Van Dyke v. Superior Court of Gila County

• Decision Date: 30 December 1922
• Docket Number: Civil 2086
• Citation: 24 Ariz. 508,211 P. 576
• Parties: CLEVE W. VAN DYKE, WALTER J. SCOTT and THE SOUTHERN ARIZONA PUBLISHING COMPANY, a Corporation, Relators, v. THE SUPERIOR COURT OF GILA COUNTY, ARIZONA, and J. E. CROSBY, Judge of the Superior Court of Navajo County, Arizona, Acting as Judge of the Superior Court of Gila County, Arizona, Respondents
• Court: Arizona Supreme Court

211 P. 576

24 Ariz. 508

CLEVE W. VAN DYKE, WALTER J. SCOTT and THE SOUTHERN ARIZONA PUBLISHING COMPANY, a Corporation, Relators, v. THE SUPERIOR COURT OF GILA COUNTY, ARIZONA, and J. E. CROSBY, Judge of the Superior Court of Navajo County, Arizona, Acting as Judge of the Superior Court of Gila County, Arizona, Respondents

Civil No. 2086

Supreme Court of Arizona

December 30, 1922

Original proceeding for Writ of Prohibition. Alternative writ granted; upon hearing to determine whether writ should be made absolute, modified relief granted.

Messrs Jacobs & Partridge, Mr. Charles L. Rawlins, and Mr. D. L Cunningham, for Relators.

Mr Clifton Mathews, for Respondents.

OPINION

FLANIGAN, J.

This proceeding originated in this court upon the petition of the relators, Van Dyke, Scott and the Southern Arizona Publishing Company, for the issuance of an alternative writ of prohibition directed to the respondents, the superior court of Gila county and J. E. CROSBY, Judge of the superior court of Navajo county, acting as judge of the superior court of Gila county, praying that the said respondents be prohibited from taking further action in certain contempt proceedings then pending in said superior court against the relators.

Due to different understandings concerning the notice to be given of the hearing on the application for the alternative writ, respondents did not attend such hearing, and the alternative writ was issued as prayed for, and the respondents were ordered to show cause before this court why the writ should not be made absolute. Pursuant to this order the respondents appeared, and demurred to the petition upon the ground that the facts alleged therein are not sufficient to warrant the issuance of the writ, and by answer admitted the truth of the substantial averments set forth in the petition. From the allegations of the petition we state so much of the facts as are necessary to present the questions involved.

On April 27, 1922, George M. Elledge, on behalf of himself and other taxpayers and voters of the town of Miami, Gila county, Arizona, filed in the superior court of that county his verified complaint, as plaintiff, against L. D. Van Dyke, mayor of the town of Miami, George R. Raynolds, clerk of said town, George F. Senner, town attorney thereof, Southern Arizona Publishing Company, a corporation, Roy Kelley, King C. Light, James Elzie Owen, M. S. Quinleven, Al Schatzkey, Arthur Turner, L. D. Van Dyke, and the town of Miami, defendants, alleging in said complaint that a certain primary election held in said town on April 5, 1922, was null and void and ineffectual for any purpose whatsoever, because of certain fraudulent and unlawful acts committed by said defendants, and especially because of the fraudulent and unlawful manner in which said pretended primary election was called and held, all of which was fully described in the complaint. The complaint prayed for an order requiring the defendants to appear and show cause why said primary election should not be declared null and void and why a permanent injunction and restraining order should not issue to enjoin defendants from taking any step to issue the ballots to be used at an election within said town called for May 22, 1922, on which ballots should be printed, written or in any way set forth, the names of the defendants Kelley, Light, Quinleven, Schatzkey, Turner, Owen and Van Dyke; also from alleging or holding out to any voter, or voters, any assertion that said defendants, or any of them, had been regularly or lawfully nominated as candidates of the Democratic, or any other party, for officers of the town council of the town of Miami.

Upon the filing of the complaint an order was issued as prayed, requiring the defendants to show cause on May 9th why the permanent injunction and restraining order should not issue, and this order was served on the defendants. Thereafter, on May 8th, the defendants made affidavit in accordance with paragraph 500, Revised Statutes of Arizona of 1913, that they had reason to believe, and did believe, that on account of the bias and prejudice of the presiding Judge, Hon. G. W. SHUTE, they could not obtain a fair and impartial trial of said cause before him.

