Merrill v. Phelps

• Decision Date: 14 November 1938
• Docket Number: Civil 4003
• Citation: 52 Ariz. 526,84 P.2d 74
• Parties: ROY MERRILL, as Sheriff of Maricopa County, Arizona, and C. W. PETERSON, GEORGE FRYE and JOHN A. FOOTE, as Members of the Board of Supervisors of Maricopa County, Arizona, Appellants, v. M. T. PHELPS, as Judge of the Superior Court of Maricopa County, Arizona, Appellee
• Court: Arizona Supreme Court

84 P.2d 74

52 Ariz. 526

ROY MERRILL, as Sheriff of Maricopa County, Arizona, and C. W. PETERSON, GEORGE FRYE and JOHN A. FOOTE, as Members of the Board of Supervisors of Maricopa County, Arizona, Appellants, v. M. T. PHELPS, as Judge of the Superior Court of Maricopa County, Arizona, Appellee

Civil No. 4003

Supreme Court of Arizona

November 14, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. Wm G. Hall, Judge. Judgment reversed and cause remanded with instructions.

Mr John W. Corbin, County Attorney of Maricopa County, and Mr Lin H. Orme, his Deputy, for Appellants.

Messrs Baker & Whitney, Mr. Lawrence L. Howe, Mr. Arthur T. LaPrade Mr. Herman Lewkowitz, Mr. A. S. Gibbons, Mr. Henry Miller, Messrs. Snell, Strouss & Salmon, Messrs. Armstrong, Kramer, Morrison, Roche & Duffy, Mr. James E. Nelson, Messrs. Cunningham & Carson, Mr. Henderson Stockton, Messrs. Clark & Clark, Mr. V. L. Hash, Mr. W. F. Dains, and Mr. David P. Jones and Mr. Harold E. Whitney (of Counsel), for Appellee.

OPINION

LOCKWOOD, J.

This is an action by M. T. Phelps, as judge of the Superior Court of Maricopa County, hereinafter called plaintiff, against Roy Merrill as sheriff of said county, and C. W. Peterson, George Frye and John A. Foote, as members of the board of supervisors thereof, hereinafter called defendants, seeking a declaratory judgment that plaintiff has a right to have two court bailiffs or attendants upon Division No. 1, of the Superior Court of Maricopa County, therein presided over by plaintiff, with the right to appoint and control them. A judgment was rendered in favor of plaintiff in all respects, and from such judgment defendants have appealed.

There are two questions raised by the appeal, the first being whether or not a declaratory judgment may be rendered in a case of this nature, and the second whether the judgment which was rendered in the lower court is in accordance with the law. The action is based upon sections 4385 to 4390, the material portions, so far as apply to this action, being as follows:

"§ 4385. Declaratory judgments authorized; form and effect. Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed, and the action shall not be open to the objection that a declaratory judgment only is prayed for. The judgment may be either affirmative or negative, and has the force and effect of a final judgment, subject to appeal as in other actions."

"§ 4386. Person interested or affected may have declaration. Any person interested... or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder. ..."

"§ 4387. Person beneficially interested may have declaration; enumeration not a limitation....

"The enumeration in this and the preceding sections does not limit or restrict the exercise of the general powers conferred, in any action where declaratory relief is sought, in which a judgment will terminate the controversy or remove an uncertainty."

We think it is clear that the action does lie. The plaintiff claims that he, in his official capacity, has the right to perform certain acts, and that these rights are affected by certain statutes. It also appears from the pleadings that the defendant sheriff claims the same right and that there is a decided controversy and uncertainty as to which official is correct in his contention. We think that a declaratory judgment is the simplest and the best way of determining such right, and that it is fully within the intent and the language of the statute. This being the case, it is necessary for us to ascertain in whom the right to determine the number of bailiffs or court attendants, and to appoint them and control their actions, inheres, the judge of the superior court or the sheriff of the county.

