STATE ex rel. LLOYD J. ANDREWS, County Attorney of Maricopa County, State of Arizona; LLOYD J. ANDREWS, County Attorney of Maricopa County, State of Arizona; and J. R. McFADDEN, Sheriff of Maricopa County, State of Arizona, Petitioners,
THE SUPERIOR COURT OF THE COUNTY OF MARICOPA, STATE OF ARIZONA, and Honorable M. T. PHELPS, One of the Judges of Said Court, Respondents
Original proceeding on Writ of Certiorari. Order of Superior Court quashed.
Mr. Lloyd J. Andrews, County Attorney, and Mr. Robert McMurchie, Assistant County Attorney, for Petitioners.
Mr. Paul W. Schenck, Mr. Herman Lewkowitz and Mr. J. B. Zaversack, for Respondents.
[39 Ariz. 243] LOCKWOOD, J.
On the twentieth day of October, 1931, Lloyd J. Andrews, being then the duly elected, qualified and acting county attorney of Maricopa county, filed in the justice court of the East Phoenix precinct of said county two criminal complaints, in each of which one Winnie Ruth Judd was charged with the crime of murder. On the third day of November she was arraigned in said precinct upon the charges contained in the complaints, and the justice of the peace set the preliminary examination upon said charges to be heard before him in said precinct on November 9th. The accused was then in the custody of J. R. McFadden, the sheriff of Maricopa county, and he had some time previous to the filing of the complaint taken into his possession certain premises known as 2929 North Second Street, in the city of Phoenix, together with the furniture, fixtures and contents thereof, for the reason that it was upon these premises that the murders of which the said Judd was accused were believed to have been committed, and in the opinion of both the county attorney and the sheriff material evidence in said cases would have been destroyed or mutilated had the sheriff not so acted.
On or about the twenty-ninth day of October Paul W. Schenck, Herman Lewkowitz and J. B. Zaversack were employed by the accused as her counsel, and on [39 Ariz. 244] the fourth day of November they requested the county attorney and sheriff for permission to inspect and examine the premises with a view to the preparation of her defense. The requested permission was refused, and immediately thereafter counsel filed in the superior court of Maricopa county a petition entitled "In the Matter of the State of Arizona against Winnie Ruth Judd," requesting that the court issue an order authorizing any and all of the attorneys for accused to view the premises in question at all reasonable times and hours, whereupon the court, without notice to either the sheriff or the county attorney, made the following order:
"Comes now the Petitioner Defendant by her counsel, H. Lewkowitz and J. B. Zaversack. And thereupon it is ordered that J. R. McFadden, sheriff and/or any of his deputies or agents, and Lloyd J. Andrews, County Attorney of Maricopa County, Arizona, and/or any of his deputies, permit any or all of the attorneys for the petitioner defendant, without restriction on their part, to view and inspect the premises known as 2929 North Second Street, Phoenix, Arizona, and the premises known as 1130 East Brill Street, Apartment F, Phoenix, Arizona."
At the time the petition was filed in the superior court and at the time such order was issued, there was no proceeding whatever pending in said superior court in which the state of Arizona and Winnie Ruth Judd were parties. Immediately upon being served with such order, the county attorney and sheriff appeared for the sole purpose of moving the court to vacate and set aside the order on the ground that it was without jurisdiction to make any order whatever in the premises. The motion was by the court denied, and this petition for a writ of certiorari was filed.
The above facts are not in dispute, and the question before us is one of law only. The writ of certiorari, [39 Ariz. 245] of course, issues only for the purpose of testing the existence of jurisdiction, and not to determine whether existing jurisdiction was used erroneously. Section 4391, Rev. Code 1928. It is the contention of petitioners that the superior court was wholly without jurisdiction to make any order whatever in the premises. It is the position of respondents that the court had such jurisdiction for three reasons: (1) That jurisdiction
to act under circumstances such as those above set forth is affirmatively conferred upon the court by the Constitution and laws of the state of Arizona; (2) that such jurisdiction exists under the inherent powers of the court to do justice, regardless of any constitutional or statutory authority; and (3) because petitioners were both officers of the superior court, and as such amenable under the circumstances set forth herein to any order of the court in regard to the matter. We will consider these contentions in their order.
The constitutional jurisdiction of the superior court is based on section 6, article 6, Constitution of Arizona. This section, so far as it could in any manner be contended to confer jurisdiction under the circumstances above described, reads as follows:
"The superior court shall have original jurisdiction . . . in all criminal cases amounting to felony . . . and for such special cases and proceedings as are not otherwise provided for. The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction ...