Duffield v. Ashurst

• Decision Date: 20 March 1909
• Docket Number: Civil 1080
• Citation: 100 P. 820,12 Ariz. 360
• Parties: ELMER H. DUFFIELD, Petitioner, v. HENRY F. ASHURST, as District Attorney of Coconino County, Arizona Territory, Respondent
• Court: Arizona Supreme Court

100 P. 820

12 Ariz. 360

ELMER H. DUFFIELD, Petitioner, v. HENRY F. ASHURST, as District Attorney of Coconino County, Arizona Territory, Respondent

Civil No. 1080

Supreme Court of Arizona

March 20, 1909

PETITION for writ of mandamus to require respondent to institute quo warranto proceedings. Petition denied.

The facts are stated in the opinion.

U. T Clotfelter, and Paul Burks, for Petitioner.

The duty of the district attorney, upon a proper showing, to bring quo warranto is not discretionary, but mandatory. Buggeln v. Doe, 8 Ariz. 341, 76 P. 458. Quo warranto may be brought upon the verified complaint of any person. Rev. Stats. Ariz. 1901, sec. 3794. The act of 1907 is invalid because it attempts to delegate legislative power to the board of supervisors. The legislative power of Arizona is vested in the legislature, and that power cannot be delegated. The granting of a franchise is a legislative act. People v. Board of Supervisors, 122 Cal. 421, 55 P 131; Quinchard v. Board, 113 Cal. 664, 45 P. 856; Dougherty v. Austin, 94 Cal. 601, 28 P. 834, 29 P 1092, 16 L.R.A. 161; People v. Johnson, 95 Cal. 471, 31 P. 611; State v. Baum, 33 La. Ann. 981; State v. Armstrong, 3 Sneed (Tenn.), 634; City v. Shelton, 1 Head (Tenn.), 24; People v. Parks, 58 Cal. 624.

The act of 1907 is special, because it establishes a class based on existing conditions only, and so constituted as to preclude addition to the numbers included within the class. Bravin v. Mayor, 4 Ariz. 83, 33 P. 589; Harwood v. Perrin, 7 Ariz. 114, 60 P. 891; Edmunds v. Berbrandson, 2 N.D. 270, 50 N.W. 970, 14 L.R.A. 725; Wagner v. Milwaukee, 112 Wis. 601, 88 N.W. 577; Binney's Restrictions on Local and Special Legislation, pp. 54, 55, 59, and 78; Bloomer v. Bloomer, 128 Wis. 297, 107 N.W. 974; Rutten v. Mayor, 73 N.J.L. 467, 64 A. 573. Chapter 55 of the Session Laws of Arizona of 1907 is void because inconsistent with the laws of the United States.

Henry F. Ashurst, and Edward M. Doe, for Respondent.

"Every action shall be prosecuted in the name of the real party in interest." Rev. Stats. Ariz. 1901, par. 1298.

The act of 1907 is valid in its entirety. "I consider it a sound proposition, that wherever the legislative power of a government is undefined, it includes the judicial and executive attributes." Copper v. Telfair, 4 Dall. 14, 1 L.Ed. 721.

"There is nothing in the constitution of the United States which forbids the legislature of a state to exercise judicial functions. . . . Retrospective laws which do not impair obligations of contracts, or partake of the character of ex post facto laws, are not condemned or forbidden by any part of that instrument." Satterlee v. Matthewson, 2 Pet. 380, 7 L.Ed. 460.

The act is not objectionable as granting special privileges or franchises because it is made applicable to every person who shall, in the future, bring himself within its provisions and, as well, every person who, in the past, has brought himself therein. It is absolutely uniform in its application to all of a well-defined class.

OPINION

NAVE, J.

-- This is an original proceeding in this court to obtain a writ of mandamus directed to the district attorney of Coconino county, commanding him to institute quo warranto proceedings in the district court of Coconino county to determine by what right one Ralph H. Cameron is exercising a franchise to maintain and collect tolls upon a trail in that county leading down from the rim of the Grand canyon of the Colorado river, and known as the "Bright Angel trail."

