Miami Copper Co. v. State

• Decision Date: 22 June 1915
• Docket Number: Civil 1411
• Citation: Miami Copper Co. v. State, 149 P. 758, 17 Ariz. 179 (Ariz. 1915)
• Parties: MIAMI COPPER COMPANY, a Corporation, Appellant, v. STATE, Appellee
• Court: Arizona Supreme Court

149 P. 758

17 Ariz. 179

MIAMI COPPER COMPANY, a Corporation, Appellant, v. STATE, Appellee

Civil No. 1411

Supreme Court of Arizona

June 22, 1915

APPEAL from a judgment of the Superior Court of the County of Gila.G. W. Shute, Judge.Reversed and remanded.

Messrs Alderman & Elliott, for Appellant.

Mr Wiley E. Jones, Attorney General, and Mr. Norman J. JohnsonCounty Attorney, for the State.

OPINION

FRANKLIN, J.

This action, being in the nature of an action of debt, was instituted by the state of Arizona in the superior court to recover a penalty under chapter 50, Laws of 1912, Regular Session.The act provides:

"Section 1.That the business of conducting and operating an electric light plant, or any electric power plant, is hereby declared to be hazardous and dangerous to those employed therein.

"Sec 2.That it shall be unlawful for any person, corporation or association operating or managing any electric light plant, or any electric power plant, or both, within this state, to permit, or cause to be permitted, any operating engineer or fireman, or switchboard operator, or any attendant in its service, employed in or about such plants, to be on duty more than eight hours in any twenty-four consecutive hours; except in cases of emergency when life or property is in imminent danger.

"Sec. 3.That any person, corporation or association that shall violate section 2 of this act, shall pay a fine not to exceed one hundred dollars ($100.00) for each violation of this act.Each day's violation of any of the provisions of this section shall constitute a separate offense.

"Sec. 4.That the fine, mentioned in section 3 of this act, shall be recovered by an action of debt, in the name of the state of Arizona, for the use of the state, who shall sue for it against such person, corporation or association violating this act, said suit to be instituted in any court of this state having competent jurisdiction.

"Sec. 5.That the said fine, when recovered as aforesaid, shall be paid without any deduction whatever into the general fund of the state of Arizona. . . ."

The statute directs that an action of debt in the name of the state, and for the use of the state, is the appropriate mode of proceeding to recover the prescribed penalty.

There are 15 different causes of action separately stated in the complaint, and in the aggregate the amount of money sought to be recovered is $1,500.Each cause of action, separately stated, is grounded upon an alleged violation of the statute quoted, and the liability incurred for each day's violation of the statute is a fine not exceeding $100.

The case went to the jury on June 19, 1913.The jury rendered its verdict in favor of the state in the sum of $600, and upon such verdict the judgment of the court was accordingly entered.

In submitting the case to the jury the court gave the following instruction:

"You are further instructed, gentlemen, that in this case the concurrence of three-fourths of your number shall be a sufficient number to return a verdict in the case.In case you should unanimously agree you should cause your foreman, who will be selected after you have retired, to sign that form of verdict which represents your conclusion.In case you should not agree unanimously, but nine of your number concur, those nine or more so concurring must sign the form of verdict to be agreed upon and return it into open court."

The verdict of the jury was not unanimous, but nine of such jurors did concur and returned the verdict against the defendant into court in accordance with the instruction given, and upon the verdict so rendered judgment against the defendant was entered.

There are two questions litigated on this appeal.It is first objected that the penalty of the statute, taken singly, is below the jurisdiction of the superior court, and that it may not be cumulated in the same action so that the superior court may have jurisdiction.It is next claimed that, the case presented being cognizable at the common law, the verdict in such case must be concurred in by twelve jurors as at common law, else there can be no verdict.

Paragraph 1280 of the Revised Statutes of Arizona of 1901 provides: The complaint may contain several different causes of action, and the answer may contain several different defenses.And paragraph 1291 provides: Only such causes of action may be joined as are capable of the same character of relief.Actions ex contractu shall not be joined with actions ex delicto.In actions ex delicto, there shall not be joined actions to recover for injuries to the person, to property, or to character; but they shall be sued for separately.

