[81 Ariz. 75] Robert Morrison, Atty. Gen., James H. Green, Jr., and Gordon G. Aldrich, Sp. Asst. to the Atty. Gen., for petitioners.
Frank E. Murphy, Jr., and Anthony D. Terry, Tucson, for respondents.
This is an original proceeding for a writ of prohibition to enjoin further proceedings in the superior court of Maricopa County wherein plaintiff, the Reverend Joseph B. Murphy, in a mandamus action, sought to compel the Arizona State Highway Commission to establish a school zone and crosswalk at the intersection of Ajo Way and 12th Avenue abutting the school grounds at St. John's Catholic Church and School near the city of Tucson, Arizona.
Some time prior to October 3, 1955, Reverend Murphy made a formal request in writing directed to the Arizona State Highway Commission requesting that a school zone crosswalk be established at said intersection. On October 3, 1955, the commission adopted a motion, the effect of which was to deny the application for said
crosswalk. Reverend Murphy as plaintiff then instituted an action in the superior court of Pima County asking for an alternative writ of mandamus commanding the Highway Commission to establish a school crossing at the above intersection.
The complaint alleged in the alternative that either the refusal of the commission to grant the school crossing zone at the [81 Ariz. 76] point plaintiff desired was an abuse of the statutory duty of the defendants, or that the manner in which such school zone was denied plaintiff was arbitrary and capricious and 'beyond the proper and legal discretion of defendants.' The particular fact complained of was the refusal of the Highway Commission to establish a school zone immediately under the traffic signals at said intersection. The Highway Commission was willing to install a school crossing along Ajo Way 600 feet distant from the intersection, abutting the St. John's Catholic Church school grounds, which was rejected by plaintiff.
An alternative writ of mandamus was issued by the superior court of Pima County, commanding the Highway Commission to establish a school crossing zone in accordance with plaintiff's application or in the alternative to show cause why such action should not be taken. The commission (petitioners here) then obtained a change of venue from the superior court of Pima County to the superior court of Maricopa County. Thereafter the commission moved to quash the writ of mandamus for lack of the court's jurisdiction to grant the relief prayed for in Reverend Murphy's application for said writ. This motion was denied, whereupon the commission moved for summary judgment on the contention that the court was without jurisdiction to command these particular acts of the State Highway Commission, the performance of which, by virtue of section 28-797, A.R.S.1956, is made discretionary with the commission. Upon a denial of this motion, the commission obtained the present alternative with of prohibition from this court, enjoining further proceedings in the superior court.
In order to determine whether prohibition will lie we first must look to the statutes and the rules and regulations adopted by the State Highway Commission to determine whether, as a matter of law, the respondent superior court had jurisdiction to entertain the mandamus suit. That is, whether mandamus was available to plaintiff to command the installation by the Arizona Highway Commission of a school zone in a specific location under the provisions of section 28-797, supra. If it is, the writ of prohibition issued by this court must be quashed. If not, it will be made peremptory.
This section provides:
'A. In front of each school building, or school grounds abutting thereon, the commission by and with the advice of the school board or superintendent of schools, is empowered to mark or cause to be marked by the department, or local authorities, a single crosswalk where children shall be required to cross the highway.'
Section 28-642, A.R.S.1956, provides that:
'A. The commission shall place and maintain such traffic-control devices, [81 Ariz. 77] conforming to its manual and specifications, upon all state highways as it deems necessary to indicate and to carry out the provisions of this chapter or to regulate, warn or guide traffic.
'B. No local authority shall place or maintain any traffic-control device upon any highway under the jurisdiction of the commission ...