Original proceeding in prohibition. Alternative writ made permanent.
Mr. I. A. Jennings, City Attorney, Mr. Hess Seaman and Mr. Richard F. Harless, his Assistants, for Petitioner.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley and Mr. J. M. Johnson, his Assistants, for Respondents.
Mr. E. O. Phlegar, Messrs. Cunningham & Carson, Mr. Harry O. Juliani and Mr. Fred A. Weller, Amici Curiae.
[52 Ariz. 228] LOCKWOOD, J.
This is an application by the city of Phoenix, a municipal corporation, hereinafter called plaintiff, against Wilson T. Wright, Amos A. Betts, and William M. Cox, as the corporation commission of the state of Arizona, Hereinafter called defendants, for a writ of prohibition, commanding them to desist from attempting to assume jurisdiction over plaintiff and its municipally owned and operated water system, in the distribution of water to consumers for compensation outside of its corporate limits. The [52 Ariz. 229] alternative writ was issued, and defendants cited to appear and show cause why it should not be made permanent. Defendants answered urging (a) that a writ of prohibition by this court did not lie in a case of the present character, and (b) that defendants had full jurisdiction over plaintiff in respect to the matter in controversy. The matter is now before us on the question of whether the alternative writ should be made permanent.
We consider first the question of whether prohibition lies in this kind of a case. In the case of Van Dyke v. Superior Court, 24 Ariz. 508, 211 P. 576, we quoted approvingly from the language of the Supreme Court of the United States in the case of In re Rice, 155 U.S. 396, 402, 15 S.Ct. 149, 39 L.Ed. 198, 201, as follows (24 Ariz., p. 519):
"'Where it appears that a court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset, and has no other remedy, is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary.'"
And the same rule was previously upheld in Crowned King Min. Co. v. District Court, 7 Ariz. 263, 64 P. 439, and numerous other cases.
It appears from the petition that the only question raised thereby is one of jurisdiction, and that a determination of this case is of great importance both to plaintiff and all other municipalities of the state of Arizona which are operating municipally owned water plants outside of
their city limits. Since this form [52 Ariz. 230] of proceeding is the one where the question raised can be finally settled more promptly than in any other manner, we think that even if plaintiff has a remedy by appeal or otherwise, which would ultimately determine the same issue, the writ should be granted unless there appear some affirmative reason why it cannot be. It is urged that this court has no jurisdiction to issue an original writ of prohibition by reason of the provisions of section 720, Rev. Code 1928, which reads, in part, as follows:
"... Except as herein provided, no court of this state shall have jurisdiction to enjoin, restrain, suspend, delay or review any order or decision of the commission, or to enjoin, restrain or interfere with the commission in the performance of its official duties, and the rules, regulations, orders or decrees fixed by the commission shall remain in force pending the decision of the courts; provided, that the writ of mandamus shall lie from the supreme court to the commission in all proper cases."
We have previously held in the case of Johnson v. Betts,21 Ariz. 365, 188 P. 271, that section 720, supra, has reference only to decisions of the commission affecting public service corporations, and in the case of Menderson v. City of Phoenix et al.,51 Ariz. 280, 76 P.2d 321, we held specifically that a municipal corporation while engaged in any of the occupations referred to in section 2 of article 15 of the Constitution of Arizona is not a public service corporation ...