Under the common law of England, the judges did not sit solely in certain particular territorial areas. Their jurisdiction extended to all parts of the country, and they held court part of the time at Westminster, and part of the time in such places as the business of the nation required. When they exercised the latter function, it was the custom from time immemorial that the sheriff of the county in which the court was to be held, who was the chief administrative officer of that county, met the judge as he entered the county and from that time on furnished him all attendants and other conveniences necessary to carry on the business of the court, obeying its orders in all respects as to what was done. As time went on, however, the office of sheriff, which originally was a very important one in connection with the administration of justice, became more or less of an honorary and ornamental position, and the court gradually took over many of the functions theretofore exercised by the sheriff. Murfree on Sheriffs, sec. 427. The common law of England, so far as applicable to our circumstances and conditions, is the law of Arizona. Hageman v. Vanderdoes, 15 Ariz. 312, 138 P. 1053, L.R.A. 1915A 491, Ann. Cas. 1915D 1197; Masury & Son v. Bisbee Lumber Co., 49 Ariz. 443, 68 P.2d 679; sec. 3043, Rev. Code 1928. The power exercised by the sheriff under the common law still pertains to our sheriff, except in so far as it has been modified by constitutional and statutory provisions. We turn then to these last-named sources to see whether anything therein throws a light upon the present situation. Article 12, section 4, of the Constitution, which refers to counties and county officers, reads as follows:

"The duties, powers, and qualifications of such officers shall be as prescribed by law...."

Since the sheriff is a county officer, the legislature, under this section, obviously has the power to fix his duties and powers, except in so far as it may be limited by other portions of the Constitution. Section 837, Revised Code 1928, sets forth the duties of the sheriff as follows:

"Duties of sheriff. The sheriff shall: ... 2. attend all courts, except justice and police courts, at their sessions held within his county, and obey their lawful orders and directions;..."

Section 3693, Rev. Code 1928, is in the following language:

"Place of holding court; provision therefor. The sessions of the superior court shall be held at the county seat; if a room for holding the court be not provided by the county, together with attendants, fuel, lights, and supplies, suitable and sufficient for the transaction of business, the court may direct the sheriff to provide the same and the expenses thereof shall be a county charge."

These provisions have appeared in our statutes since early territorial days, and were carried forward, after the adoption of the Constitution in 1912, in almost identical language. It will be seen therefrom that it is the duty of the sheriff to attend upon the court and obey all of its lawful orders. This, of course, may be done either by the sheriff in person or by his lawfully authorized deputies. In other words, he is the executive arm of the court, acting under its orders in all respects, but his election, or the selection of his deputies, is not within the jurisdiction of the court. That is governed by other provisions of the law. Article 12, sec. 3, Const. of Arizona; secs. 59, 824 and 827, Rev. Code 1928. So far, therefore, as a court attendant is required, it would seem plain that either the sheriff or his legally appointed deputies must act, and that the judge of the superior court, while he may direct what they should do, has no authority to interfere in the choice of the deputies.

But, it is urged, there are many duties performed by bailiffs, or court attendants, for which the services of a peace officer are not necessarily required. Plaintiff enumerates the duties of court attendants in his complaint as follows:

"(a) To direct the jurors to their places in the jury box while impaneling the jury;

"(b) To maintain order and decorum in the court room at all times during the sessions of the court;

"(c) To prevent the effacing and destruction of the furniture and fixtures in the court room;

"(d) To see that such court room is properly lighted, ventilated and heated;

"(e) To take charge of the jury when under the rule and after the case has been finally submitted, and to see that no one communicates with the jury during its deliberations;

"(f) To wait upon the judge while upon the bench and to convey to the judge and to lawyers such law books as they may request;

"(g) To keep the corridors clear when the court room is crowded and to keep order therein;

"(h) To call witnesses into the court room and answer telephone calls at all times;

"(i) To call attorneys and others whose attendance upon the court are required; and

"(j) To do numerous other duties not hereinabove specifically mentioned and set out."

It is plain that many, if not most, of these services can be performed by any reasonably intelligent individual, and that they involved to a great extent the duties ordinarily performed by ushers, janitors and pages, rather than peace officers authorized to maintain order and make arrests. But it by no means follows that because these duties are not such as can be performed only by peace officers, such officers may not be required to perform them. That these services are reasonably necessary for the proper...