State ex rel. Morrison v. Thomas

Decision Date14 May 1956
Docket NumberNo. 6121,6121
Citation297 P.2d 624,80 Ariz. 327
PartiesSTATE of Arizona, ex rel. Robert MORRISON, The Attorney General of the State of Arizona, Petitioner, v. Frank E. THOMAS, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent.
CourtArizona Supreme Court

Robert Morrison, Atty. Gen., Harmon S. Puckett, Asst. Atty. Gen., and Jack Marks, Sp. Asst. Atty. Gen., for the State.

James E. Flynn, Jack Choisser, Moore & Moore, and Richard P. Meason, Phoenix, for respondent.

LA PRADE, Chief Justice.

This is an original proceeding in certiorari, initiated by an application of the State of Arizona, on relation of its Attorney General. The State seeks to have the judgment entered by Frank E. Thomas, sitting as a Judge of the Superior Court, in and for the County of Maricopa, granting a liquor license to one Mary Lou Brown, and the license issued by Mr. Duncan, Superintendent of the Department of Liquor Licenses and control, pursuant to said judgment, declared to be null and void. Respondent moved to quash the writ. On application fourteen similar writs were issued. By stipulation the fifteen cases (6118, 6121 to 6134, both inclusive) were consolidated as each presented identical questions of law. This opinion and decision is determinative of each of said cases.

On June 16, 1955, the Superintendent of the Department of Liquor Licenses and Control of the State of Arizona denied an application for a Series No. 6 spirituous liquor license to Mary Lou Brown on the ground that the issuance of such a license would exceed the quota set by statute. Mary Lou Brown appealed that decision to the Superior Court where, after a trial de novo, the court reversed the Superintendent and ordered him to issue the license.

After the above judgment was rendered no attempt was made by the Superintendent to secure a review of such decision by this court. Mr. Robert Morrison, the Attorney General, asked Mr. Duncan to sign the necessary papers required for an application for a writ of certiorari in order to review the Superior Court's action. Duncan allegedly advised the Attorney General's office that he wished to have more time to think the matter over before signing the application. Later the Attorney General wrote Duncan requesting him to take immediate action. Morrison added that the failure of the Superintendent to take such action would be considered by him to mean that he, Duncan, did not wish to have the judgment reviewed and, therefore, the Attorney General himself would have to sign the necessary documents on behalf of the State. Duncan wrote Morrison on the same day stating that he was still studying the matter and had 'not as yet decided to appeal'. The application for the writ on behalf of the State was signed by Morrison in his capacity as Attorney General.

The State's contention is that the Superior Court Judge exceeded his jurisdiction in ordering the Superintendent to issue the license, and that since no appeal lies, certiorari is the only remedy available to it. Respondent argues (1) that the State as such is not a 'party beneficially interested' in the original proceedings and therefore has no right to a writ of certiorari; (2) that the Attorney General has no authority or power to act for the State in this situation, such power and authority residing exclusively with the Superintendent; (3) that the lower court correctly interpreted Section 72-107, 1952 Cum.Supp., A.C.A.1939, (A.R.S. §§ 4-206, 4-207), dealing with the establishment of liquor license quotas; and (4) that. even if the court erred in its construction of that section, such error did not constitute an act in excess of the court's jurisdiction and therefore certiorari does not lie.

