City of Phoenix v. Rodgers

Decision Date19 June 1934
Docket NumberCivil 3526
Citation44 Ariz. 40,34 P.2d 385
PartiesCITY OF PHOENIX, a Body Politic and Corporate, JOSEPH S. JENCKES, as Mayor of the City of Phoenix, VERNON CLARK and PETER BLOCK, as City Commissioners of the City of Phoenix, and THOMAS M. SULLIVAN, as Manager of the City of Phoenix, Plaintiffs, v. G. A. RODGERS, as Judge of the Superior Court of the State of Arizona, in and for Maricopa County, THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR MARICOPA COUNTY, and W. C. LEFEBVRE, Defendants
CourtArizona Supreme Court

Original proceeding for Writ of Prohibition. Writ of Prohibition denied.

Mr. F H. Lyman, City Attorney, for Plaintiffs.

Messrs Struckmeyer & Jennings, for Defendants.

OPINION

PER CURIAM.

This is an original proceeding in this court by the city of Phoenix, a municipal corporation, and Joseph S. Jenckes, as mayor, Vernon Clark and Peter Block, as city commissioners of said city, and Thomas M. Sullivan, as manager thereof, against G. A. Rodgers, as judge of the superior court of the state of Arizona in and for the county of Maricopa, and W. C. Lefebvre, asking that this court prohibit the Honorable G. A. Rodgers from proceeding further in the matter of a certain writ of certiorari and contempt proceedings thereon now pending in his court, and prohibit the said W. C. Lefebvre from attempting to exercise any right or perform any duty as city manager of said city.

The facts necessary for a determination of this proceeding are not in question and may be stated as follows: On or about the 31st day of March, 1934, W. C. Lefebvre was by the city commission of the city of Phoenix appointed as city manager of said city, and upon the 2d day of April he duly qualified, and from that date, and up to the 24th of May, was unquestionable both de jure and de facto city manager.

About the 1st of May, 1934, petitioners Jenckes, Clark and Block took office as mayor and city commissioners, respectively; there being two hold-over commissioners, A. C. Sipes and Lester D. De Mund.

On the 8th day of May, George O. Ford, a citizen of Phoenix, filed with the city clerk a complaint alleging that Lefebvre had been guilty of misfeasance and nonfeasance in office. The complaint contained seventeen specifications, and prayed that a hearing be had upon the charges and that upon such hearing Lefebvre be removed as city manager. On the 9th day of May the complaint was presented to the city commission, and a citation was by it issued to Lefebvre to appear on the 14th day of May and answer the charges. An answer was filed, and on the 14th day of May he appeared for hearing. In his said answer he objected to the jurisdiction of the commission to hear the charges, but his objections were overruled and a hearing was commenced, which continued until the 24th day of May. Evidence in support and denial of the charges was received, and on that day the commission, by a majority vote, declared him removed from his position as city manager.

An application was made immediately to Honorable G. A. Rodgers, as judge of the superior court, praying for a review of the proceedings for removal as above set forth and the issuance of a writ of certiorari against the mayor and members of the city commission, and that in the meantime the commissioners and all persons acting under their orders be ordered to desist from further proceedings in the matter to be reviewed. In compliance with the petition for the said writ, one was issued, which contained the following provisions:

"You are, therefore, hereby commanded to certify and return to this court on the 18th day of June, 1934, at 10:00 o'clock A.M., at the courtroom thereof, Division No. 2 in the Courthouse of Maricopa County, State of Arizona, annexed to this Writ, a full, true, and correct transcript of all the papers, records, files, evidence, exhibits and proceedings in your possession or under your control, including all proceedings taken at said hearing, both oral and documentary, in order that the same may be reviewed by this Court and such action be taken thereon as of right should be taken and done.

"And, in the meantime, you, the said Honorable Joseph S. Jenckes, Mayor of the City of Phoenix, A. C. Sipes, Lester D. DeMund, Vernon Clark, and Peter Block, composing the City Commission of the City of Phoenix, and all persons acting under you or under said orders complained of, and all persons having knowledge of this Writ are hereby commanded to desist from further proceedings in the matter so to be reviewed; that no action be taken by you or any of you, or by any persons acting through or under you to enforce or execute said orders complained of, and that you in nowise interfere with the said Petitioner in the discharge of his duties as City Manager. All of said matters mentioned herein are hereby stayed pending his final determination of said proceedings to be reviewed by the above entitled Court."

