George D. Christy, republican can ddate for attorney general at the lat