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Merrill v. Phelps

Supreme Court of Arizona

November 14, 1938

ROY MERRILL, as Sheriff of Maricopa County, Arizona, and C. W. PETERSON, GEORGE FRYE and JOHN A. FOOTE, as Members of the Board of Supervisors of Maricopa County, Arizona, Appellants,
v.
M. T. PHELPS, as Judge of the Superior Court of Maricopa County, Arizona, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Wm G. Hall, Judge. Judgment reversed and cause remanded with instructions.

Mr. John W. Corbin, County Attorney of Maricopa County, and Mr. Lin H. Orme, his Deputy, for Appellants.

Messrs. Baker & Whitney, Mr. Lawrence L. Howe, Mr. Arthur T. LaPrade, Mr. Herman Lewkowitz, Mr. A. S. Gibbons, Mr. Henry Miller, Messrs. Snell, Strouss & Salmon, Messrs. Armstrong, Kramer, Morrison, Roche & Duffy, Mr. James E. Nelson, Messrs. Cunningham & Carson, Mr. Henderson Stockton, Messrs. Clark & Clark, Mr. V. L. Hash, Mr. W. F. Dains, and Mr. David P. Jones and Mr. Harold E. Whitney (of Counsel), for Appellee.

OPINION

Page 75

[52 Ariz. 528] LOCKWOOD, J.

This is an action by M. T. Phelps, as judge of the Superior Court of Maricopa County, hereinafter called plaintiff, against Roy Merrill as sheriff of said county, and C. W. Peterson, George Frye and John A. Foote, as members of the board of supervisors thereof, hereinafter called defendants, seeking a declaratory judgment that plaintiff has a right to have two court bailiffs or attendants upon Division No. 1, of the Superior Court of Maricopa County, therein presided over by plaintiff, with the right to appoint and control them. A judgment was rendered in favor of plaintiff in all respects, and from such judgment defendants have appealed.

There are two questions raised by the appeal, the first being whether or not a declaratory judgment may be rendered in a case of this nature, and the second whether the judgment which was rendered in the lower court is in accordance with the law. The action is based upon sections 4385 to 4390,

Page 76

the material portions, so far as apply to this action, being as follows:

"§ 4385. Declaratory judgments authorized; form and effect. Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed, and the action shall not be open to the objection that a declaratory judgment only is prayed for. The judgment may be either affirmative or negative, and has the force and effect of [52 Ariz. 529] a final judgment, subject to appeal as in other actions."

"§ 4386. Person interested or affected may have declaration. Any person interested... or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder. ..."

"§ 4387. Person beneficially interested may have declaration; enumeration not a limitation....

"The enumeration in this and the preceding sections does not limit or restrict the exercise of the general powers conferred, in any action where declaratory relief is sought, in which a judgment will terminate the controversy or remove an uncertainty."

We think it is clear that the action does lie. The plaintiff claims that he, in his official capacity, has the right to perform certain acts, and that these rights are affected by certain statutes. It also appears from the pleadings that the defendant sheriff claims the same right and that there is a decided controversy and uncertainty as to which official is correct in his contention. We think that a declaratory judgment is the simplest and the best way of determining such right, and that it is fully within the intent and the language of the statute. This being the case, it is necessary for us to ascertain in whom the right to determine the number of bailiffs or court attendants, and to appoint them and control their actions, inheres, the judge of the superior court or the sheriff of the county.

Under the common law of England, the judges did not sit solely in certain particular territorial areas. Their jurisdiction extended to all parts of the country, and they held court part of the time at Westminster, and part of the time in such places as the [52 Ariz. 530] business of the nation required. When they exercised the latter function, it was the custom from time immemorial that the sheriff of the county in which the court was to be held, who was the chief administrative officer of that county, met the judge as he entered the county and from that time on furnished him all attendants and other conveniences necessary to carry on the business of the court, obeying its orders in all respects as to what was done. As time went on, however, the office of sheriff, which originally was a very important one in connection with the administration of justice, became more or less of an honorary and ornamental position, and the court gradually took over many of the functions theretofore exercised by the sheriff. Murfree on Sheriffs, sec. 427. The common law of England, so far as applicable to our circumstances and conditions, is the law of Arizona. Hageman v. Vanderdoes,15 Ariz. 312, 138 P. 1053, L.R.A. 1915A 491, Ann. Cas. 1915D 1197; Masury & Son v. Bisbee Lumber Co.,49 Ariz. 443, 68 P.2d 679; sec. 3043, Rev. Code 1928. The power exercised by the sheriff under the ...


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