Here, then, is statutory authority for joining several different causes of action in the same complaint, subject only to the qualification prescribed by paragraph 1291, and it is quite apparent that the causes of action set forth in this complaint do not come within any of the classes disqualified.The several penalties sought to be recovered grew out of an alleged violation of the same provision of the statute; the parties to the action are the same; the several causes of action are grounded in the same right, and are each capable of the same character of relief.When the joinder of actions is permissible, it is said by Mr. Pomeroy, "In fact, the whole proceeding is the combining of several actions into one."Pomeroy on Code Remedies, sec. 336.

The joinder of different causes of action is the subject of statutory regulation.Under our statute there is no objection to any number of distinct penalties under the same provision of the statute being separately stated in the same complaint, thereby, as Mr. Pomeroy says, in such a proceeding combining the several causes of action into one.In other words, in this action there are not 15 suits each for the recovery of a penalty, but it is one suit comprising 15 penalties, which in the aggregate amount to $1,500.In such a case it is not the penalty of the statute taken singly, which determines the jurisdiction of the superior court; but it is the cumulated penalty sought to be recovered in the one action that fixes the jurisdiction.The several penalties incurred may be sued for in one action, and the court having jurisdiction of the aggregate sum is a court of competent jurisdiction in which such suit may instituted within the meaning of the act.One penalty may be within the jurisdiction of an inferior court, but the remedy provided is ample to adopt it to those cases of sufficient magnitude wherein the grievances of the state are in the aggregate of sufficient extent to confer jurisdiction in the superior court.SeeState ex rel. Burell v. Hughes,116 N.C. 430, 21 S.E. 971;Maggett v. Roberts et al.,108 N.C. 174, 12 S.E. 890;Gibson v. Gault,33 Pa. 44;Wolverton v. Lacey,Fed. Cas. No. 17,932;Barkhamsted v. Parsons,3 Conn. 1;Wells v. Cooper,57 Conn. 52, 17 A. 281.

But in another view the jurisdiction was rightly taken.The Constitutions or statutes of the different states usually provide that the jurisdiction of certain courts shall extend only to cases where the amount in controversy shall exceed or shall not exceed a certain sum, and the amount claimed by the plaintiff in good faith in the ad damnum clause of the complaint being the test usually employed to determine the court's jurisdiction in such a case.

By section 9 of article 6 of the Constitution it is granted:

"The number of justices of the peace to be elected in incorporated cities and towns, and in precincts, and the powers, duties, and jurisdiction of justices of the peace, shall be provided by law; provided, that such jurisdiction . . . shall not trench upon the jurisdiction of any court of record, except that said justices shall have concurrent jurisdiction with the superior court in cases of forcible entry and detainer, where the rental value does not exceed twenty-five dollars per month, and where the whole amount of damage claimed does not exceed two hundred dollar. . . ."

Section 6, article 6, of the Constitution, says:

"The superior court shall have original jurisdiction in all cases of equity and in all cases at law which involve the title to, or the possession of, real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, or the value of the property in controversy amounts to two hundred dollars exclusive of interest and costs, and in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for by law; of actions of forcible entry and detainer; of proceedings in insolvency; of actions to prevent or abate nuisance; of all matters of probate; of divorce and for annulment of marriage; and for such . . . cases and proceedings as are not otherwise provided for."

By this grant of power it is apparent that the legislature could in the exercise of its authority vest in the courts of justices of the peace exclusive jurisdiction in cases in which the demand, or the value of the property in controversy, is less than $200, exclusive of interest and costs.It is not sufficient under the constitutional sanction that the law-making power vest jurisdiction in such cases in some court other than the superior court, but to exclude the jurisdiction of the superior court the grant of jurisdiction to such other court must be exclusive.Justices of the peace have such jurisdiction only as may affirmatively be conferred on them by law.By paragraph 1280 of the Civil Code of 1913:

"They shall have jurisdiction to try and determine all civil actions when the amount involved, exclusive of interest and costs does not exceed two hundred dollars."

The jurisdiction thus conferred is, by the statute, not...