This writ was served upon the mayor and each of the commissioners.

On the next day after such service, Mayor Jenckes and Commissioners Block and Clark proceeded to appoint one Thomas M. Sullivan as city manager of the city of Phoenix. Thereafter Sullivan attempted to assume the duties of city manager and proceeded, as such manager, to appoint one E. H. Patterson as chief of police of the city, and to inform the various officers and department heads of the city that he was city manager, and that all business of the city was to be conducted by and through him as such manager. An application was immediately thereafter made to the Honorable G. A. Rodgers, alleging the appointment of Sullivan and his actions as aforesaid and asking that Jenckes, Clark, Block and Sullivan be cited for contempt for disobedience of the order above set forth, and an order to show cause why they should not be punished for contempt of the writ of certiorari, theretofore issued, was issued and served upon them. The alleged contemnors appeared and objected to the jurisdiction of the superior court either to make the order to show cause or to find them guilty of contempt, and, after hearing such objections, the Honorable G. A. Rodgers overruled them and ordered the contemnors to file answers therein. A verified answer was filed and evidence taken thereon, and on June 2d the matter was taken under consideration by the court, without any day being fixed for the decision thereof. Thereupon this petition for a writ of prohibition was filed.

Prohibition at common law was a remedy against encroachment on jurisdiction, and its office is to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction, Camron v. Kenfield, 57 Cal. 550; Stein v. Morrison, 9 Idaho 426, 75 P. 246; and the American courts have almost universally recognized and preserved its original nature and function, and, when either a Constitution or a statute confers authority to issue the writ without limiting or enlarging its extent, it is the common law writ which is meant. Camron v. Kenfield, supra; State v. Hogan, 24 Mont. 379, 62 P. 493, 51 L.R.A. 958; O'Brien v. Trousdale et al., 41 Nev. 90, 167 P. 1007. It is an extraordinary remedy granted usually only in cases of necessity, and is ordinarily a matter of sound discretion, to be granted or withheld by the court according to the nature and circumstances of the case, particularly when there is another remedy. In re James C. Davis, 262 U.S. 274, 43 S.Ct. 574, 67 L.Ed. 979; Pacific Rolling Mill Co. v. State Ind. Acc. Com., 191 Cal. 498, 216 P. 602. It may, however, be granted notwithstanding the existence of another adequate remedy, for it is a remedy within the sound discretion of the court to which application is made. Matter of Simons, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094; Hall v. Imperial County Superior Court, 198 Cal. 373, 245 P. 814.

In the present case it is obvious that it is of great importance to the city of Phoenix and its inhabitants that it be determined as speedily as possible who is the legal manager of said city, for under its charter the powers of the manager are so broad that its government cannot function properly so long as its other officers and citizens do not know who is the legally chosen manager. Indeed, in the present case it is obvious that it is only because the various parties have realized this and have with commendable public spirit conducted themselves so as to cause as little friction as is reasonably possible, without jeopardizing any of their alleged rights, that it has been possible that the city government of Phoenix could function at all during the last few weeks. Regardless of the fact, therefore, that it is possible there may be other remedies whereby the question at issue can be determined, we think, if that determination can be hastened by assuming that the writ lies in a proceeding of this nature, we should not hesitate to do so.

We therefore approach the consideration of the question upon the theory that prohibition is a proper remedy under the circumstances above set forth. In determining, however whether the writ should issue, we must always keep in mind that its sole purpose is to determine questions of jurisdiction, and not of fact. In passing upon the present application, therefore, we wish it to be distinctly understood that we are in nowise determining whether the city commission had jurisdiction to remove Lefebvre in the manner in which it did, or whether, if it did have jurisdiction, he was guilty or not guilty of any acts for which he could be removed. Neither shall we attempt in any way to determine whether the superior court of Maricopa county did, on the record made before it, properly exercise its discretion in issuing a writ of certiorari to review the proceedings of the city commission in their alleged...

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