Arizona State Land Dept. v. McFate

• Decision Date: 27 January 1960
• Docket Number: No. 7012,7012
• Citation: 87 Ariz. 139,348 P.2d 912
• Parties: ARIZONA STATE LAND DEPARTMENT and Obed M. Lassen, State Land Commissioner, Petitioners, v. Yale McFATE, Judge of the Superior Court of the State of Arizona in and for the County of Maricopa, Respondent.
• Court: Arizona Supreme Court

Page 912

348 P.2d 912

87 Ariz. 139

ARIZONA STATE LAND DEPARTMENT and Obed M. Lassen, State Land Commissioner, Petitioners, v. Yale McFATE, Judge of the Superior Court of the State of Arizona in and for the County of Maricopa, Respondent.

No. 7012.

Supreme Court of Arizona.

Jan. 27, 1960.

Jennings, Strouss, Salmon & Trask, and Roderic M. Jennings, Phoenix, for petitioners.

Wade Church, Atty. Gen. of Arizona, and Jay Dushoff, Asst. Atty. Gen., for respondent.

BERNSTEIN, Justice.

The Arizona State Land Department and the State Land Commissioner, Obed M. Lassen, (hereinafter called the 'petitioners') made original application to this Court for a writ of prohibition requiring the Superior Court of Maricopa County, Honorable Yale McFate presiding, to desist and refrain from any further proceedings in an action instituted against them by the attorney General. The attorney General, acting on behalf of the State of Arizona, petitioned the Superior Court to enjoin petitioners from selling, pursuant to A.R.S. § 37-231 et seq., eight parcels of land located in Maricopa County and belonging to the State of Arizona. The Superior Court, on the day prior to the public auction of these parcels, entered a temporary restraining order enjoining the contemplated sale, and thereafter denied petitioners' motion to dismiss the petition and quash the restraining order. This Court has heretofore issued an alternative writ of prohibition which petitioners seek to have made permanent, thus, in effect, annulling the restraining order.

Petitioners' position, in sum, is that the Superior Court in entering and continuing the restraining order exceeded its jurisdiction for the reasons that the Attorney General did nto exhaust the administrative remedies provided in A.R.S. § 37-214 and that as no appeal was duly taken under that section, the order of the Commissioner directing the sale of the parcels in issue is final; that by virtue of A.R.S. § 12-1802, subdivision 6, petitioners cannot be enjoined from performing their official duties; and that Title 37 of the Arizona Revised Statutes, enacted pursuant to Article X, Section 10 of the Arizona Constitution, A.R.S., vested petitioners with final authority with respect to sales of public land.

The Attorney General raises four objections to the contemplated sale: that the parcels of land were not appraised at their 'true value' as required by Article X, Section 4 of the Arizona Constitution; that the land is being sold on credit without 'ample security,' as required by Article X, Section 4 of the Arizona Constitution; that A.R.S. § 37-241, which prescribes the terms of sale followed by petitioners, is unconstitutional; and that the interests of the State will be 'prejudiced' by the sale, in violation of A.R.S. § 37-236. In answer to petitioners' contentions, the Attorney General urges that petitioners have not demonstrated that the administrative remedies set forth in A.R.S. § 37-214 are available to him, and that in any event these remedies are directed only to his first objection, relating to the 'true value' appraisal of the land, and are not applicable to the others; and that the restrictions set forth in A.R.S. § 12-1802 against enjoining the exercise of a public office do not apply to an official who has acted contrary to law. In addition, the Attorney General Claims that a writ of prohibition is not an appropriate remedy herein.

An issue more basic than those enumerated above, and one which may be determinative of this proceeding, was raised by petitioners before the Superior Court and was joined by the Attorney General on the argument before this Court. That issue is whether the Attorney General had standing to institute on behalf of the State of Arizona the proceeding before the Superior Court to enjoin petitioners from selling the land in issue. The Attorney General predicates his status on the decision of this Court in State ex rel. Morrison v. Thomas, 80 Ariz. 327, 297, P.2d 624, discussed below; petitioners dispute the applicability of that case to this proceeding.

It is clear that if, as a matter of law, the Attorney General did not have such standing and, accordingly, was not a proper party plaintiff, his petition should not have been entertained by the Superior Court and the temporary restraining order should not have issued. Also, if for these reasons the Superior Court should not have taken any proceedings on the Attorney General's petition, a writ of prohibition is a proper remedy for petitioners to prohibit further proceedings on the part of the Superior Court. ¹

There is thus presented to this Court the crucial question relating to the scope of the powers and duties of the Attorney General.

