JOHN W. CORBIN County Attorney of Maricopa County, State of Arizona, Petitioner,
G. A. RODGERS, as Judge of the Superior Court of the State of Arizona in and for the County of Maricopa; ELBERT R. THURMAN, Judge of the Superior Court of the State of Arizona in and for the County of Santa Cruz and Herein Acting as Judge of the Superior Court of the State of Arizona in and for the County of Maricopa; and the SUPERIOR COURT of the State of Arizona in and for the County of Maricopa, Respondents
Original proceeding in prohibition. Alternative writ quashed.
Mr. Lin Orme, Jr., Mr. W. C. Fields and Mr. Richard Johnson, Deputies County Attorney, for Petitioner.
Mr. Herman Lewkowitz and Mr. Raymond R. Wein, for Respondent G. A. Rodgers.
[53 Ariz. 36] LOCKWOOD, J.
This is a proceeding by John W. Corbin, as county attorney of Maricopa county, hereinafter called plaintiff, asking for a writ of prohibition against G. A. Rodgers as judge of the Superior Court of Maricopa County, Elbert R. Thurman, as judge of the Superior Court of Santa Cruz County, and the Superior Court of Maricopa County, hereinafter called defendants.
The petition is lengthy and, therefore, we do not set it forth in full. Its allegations, in substance, are as follows: On the 18th day of October, 1938, there was filed in the superior court of Maricopa county a suit wherein J. W. McLaughlin was plaintiff and Roy Merrill as sheriff of Maricopa county and plaintiff herein were defendants. The complaint alleged that the two defendants were about to arrest him, McLaughlin, and all other persons similarly situated, for the violation of article 9, section 4671 et seq., of chapter 104 of the Revised Code of 1928, by conducting a business known as "Baseball and Football Tips," and to seize and confiscate the paraphernalia, stock and cards used by [53 Ariz. 37] plaintiff in said business. It was further alleged that the carrying on of such business was not a violation of article 9, supra, but was an innocent and legitimate amusement business, and that such seizure would cause an irreparable injury of plaintiff's property rights, and a multiplicity of actions. The prayer of the complaint was for an order restraining and enjoining defendants and their deputies and agents from arresting the plaintiff, or seizing his paraphernalia used in the business aforesaid. Immediately upon the filing of said complaint a temporary restraining order was issued in accordance with the prayer of the complaint, without notice to the defendants, and thereafter summons was served on them in the usual manner.
The defendant Corbin, plaintiff in the present action, duly filed a motion to dissolve the restraining order, and also moved that the Honorable G. A RODGERS assign the case to some other judge, which last motion was granted on November 7th by assigning the matter to the Honorable ELBERT R. THURMAN, judge of the Superior Court of Santa Cruz County.
The motion to dissolve the temporary restraining order, and various demurrers to the complaint, were argued before Judge THURMAN, and the matter was by him taken under advisement. Thereafter, and before a determination by Judge THURMAN of the motion and demurrers so submitted, this proceeding was filed, alleging that the restraining order so issued was void because made without jurisdiction, and it was prayed that a writ of prohibition issue from this court against the Honorable G. A. RODGERS and Honorable ELBERT R. THURMAN and the Superior Court of Maricopa County, barring either of them from trying the action filed by McLaughlin, as aforesaid, or from rendering any judgment therein, or enforcing the temporary injunction theretofore issued.
[53 Ariz. 38] An alternative writ of prohibition was issued and served upon Judge RODGERS personally, and upon Judge THURMAN by registered mail. Upon the return day, counsel appeared for Judge RODGERS only, service not yet having been completed on Judge THURMAN, and demurred to the complaint on the ground that since he had assigned the case pending in the superior court to Judge THURMAN before the issuance of the writ of prohibition, no cause of action was
stated by the petition for said writ as against him. This demurrer was sustained, and it was ordered by this court that Judge RODGERS be dismissed as a party defendant in the present proceeding.
It is admitted by plaintiff that after the issuance of the alternative writ of prohibition, and before the time for return thereon, Judge THURMAN had transmitted to the clerk of the Superior Court of Maricopa County, under the provisions of section 3697, Revised Code 1928, his decision upon the demurrers and motions which had been submitted to him previously, said decision being that the demurrers of the defendants were sustained, the temporary injunction previously issued dissolved, and the action dismissed. It was, however, urged by plaintiff that notwithstanding this, the decision had not ripened, and could not ripen, into a judgment until the expiration of ten days, so that, technically speaking, this proceeding was not moot, and further that, since similar situations had arisen frequently in Maricopa county in the past, it was in the interest of the orderly administration of the law and the future guidance of the superior courts and the various law enforcement officers of the state that this court should determine whether or not the superior courts had jurisdiction to restrain public officers from the enforcement of a public penal statute, and if so, under what circumstances.
[53 Ariz. 39] It is generally held, if it appears that a case raises questions which should be decided for the guidance of public officers in the future administration of law, it will not be dismissed as moot, but will be determined upon its merits. Board of Examiners v. Marchese,49 Ariz. 350, 66 P.2d 1035; United States v. Trans-Missouri Freight Assn.,166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007; Southern Pac. Terminal Co. v. Interstate Commerce Com.,219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310; Boise City Irr. & Land Co. v. Clark, (9 Cir.) 131 F. 415. We think this is a proper case for the application of the rule, and therefore proceed to consider the matter on the ...