At the outset it becomes necessary to determine whether the State has any standing to apply for this writ in the absence of permission or other affirmative action by the Superintendent. In other words, is the State precluded from taking action in a matter in which it has a great interest if one of its officers admittedly in charge of such matters refuses or fails to pursue a particular course of action? Respondent contends that if the State wished to become a party to the original proceeding (Brown v. Duncan), it could have done so by seeking leave to intervene, and failure to have intervened now precludes the State from seeking a review. We cannot agree with this contention. The State of Arizona is a body politic, the very nature of which requires it to act through officers and agents. As a result every lawful action of its agents done within the scope of their authority is an act of their principal, the State of Arizona. Consequently, when the Superintendent appeared in court in the matter involving the issuance of a liquor license to Mary Lou Brown, he was acting in his official capacity and represented the State. Obviously, the State has a very direct interest in this matter since it involves the issuance of a license to deal in spirituous liquors, apparently in excess of the quota established by statute. The State was a party to that action just as much as it would have been had the cause been entitled Brown v. State of Arizona. Ford Motor Co. v. Department of Treasury of State of Indiana, 1945, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389; Pacific Fruit & Produce Co. v. Oregon Liquor Control Comm., D.C.Or.1941, 41 F.Supp. 175.

A situation somewhat similar to the one at bar arose in Louisiana during the 1930's when the State instituted an action through its Attorney General to recover certain mineral lands leased to the assignor of defendant by a previous Governor. The defendant argued that the State had no power to bring such an action unless it did so through the State Mineral Board, which had been given 'full supervision of all mineral leases granted by the State', with the accompanying power to 'institute any action to annul' such leases. A second defense was predicated on the principle that the Attorney General had no right to bring such an action without the permission of the State Mineral Board. The Supreme Court of Louisiana held that under the laws of that State there was no question that the Attorney General had such power, but stated that the real question was not whether he had the power to bring the suit, but whether the State had the power, and that the latter question had not been properly raised. State v. Texas Co., 1942, 199 La. 846, 7 So.2d 161. Two years later this precise question was properly brought before the same court. This time the court held that since the State had had the power to sue or be sued in its own name as to matters concerning mineral leases before passage of the statute creating the State Mineral Board, it had not divested itself as sovereign of that right merely by setting up a special board to handle such matters. State v. Texas Co., 1944, 205 La. 417, 17 So.2d 569. The court stated its conclusion succinctly 17 So.2d at page 572 as follows:

'The State Mineral Board, by the statute, has been designated merely the agent of the state to supervise and handle that portion of its affairs which deals with the development of its lands for mineral purposes, and to this end the agent is permitted to right, concurrently with the principal (state), to institute actions in nullity. The board may be likened to an agent of an individual property owner who (agent) has been granted full, but not exclusive, authority in the management and supervision of the owner's holdings, with power to bring suits respecting the property. In such case certainly the owner has not precluded himself to institute all necessary actions.' (Emphasis supplied.)

Following this same reasoning we hereby hold that the State of Arizona, the real party in interest in matters of state concern, is not precluded by the non-action of its agent, the officer designated to supervise this aspect of the State's governmental powers, from seeking to have reviewed in this court the judgment rendered below.

The next question before this tribunal is whether the Attorney General has the right on behalf of the State to apply for the writ under the circumstances of this case. We have already determined that the State has the power to do so, but here the narrow question is whether the Attorney General can represent the State without the permission of the administrative officer whose department has been given the authority to handle such affairs generally. If this were a state in which the Attorney General possessed the common-law powers of the office there would be no need to make this inquiry since once the State had the power to sue, automatically the right and duty to represent the State in such a matter would fall upon the Attorney General. But in view of the fact that in this jurisdiction the Attorney General possesses only those powers granted to him by the Constitution and statutes, Shute v. Frohmiller, 1939, 53 Ariz. 483, 90 P.2d 998, we must look to them for the answer to this question. Section 9, Article 5 of the State Constitution states that the powers and duties of the Attorney General 'shall be as prescribed by law'. The pertinent sections of the code dealing with the Attorney General follow in part:

4-607. Department of law (Organization).- (a) The department of law shall consist of the attorney general and the subdivisions of the department created as provided in this Act. Unless otherwise provided by law the department shall succeed to the powers and duties vested in and imposed upon the attorney general, and shall: 1. Prosecute and defend in the supreme court all causes 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 and cause in a state court other than the supreme court in which the state or an officer thereof is a party or has an interest; * * *.' (Emphasis supplied.)

'4-609. Powers...

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