Article V. Section 1, of the Arizona Constitution, establishes the office of Attorney General within the Executive Department of the State. Section 9 thereof provides:

'The powers and duties of * * * Attorney-General, * * * shall be as prescribed by law.'

This Court has held that the 'law' referred to in Article V, Section 9, is the statutory law of the State and not the common law. As was stated in Shute v. Frohmiller, 53 Ariz. 483, 494, 90 P.2d 998, 1003:

'It is true in this state, as in others, that the office of attorney general, together with the other executive offices created by the Constitution, is imbedded in that instrument, but it is equally true that the authority of the legislature to prescribe what the duties and powers of those occupying these offices shall be is imbedded there also, and, this being true, no common-law powers or duties can attach to that office but only those prescribed by statute.'

See also Westover v. State, 66 Ariz. 145, 150, 185 P.2d 315, 318, where it was said that:

'* * * it is clear that in Arizona the Attorney General has no common-law powers * * *.'

In State ex rel. Frohmiller v. Hendrix, 59 Ariz. 184, 188, 124 P.2d 768, 771, this Court concluded:

'We, therefore, must refer to the statutes in order to ascertain what powers and duties the legislature has conferred upon these officers. In so doing we should consider all the statutes affecting the question and so construe them together as to, if possible, give effect to all the provisions appearing therein.'

The statutes which must be referred to are those relating to the official powers of the Attorney General, for it is clear that if he does not have authority to institute this proceeding in his official capacity, he has no authority to prosecute it here or elsewhere in his individual capacity. See A.R.S. § 41-191, subd. B; Conway v. State Consolidated Publishing Co., 57 Ariz. 162, 112 P.2d 218.

The powers and duties of the Attorney General and the Department of Law are set forth generally in Article 5, Chapter 1 of Title 41 of the Arizona Revised Statutes.

A.R.S. § 41-192, subd. A provides:

'The attorney general shall have charge of and direct the department of law, and shall serve as chief legal officer of the state. The attorney general shall:

'1. Be the legal advisor of the departments of the state and render such legal services as the departments require.

* * *

* * *

'3. Approve long range plans for developing departmental programs therein, and coordinate the legal services required by other departments of the state or other state agencies.'

A.R.S. § 41-193, subd. A establishes the Department of Law which, 'unless otherwise provided by law,' shall:

'1. Prosecute and defend in the supreme court all proceedings in which the state or an officer thereof in his official capacity is a party.

'2. At the direction of the governor or when deemed necessary by the attorney general, prosecute and defend any proceeding in state court other than the supreme Court in which the state or an officer thereof is a party or has an interest.

'3. Represent the state in any action in a federal court, the cost thereof and the expenses of the attorney general incurred therein to be a charge against the state.

'4. Exercise supervisory powers over county attorneys of the several counties in matters pertaining to that office and require reports relating to the public business thereof.

'5. At the direction of the governor, or when deemed necessary, assist the county attorney of any county in the discharge of his duties.

'6. Maintain a docket of all proceedings in which the attorney general is required to appear, showing the condition thereof, the proceedings therein, the proceedings subsequent to judgment and the reason for any delay of execution.

'7. Upon demand by the legislature or either house thereof, any public officer of the state or a county attorney, render a written opinion upon any question of law relating to their offices.

'8. Perform other duties prescribed be law.'

The above provisions make it clear that the fundamental obligation of the Attorney General is to act as legal advisor to the officieal agencies of the State. The legal services of his Department must be furnished whenever required by a department of the State even in situations where the Attorney General may not agree with the policies pursued by the particular department. Thus, as stated in Crane v. Frohmiller, 45 Ariz. 490, 503, 45 P.2d 955, 961:

'So far as legal services are concerned, the Attorney General is required by law to furnish them. If for any reason he feels that he is personally unable properly to represent the state in the pending litigation, the Legislature has given him unlimited power to choose any competent attorneys as assistants * * *.'

The dependency of State departments upon the legal services of the Attorney General is made clear in A.R.S. § 41-192, which provides:

'E. Notwithstanding any other provision of law to the contrary, no state agency other than the attorney general shall employ legal counsel or make an expenditure or incur an indebtedness for legal services, but the interstate stream commission and the industrial commission shall be exempt from the provisions of this...