ROY R. HISLOP, as City Manager of the City of Phoenix, a Municipal Corporation of the State of Arizona, E. C. MOORE, as Chief of Police of Said Municipal Corporation, and W. O. GLICK, as City Magistrate of Said Municipal Corporation, Petitioners,
G. A. RODGERS, as Judge of the Superior Court of Maricopa County, State of Arizona, Respondent
Original proceeding for Writ of Prohibition. Alternative writ made permanent.
Mr. Hess Seaman, City Attorney, and Mr, William C. Fields, Assistant City Attorney, for Petitioners.
Messrs. Baker & Whitney, Mr. Lawrence L. Howe and Mr. Harold E. Whitney, for Respondent.
[54 Ariz. 104] LOCKWOOD, J.
Roy R. Hislop, E. C. Moore and W. O. Glick, as city manager, chief of police and city magistrate, respectively, of the City of Phoenix, a municipal corporation, hereinafter called petitioners, filed an original application in this court for a writ of prohibition against G. A. RODGERS as a judge of the superior court of Maricopa county, hereinafter called respondent. An alternative writ was issued requiring the respondent to show cause why it should not be made permanent, and a response was duly made and the matter submitted to us upon the petition and the response.
As preliminary to a consideration of the case it is necessary that a statement of the material facts shown by the record be made. They are as follows.
[54 Ariz. 105] J. F. Engle and Jack Showell on the 15th day of June, 1939, were engaged in business at 27 South Central Avenue, 213 North Central Avenue, and 32 East Monroe Street, in the City of Phoenix. On that date petitioner E. C. Moore filed his petition in the city court of the City of Phoenix, under the provisions of section 97 of ordinance 99 of said city, alleging that Engle and Showell were maintaining a public nuisance at each of the places above mentioned, and praying for the issuance of an order from the city court abating said nuisance. In pursuance thereof, and without notice to Engle and Showell, or without any opportunity on their part of being heard in opposition to the petition, W. O. Glick, as city magistrate of said court, issued an order abating the alleged nuisance maintained by Engle and Showell at the places aforesaid, and authorizing and directing the chief of police to do such acts as might be reasonably necessary to effect the abatement. Thereafter, and on the same day, in pursuance of said order, the chief of police padlocked the entrances to 27 South Central Avenue and 213 North Central Avenue, and left police guards at the entrance of 32 East Monroe Street, in order to stop the use of said premises for the doing of the acts which it was alleged were public nuisances. Thereafter, and on the 17th day of June, 1939, Engle and Showell filed a complaint in the superior court, setting forth the nature of the business which they alleged they were conducting at the places in question, together with many other matters which we shall refer to as may be necessary, and praying for a temporary restraining order forbidding the petitioners from interfering with the conduct of such business, and for a permanent injunction.
The temporary restraining order was issued, and thereafter petition was made to this court for a writ of prohibition, prohibiting the said G. A. RODGERS, [54 Ariz. 106] or any judge to whom he might transfer the injunction
proceedings, from any further action therein.
It is the position of the petitioners that they are authorized, empowered and directed by law to summarily abate any public nuisance which may be existing within the City of Phoenix; that the business which Engle and Showell were carrying on was a public nuisance, and that under such circumstances, by the express provisions of section 4281, Revised Code of 1928, the superior courts of this state are without jurisdiction to enjoin them in the performance of their duty as officers of the law executing a public statute for the public benefit. This reads, so far as material, as follows:
"In what cases not to be granted. An injunction cannot be granted... to prevent the execution of a public statute, by officers of the law, for the public benefit;..."
Prohibition is a legal remedy which this court is authorized by section 4, article 6 of the Constitution to issue in proper cases. It is defined as
"that process by which a superior court prevents inferior courts, tribunals, officers or persons from usurping or exercising a jurisdiction with which they have not been vested by law." 50 C.J., p. 654, and cases cited.
At common law it was a remedy against encroachment of jurisdiction, and in adopting the remedy our courts have almost universally preserved its original common-law nature, object and function. Generally it may not be invoked where the party has a proper remedy by appeal, nor used for the review or correction of mere errors committed by an inferior tribunal. Bank of Arizona v. Superior Court, 30 Ariz. 72, 245 P. 366.
