State ex rel. Sullivan v. Moore

• Decision Date: 01 February 1937
• Docket Number: Civil 3824
• Citation: 64 P.2d 809,49 Ariz. 51
• Parties: STATE OF ARIZONA ex Rel. JOHN L. SULLIVAN, Attorney General of the State of Arizona, Plaintiff, v. THAD M. MOORE and FRANK LUKE, Defendants
• Court: Arizona Supreme Court

64 P.2d 809

49 Ariz. 51

STATE OF ARIZONA ex Rel. JOHN L. SULLIVAN, Attorney General of the State of Arizona, Plaintiff, v. THAD M. MOORE and FRANK LUKE, Defendants

Civil No. 3824

Supreme Court of Arizona

February 1, 1937

Original proceeding in quo warranto by plaintiff against defendants to determine their right to the offices of Tax Commissioner. Judgment for plaintiff.

Mr John L. Sullivan, Attorney General, and Mr. Charles L Strouss (of Counsel), for plaintiff.

Mr. F C. Struckmeyer and Messrs. Cunningham & Carson, for Defendant Thad M. Moore.

Mr. Thomas W. Nealon, Miss Alice M. Birdsall and Mr. Emmet M. Barry, for Defendant Frank Luke.

OPINION

LOCKWOOD, J.

This is an original proceeding in quo warranto in this court, instituted by the State of Arizona, on the relation of the Attorney General, against Thad M. Moore and Frank Luke as defendants, claiming that each of them unlawfully usurps, holds, and exercises the office of a tax commissioner of the State of Arizona. Defendants answered the complaint separately, raising many procedural questions by motion and demurrer, and then answered on the merits. The plaintiff demurred to the answers as not stating a defense to the complaint, and the cause was presented before us fully on oral argument, and after the filing of some additional briefs was submitted for our decision.

We consider the procedural questions first. In so doing, while some of these questions are raised by defendant Luke and others by defendant Moore, since they apply equally to both defendants, we shall, for the sake of clarity, assume that each defendant has raised all the points and discuss them in their logical order on this theory. The first is the special appearance for the purpose of objecting to the jurisdiction of the court to entertain the proceeding. This objection is based upon several grounds (a) that the proceeding is one to determine who are entitled to the offices of tax commissioner, and that the complaint is of such a nature that no judgment could possibly be rendered adjudging who are entitled to the offices, if it be held that defendants Luke and Moore are not so entitled; (b) that it is in reality an election contest which requires a recount of the ballots and that the statute provides a different proceeding for that purpose; and (c) that, even assuming the court has the right to take original jurisdiction of the proceeding, there is no reason why this court should exercise that right. It is therefore necessary for us to consider the nature of the action. The subject of quo warranto is dealt with by sections 4405 to 4409, inclusive, Revised Code of 1928. These sections read as follows:

"§ 4405. Attorney general may bring; venue; against whom. An action may be brought by the attorney general in the name of the state upon his relation, upon his own information, or upon the verified complaint of any person, in the supreme court, in cases where that court has jurisdiction, or otherwise in the superior court of the county having jurisdiction, against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within this state, and he shall bring such action whenever he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised."

"§ 4406. By county attorney or by claimant upon leave. An action may be brought by the county attorney, in the name of the state, upon his own information or upon the verified complaint of any person, in the superior court against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within his county and he shall 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."

"§ 4407. Interested party may bring action when officers refuse. If the attorney general or the county attorney shall refuse to bring such action upon the information or at the request of any person claiming such office or franchise, such person may apply to the court for leave to bring such action in his own name, and may so bring the same if leave therefor be granted. Notice of such application shall be given to the attorney general or the county attorney as the case may be."

"§ 4408. Adjudication of office; damages; several claimants. When such action involves the right to an office, the complaint must show the one who is entitled to the office, and the issues made thereon shall be tried, and the judgment rendered shall adjudge who is entitled to the office. If judgment be rendered upon the right of the person so alleged to be entitled, in favor of such person, he may recover the damages which he shall have sustained by reason of the usurpation of the office by the defendant. When several persons claim the same office or franchise, one action may be brought against all such persons to try their rights to such office or franchise."

"§ 4409. Judgment of usurpation; fine. When a defendant is adjudged guilty of usurping or intruding into or unlawfully holding any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from the office, franchise or privilege. The court may also, in its discretion, impose upon the defendant a fine not exceeding two thousand dollars, which fine, when collected, shall be paid into the state treasury."

We think a careful examination and comparison of the sections shows clearly that two classes of actions are provided for thereby, the first being one by the Attorney General in the interest of the state, where it is claimed any person unlawfully holds or exercises a public office. This is not an action to determine which of two rival claimants is entitled to an office, but deals solely with the question of whether the person exercising the office does so unlawfully. Its purpose is to protect the public interest by preventing one who is not entitled to an office from exercising it, and not to establish the private right of some citizen, if there be one, who is legally entitled to the office. It may be commenced by the Attorney General on his own information or upon the verified complaint of any person. And in such an action the judgment to be rendered is that the defendant be excluded from the office, nothing being said about the rights of any claimant thereto. Section 4407, however, contemplates a very different proceeding. It is not based on the protection of a public interest primarily, but on private rights, and in such an action there must be some person claiming the office or franchise which is being unlawfully held. The party so claiming must first make application to the Attorney General, and, if the latter declines to bring the action, the claimant, upon leave of court, may bring it in his own name. The complaint must show the one who is entitled to the office, and the judgment, instead of being one merely excluding the unlawful holder, in addition adjudges who is entitled to the office and grants damages to that person for its usurpation. In the case of State v. Boehringer, 16 Ariz. 48, 141 P. 126, 127, we had occasion to consider the nature of the quo warranto actions provided by our statute. What we said referred to a county office, but obviously the same situation applies when a state office is involved:

"Since statehood the suit to try the title to a county office must be brought by the county attorney of the proper county in the name of the state upon his own information, or upon the verified complaint of any other person presented to the county attorney, informing him of the facts justifying the bringing of the action. In either case the suit must be brought in the name of the state. When the county attorney brings the suit upon his own information, or upon the verified complaint of any other person, the only condition the law makes to his bringing the action is that he, as such officer, must legally believe that a public county office has been usurped, intruded into, or is being unlawfully held. When he so believes, the law makes the bringing of the suit in the name of the state the officer's public duty. Under such circumstances, no leave of the court to bring the suit is required. Such suit is a public action, and the public is the real party in interest. The public prosecutes its suits in the name of the state to redress all public wrongs, civil as well as criminal. If, however, any person is claiming the right to such office, and is deprived thereof by such usurpation or intrusion, he may bring such action in his own name, by first applying for and obtaining the leave of the court to do so. Such right is granted a party by the statute. The evident purpose of the statute is to permit the person, who has suffered a special injury by reason of the usurpation of, or intrusion into the office, to recover the rights personal to him and not suffered by the public. If he has been deprived of an office rightfully belonging to him, the public generally has suffered a wrong thereby, and he who is deprived of the office has suffered a wrong done especially to him individually and independently from the public wrong, and the law furnishes such person with this remedy for a redress of his personal wrong suffered." (Italics ours.)

Upon an examination of the complaint, it is evident that, if paragraph VIII thereof be stricken, the action is unquestionably brought in the public interest under section 4405, supra, and it would not only be unnecessary but improper, to go into the question of whether any other persons than the defendants were entitled to the offices involved. Paragraph VIII of the complaint does allege that H. H. Hotchkiss was appointed by the...