State v. Phelps, 5062

• Decision Date: 17 May 1948
• Docket Number: 5062
• Citation: 67 Ariz. 215,193 P.2d 921
• Parties: STATE v. PHELPS
• Court: Arizona Supreme Court

193 P.2d 921

67 Ariz. 215

STATE v. PHELPS

No. 5062

Supreme Court of Arizona

May 17, 1948

Original proceeding in mandamus by the state against M. T Phelps, judge of the Superior Court in and for the county of Maricopa, to direct respondent to proceed with the trial of a specified criminal cause wherein an alternative writ was issued.

Alternative writ quashed.

Jack Choisser, City Atty., and Paul H. Primock, Asst. City Atty. both of Phoenix, for petitioner.

Morgan & Locklear, of Phoenix, for respondent.

LaPrade Justice. Stanford, C. J., and Udall, J., concurring.

OPINION

LaPrade, Justice.

On ex parte petition of the State of Arizona an alternative writ of mandamus was issued out of this court directing the respondent, the Honorable M. T. Phelps, as Judge of the Superior Court of Maricopa County, to forthwith proceed with the trial in criminal cause No. 19281 in the Superior Court of Maricopa County, wherein the state was plaintiff and G. C. Findley was defendant, or show cause why he should not do so.

The petition for the writ disclosed that Findley had been adjudged guilty in the police court of the City of Phoenix of violating section 68a, Ordinance 2570 of the General Ordinances of the city, relating to failure to yield the right of way to a motor vehicle which had already entered a street intersection.

The defendant appealed the judgment of conviction to the Superior Court and thereafter filed a motion to quash the complaint upon the ground that the State of Arizona had legislated on the same subject in section 66-112, A.C.A.1939, as a matter of state-wide policy and concern, to the exclusion of the City of Phoenix, and that therefore the ordinance was void. The court heard oral arguments on the subject matter and granted the motion to quash, discharged the defendant, and exonerated his bond. Section 44-2604, A.C.A.1939.

Petitioner contends that the court erroneously held that the city ordinance was void as a matter of law, and in the petition says that the court "has refused and still refuses to permit the trial of the defendant, * * * on the offense charged in the complaint of the City Court * * *." It is the position of the state that the trial court by sustaining the motion to quash in effect erroneously decided that it had no jurisdiction and that mandamus is the only remedy available to it.

By demurrer the respondent has challenged the sufficiency of both the petition and the writ on several grounds, among them (1) that neither the petition nor the writ states facts showing petitioner entitled to the writ; (2) that it appears from the petition and the writ that in quashing the writ respondent was acting within his jurisdiction and exercising the judicial discretion vested in him as a superior court judge; and (3) that the judgment entered may not be contested or reviewed in a mandamus proceeding.

We briefly allude to several controlling rules that have long since been announced after careful and extensive analysis, to wit: Mandamus will issue to compel public officers, including judges of inferior courts, to perform an act which the law specifically enjoins as a duty arising out of the office. Section 28-201, A.C.A.1939; Territory v. Board of Supervisors, 2 Ariz. 248, 12 P. 730; Graham v. Moore, 56 Ariz. 106, 105 P.2d 962; Dey v. McAlister, 19 Ariz. 306, 169 P. 458; State v. Valdez, 48 Ariz. 145, 59 P.2d 328. Mandamus is available where a court refuses to exercise jurisdiction rightfully possessed. New York Life Ins. Co. v. Phelps, 42 Ariz. 222, 23 P.2d 937; Ferris Extraordinary Legal Remedies, section 300, page 409. The judge can be compelled to act but not controlled. "If the act sought for be judicial or discretionary in its character, no court, by its writ of mandate, can command what this action shall be, much less can it command how and what the said action shall be after he or it has already fully acted upon the matter, no matter how erroneously." Osborn v. Clark, 1 Ariz. 397, 25 P. 797; Dey v. McAlister, supra; Prina v. Board of County Supervisors, 16 Ariz. 252, 143 P. 567; Maricopa County Municipal Water Conservation Dist. No. 1 v. La Prade, 45 Ariz. 61, 40 P.2d 94.