The respondent has interposed to the petition an answer in the nature of a plea in abatement, setting forth that petitioner is not a taxpayer or a resident of Coconino county, and therefore that he is not the real party in interest, nor any party in interest in the subject matter of the petition. To this answer the petitioner has demurrer. Paragraph 3794, Civil Code of 1901, under the title of "Quo Warranto," provides as follows: "3794 (section 1). An action may be brought by the district attorney, in the name of the Territory, upon his own information or upon the verified complaint of any person, in the district court sitting for the county for which he is district attorney, against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within said county; and it is his duty to bring the action whenever he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised: Provided, that any person claiming such office or franchise may bring such action in his own name by first applying for and obtaining the leave of said court so to do: And, provided further, that if the office be a territorial office, the attorney general of the Territory shall have like power herein vested in district attorneys." We have already had occasion to hold, in applying this statute, that, where the facts presented to the district attorney show as a matter of law that a franchise is unlawfully being exercised and are not in dispute, the refusal by the district attorney to institute the quo warranto proceedings is a violation of his duty, and that we may compel him to perform that duty by our writ of mandate. Arey v. Ashurst (decided January 9, 1906), 103 P. 1133, not officially reported; Buggeln v. Doe, 8 Ariz. 341, 76 P. 458. It is to be observed that the statute which we have just quoted imposes no restriction by way of residence or interest as qualifying the person who may lay a complaint before the district attorney. Doubtless the legislative theory is that in many instances where a public franchise is unlawfully usurped or exercised, there is no person who is especially interested in the sense that his rights are being infringed in a manner or degree other than the rights or interests of each individual of the general public are infringed, and that to impose a restriction of beneficial interest or residence upon the complaining person might be operative to prevent effectual action to induce the district attorney to institute proceedings where the district attorney is indisposed to perform his duty. Paragraph 3074 of the Civil Code of 1901, with reference to the writ of mandamus, provides that "it shall be issued upon affidavit on the application of the party beneficially interested." This means, of course, that the petitioner for a writ of mandamus must be beneficially interested in the subject matter of that writ. Inasmuch as any person may lay the complaint before the district attorney upon which it may become his duty to institute proceedings in quo warranto, it follows that, where the district attorney has exercised an unwarranted discretion in refusing to institute proceedings upon such complaint, the person who brought the complaint is the person beneficially interested in the subject matter of the writ of mandamus which is sought to compel the appropriate action. The unlawful refusal to act upon such complaint is an infringement of the right of the complainant. For this reason it follows that the petitioner's demurrer to the respondent's special answer is well taken, and therefore the demurrer is sustained.

Following the special plea of which we have just disposed, the respondent has interposed a general demurrer to the petition. For purposes of our adjudication of this demurrer, we may state sufficient of the facts appearing in the petition without setting forth the petition in its entirety. The main controversy hinges upon the validity of chapter 55 of the laws enacted by the twenty-fourth legislative assembly, in 1907, amendatory of Civil Code of 1901, paragraphs 3998-4009 prescribing the terms upon which toll-roads may be constructed and maintained within the territory. Pursuant to the provisions of paragraphs 3998-4009, prior to its amendment, one Berry constructed the "Bright Angel trail" and operated it as a toll trail. All of the provisions of that chapter were complied with by Berry. Subsequently Berry undertook to convey his franchise to one Ralph H. Cameron, who took possession of the trail under the conveyance and collected tolls thereon. Proceedings in quo warranto were instituted against Cameron in the district court of Coconino county which resulted, in the year 1903, in a judgment of ouster upon the ground that the franchise acquired by Berry was not transferable. Paragraphs 3998-4099, supra, provided that the toll-road franchise should exist for ten years, renewable for an additional period of five years under certain conditions. The franchise in question was extended. The maximum life of the franchise under the extension was reached on January 31, 1906. On February 1, 1906, the board of supervisors of Coconino county, acting under the provisions of paragraph 4004, entered into a contract with one Ferrall for the maintenance of the trail and the collection of tolls thereon in the interest of the county. Ferrall took and retained possession thereof under that contract until April 17, 1907. On March 18, 1907, chapter 55, above referred to, became a law. This amendatory law provided, among other things: That the term "toll-road," as used in paragraphs 3998-4009, shall be construed to include trails and to have included trails from the time of its enactment; that all rights and franchises provided for by paragraphs 3998-4009 shall be transferable, and shall be deemed to have been transferable at all times; that all conveyances or attempted transfers of any such franchises are ratified and confirmed; that the board of supervisors of any county in the territory in which any toll-road shall have been or may hereafter be constructed or maintained may, either before or after the expiration of the term of any franchise, extend the term thereof for...