There are two questions, therefore, for us to consider, (a) had the superior court of Maricopa County [54 Ariz. 107] jurisdiction to proceed in the matter concerning which the writ of prohibition is asked, and (b) even if it did not have jurisdiction, have the petitioners a sufficient remedy by appeal. We will consider these two questions in their order.
As preliminary thereto, we think it well to clarify the situation by calling attention to certain matters which have been discussed at length in respondent's brief, but which are not material to the present case. The question, as we have said, is one of jurisdiction and of jurisdiction as fixed by the statute, and not of whether Engle and Showell were in law and fact maintaining a nuisance, or whether petitioners acted improvidently in abating it as they did. If it were not for section 4281, supra, there can be no doubt that the superior court would have jurisdiction to issue an injunction if it was alleged that property rights were being irreparably injured by the attempt to enforce a statute against one who claimed he did not fall within its inhibition, even though we might hold on the facts the court abused its discretion in issuing it. The books are full of cases in which injunctive relief has been granted under such circumstances. But these cases invariably come from states where no such statute as 4281, supra, exists. Such cases, therefore, have no bearing on the situation which is before us. If that section is valid, then the question of whether an injunction may be issued in a case like the present one does not in any manner depend upon the rules of the common law or cases based thereon, but upon an interpretation of the statute, and that alone. And the question being one of jurisdiction, it is immaterial in the present case whether Engle and Showell were actually maintaining a nuisance or not. The question is not one of their guilt or innocence, but whether the particular remedy which they chose, to wit, that of an injunction forbidding the [54 Ariz. 108] officers to proceed in their conduct, was a remedy within the jurisdiction of the superior court to grant. For this reason, we confine ourselves to the questions of (1) is section 4281, supra, a constitutional exercise of power by the legislature, and (2) did the acts of the officers against whom the temporary restraining order was issued constitute an attempt by officers of the law to execute a public statute for the public benefit. If these two questions must be answered in the affirmative, the superior court was without jurisdiction and a writ of prohibition lies. We consider then whether section 4281, supra, is constitutional or not. This section was taken from section 3423 of the Civil Code of California, and its constitutionality has never been seriously questioned. So far as the particular portion of the section involved herein is concerned, the Supreme Court of that state in Reclamation District No. 1500 v. Superior Court, 171 Cal. 672, 154 P. 845, 849, said:
"... For here, in the subdivision declaring that injunction does not lie to restrain the execution of a legislative act by public officials, we have the enunciation of an old and generally recognized rule of equity jurisdiction.
"his rule, like that of subdivision 7, which was involved in Glide v. Superior Court, supra [147 Cal. 21, 81 P. 225], has its underlying basis in the division of the activities of government into three separate and independent departments, each of which is, in the exercise of its own peculiar functions, free from the control of either of the others. 5 Pom. Eq. Jur. § 327. The power to enjoin officers froe enforcing a statute, even where the statute was claimed to be unconstitutional has been denied in some cases. Kneedler v. Lane, 45 Pa. 238; Thompson v. Com'rs, 2 Abb. Prac. (N.Y.) 248. This court has not carried the doctrine so far. The prohibition against enjoining the execution of statutes has been held to apply only to valid statutes. Wheeler v. Herbert, 152 Cal. 224, 92 P. 353. But, at least as so limited, the rule is generally [54 Ariz. 109] recognized. In So. Or. Co. v. Quine, 70 Or. 63, 139 P. 332, the court said:
"'We think the law is fixed beyond cavil that courts of equity have no power by injunction to restrain a public officer from performing an official act that he is required by valid law to perform. It is not sufficient to clothe the court with jurisdiction to say simply that, unless the court extends its restraining hand, hardships will follow, or irreparable damage will ensue, because the officer delegated to execute such law may act unwisely or injuriously to the party seeking relief. The acts must be such as are without the sanction of a sound law.'
"See, also, So. Min. Co. v. Lowe,105 Ga. 352, 31 S.E. 191; Mendenhall v. Denham,35 Fla. 250, 17 So. 561; Sup. of Greenville v. ...