The state's right to appeal is confined to cases prosecuted by indictment or information, and it cannot appeal from an order sustaining a demurrer to a complaint. Section 44-2508, A.C.A.1939; State v. Moore, 48 Ariz. 16, 58 P.2d 752. Counsel for petitioner earnestly contend that since the state cannot secure a review by way of appeal the interests of the state will be irreparably damaged unless the writ is issued directing the judge to proceed with the trial. They insist that the dismissal of the appeal was not a judicial act within the jurisdiction of the superior court, citing Wheeling Bridge & T. Ry. Co. v. Paull, 39 W.V. 142, 19 S.E. 551; Golden Gate Tile Co. v. Superior Court, 159 Cal. 474, 114 P. 978 and H. L. Griffen Co. v. Howell, 38 Utah 357, 113 P. 326, 328. In this latter case it was said "* * * A court having conferred upon it jurisdiction may not divest itself of jurisdiction not depending upon facts, by an erroneous decision on matters of law that it has no jurisdiction. * * *"

In Floyd v. Sixth Judicial Dist. Court, 36 Nev. 349, 135 P. 922, 927, 4 A.L.R. 646, it was held that an inferior court which erroneously refuses to entertain jurisdiction on a matter preliminary to a hearing on the merits may be required to proceed by mandamus. This case involved an appeal from a money judgment secured in the justice court. The appellant deposited cash in lieu of an undertaking in the amount of the judgment and costs. A motion was made and granted to dismiss the appeal upon the ground that no undertaking had been filed for the payment of costs on appeal. The court analyzed its statutes relating to appeals, undertaking, and cash deposits in lieu of bond, determined that the cash deposit was equivalent to an undertaking, and concluded that the court had erroneously dismissed the appeal. A specially concurring opinion, briefly summarizing the majority opinion and reflecting the reasoning of the court, reads as follows: "Without conflict of authority, it is settled that when an inferior court erroneously determines that it has jurisdiction, its judgments and orders will be set aside by the higher courts. What reason exists for saying that if a court erroneously decides that it has not jurisdiction when it has, and dismisses an appeal for that reason, such decision cannot be disturbed; in other words, for saying that the converse of the rule has no application? The reason given is that the appellate court has jurisdiction of the case for all purposes, and therefore may dispose of the case by an order of dismissal if in its judgment it is without jurisdiction. The fallacy of this reasoning, I am convinced, lies in the assumption that the appellate court has jurisdiction for all purposes when the Constitution and statute prescribe that if an appeal is properly perfected it has jurisdiction only to determine the questions of law or fact involved in the pleadings or record on appeal. Hence justification exists for making no distinction between a mere refusal to proceed with the trial of a case for an erroneous assumption of want of jurisdiction and the dismissal of a case for the same erroneous reason. In other words, a court is without power to invest itself with a jurisdiction it does not possess, or to divest itself of a jurisdiction it does possess."

In Clayton v. State, 38 Ariz. 135, 297 P. 1037, the defendant was convicted first in the police court of violating an ordinance of the City of Phoenix making it an offense to drive a motor vehicle upon the streets of Phoenix while under the influence of intoxicating liquor. The judgment of conviction was appealed to the Superior Court where he was again adjudged to be guilty. Upon appeal to the Supreme Court it was held that the ordinance was invalid and that the court was without jurisdiction of the defendant or the subject matter. Relying upon the authorities cited counsel for petitioner reason that the court was without authority to determine that it had no jurisdiction over the subject matter; that the city ordinance is not invalid; and that the court could not divest itself of the jurisdiction that it possesses. It occurs to us that this reasoning is not warranted. The first duty of any court is to determine whether it has jurisdiction in the premises, and in so determining it is acting judiciously. In Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, 146 P. 203, 206, L.R.A.1916E, 303, this court said: "The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry; not whether its conclusion in the course of it is right or wrong. (Citing cases.)"

In this Tube City case our court quoted with approval from Manley v. Park, 62 Kan. 553, 64 P. 28, as follows "'"Jurisdiction over the subject-matter" is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one...