Original proceeding in mandamus by the state against M. T. Phelps, judge of the Superior Court in and for the county of Maricopa, to direct respondent to proceed with the trial of a specified criminal cause wherein an alternative writ was issued.
Alternative writ quashed.
Jack Choisser, City Atty., and Paul H. Primock, Asst. City Atty., both of Phoenix, for petitioner.
Morgan & Locklear, of Phoenix, for respondent.
LaPrade, Justice. Stanford, C. J., and Udall, J., concurring.
[67 Ariz. 217] On ex parte petition of the State of Arizona an alternative writ of mandamus was issued out of this court directing the respondent, the Honorable M. T. Phelps, as Judge of the Superior Court of Maricopa County, to forthwith proceed with the trial in criminal cause No. 19281 in the Superior Court of Maricopa County, wherein the state was plaintiff and G. C. Findley was defendant, or show cause why he should not do so.
The petition for the writ disclosed that Findley had been adjudged guilty in the police court of the City of Phoenix of violating [67 Ariz. 218] section 68a, Ordinance 2570 of the General Ordinances of the city, relating to failure to yield the right of way to a motor vehicle which had already entered a street intersection.
The defendant appealed the judgment of conviction to the Superior Court and thereafter filed a motion to quash the complaint upon the ground that the State of Arizona had legislated on the same subject in section 66-112, A.C.A.1939, as a matter of state-wide policy and concern, to the exclusion of the City of Phoenix, and that therefore the ordinance was void. The court heard oral arguments on the subject matter and granted the motion to quash, discharged the defendant, and exonerated his bond. Section 44-2604, A.C.A.1939.
Petitioner contends that the court erroneously held that the city ordinance was void as a matter of law, and in the petition says that the court "has refused and still refuses to permit the trial of the defendant, * * * on the offense charged in the complaint of the City Court * * *." It is the position of the state that the trial court by sustaining the motion to quash in effect erroneously decided that it had no jurisdiction and that mandamus is the only remedy available to it.
By demurrer the respondent has challenged the sufficiency of both the petition and the writ on several grounds, among them (1) that neither the petition nor the writ states facts showing petitioner entitled to the writ; (2) that it appears from the petition and the writ that in quashing the writ respondent was acting within his jurisdiction and exercising the judicial discretion vested in him as a superior court judge; and (3) that the judgment entered may not be contested or reviewed in a mandamus proceeding.
We briefly allude to several controlling rules that have long since been announced after careful and extensive analysis, to wit: Mandamus will issue to compel public officers, including judges of inferior courts, to perform an act which the law specifically enjoins as a duty arising out of the office. Section 28-201, A.C.A.1939; Territory v. Board of Supervisors,2 Ariz. 248, 12 P. 730; Graham v. Moore,56 Ariz. 106, 105 P.2d 962; Dey v. McAlister,19 Ariz. 306, 169 P. 458; State v. Valdez,48 Ariz. 145, 59 P.2d 328. Mandamus is available where a court refuses to exercise jurisdiction rightfully possessed. New York Life Ins. Co. v. Phelps,42 Ariz. 222, 23 P.2d 937; Ferris Extraordinary Legal Remedies, section 300, page 409. The judge can be compelled to act but not controlled. "If the act sought for be judicial or discretionary in its character, no court, by its writ of mandate, can command what this action shall be, much less can it command how and what the said action shall be after he or it ...