Accordingly, on May 9th, Judge SHUTE requested Judge J. E. CROSBY, Judge of the superior court of Navajo county, to preside at the trial of said cause and to hear all matters involved therein, and the cause was thereupon continued until May 10th to enable Judge CROSBY to comply with such request. On that day Judge CROSBY presided over the superior court of Gila county at the trial of the cause, and thereafter heard all matters subsequently presented therein. On May 10th the defendants demurred and answered to the complaint. On May 11th the demurrer was overruled, and the cause tried, argued and submitted, and by the judge taken under advisement. On May 12th, in the forenoon, Judge CROSBY announced his opinion that the plaintiff Elledge was entitled to judgment declaring and adjudging the actions of the defendants Van Dyke, Quinleven, Turner and Collins, as the mayor and common council of the town of Miami, in calling the primary election of April 5th, to be fraudulent and ineffectual in so far as the defendants Van Dyke, Turner and Quinleven were concerned, and that said defendants were not entitled to any rights under said primary election, nor to have their names set forth on the official ballots for the town election to be held on May 22d, and enjoined and restrained all the defendants accordingly from posting, printing, publishing, circulating or furnishing to the voters any official ballot or ballots for said election on which were printed or written the names of said defendants as the candidates of the Democratic or any other party. The defendants thereupon filed motion for a new trial, which was presented, argued and taken under advisement. At 9 o'clock in the evening of that day a formal judgment, in accordance with the announcement of the court, was signed, and at the same time the motion for new trial was denied. On May 13th the defendants gave notice of appeal to this court from such judgment, but have never perfected such appeal by giving the undertaking required by law.

It further appears that the relator the Southern Arizona Publishing Company at all said times owned and published in the town of Miami a certain newspaper known as the "Daily Arizona Silver Belt," and that the paper circulated generally throughout the state, and more especially in Gila county and in the town of Miami and city of Globe, Globe being the county seat where the courthouse in which the court is held is situated; that Cleve W. Van Dyke is the owner of all the capital stock of said company, and exercises full and absolute control and management of said newspaper; that respondent Scott at all said times was the editor of said newspaper.

On May 9th, while the cause was pending, there was published in said newspaper an article entitled "New Uses of Government by Injunction"; on May 10th, an article entitled "'Cootie' Officials for Miami Would be Like Putting Enemy Soldiers on Picket Duty for a Sleeping Army"; on May 12th, before the signing of the judgment and the denial of the motion for new trial, two articles, entitled as follows: "Court Wants Names of Kelley, Schatzkey, Light and Owen on Ballot, Van Dyke, Turner and Quinleven Off," and "Stand Firm! There must be No Intellectual Bisbee Deportation of Miami Democracy at the Hands of the Copper Companies"; on May 13th an article entitled "Void or Valid," and another "Retrogressional."

The facts we have just summarized are set forth in an affidavit of said Elledge filed in said court, and entitled "In the Matter of the Proceedings against Cleve W. Van Dyke, Walter J. Scott and the Southern Arizona Publishing Company, a Corporation, for Contempt of Court," and the affidavit concludes as follows:

"That each and all of said articles were published of and concerning this court and the judges thereof, and of and concerning said cause No. 4185-B (the docket number of the above-entitled case in the superior court of Gila county) and of and concerning the parties thereto and their attorneys; that the publication of said articles in said newspaper as aforesaid was calculated, and was intended by the said Cleve W. Van Dyke, the said Walter J. Scott, and the said the Southern Arizona Publishing Company, to hinder, obstruct, embarrass, and prevent the due administration of justice in said cause; that in procuring and causing said articles to be published and in consenting to, conniving at, and approving the publication of said articles in said newspaper, as aforesaid, the said Cleve W. Van Dyke, the said Walter J. Scott and the said the Southern Arizona Publishing Company, and each of them, have been and are guilty of a contempt of this court; and that this affiant now moves and prays this court to issue its order requiring the said Cleve W. Van Dyke, the said Walter J. Scott, and the said the Southern Arizona Publishing Company, and each of them, to show cause upon a day certain why they and each of them should not be punished for said contempt."

Upon the filing of this affidavit, which set forth the publications mentioned, appended thereto in haec verba as exhibits, the court on June 7th issued an order directed to the alleged contemners, Van Dyke, Scott and the Southern Arizona Publishing Company, which required them to appear before the court on June 9th, then and there to show cause why they, and each of them, should not be punished for contempt. The order was thereupon served upon the relator company and Scott, and later upon Van Dyke. In answer to the order to show cause the relators Scott and the company presented and...