Owen v. City Court of City of Tucson , 123 Ariz. 267 ( 1979 )

HOLOHAN, Justice,

specially concurring.

Although concurring with the result, I disagree with the rationale used by the court to reach the result.

The court insists on resting its resolution of this case on an “inherent power” theory. I am in total disagreement with that theory of resolution. The city court whose powers are being examined is a creature of statute, whether created by city charter or state statute is of no moment to this discussion. It has only those powers which were given to it by law. To use an “inherent power” theory on a statutory creation is pure fiction.

When a court is created by a constitution there is justification, on occasion, for consideration of the “inherent power” concept. Constitutional courts derive their existence and power from the basic source which creates the total system of government. Their existence may not be disturbed without a change in the constitution. It is often reasoned that such courts must have all the powers necessary to carry out their constitutional function.

Article VI § 1 of the Arizona Constitution names the only constitutional courts of this state. Any other court is created by law, and it may be terminated by law. Section 32 of Article VI of the state constitution provides that the jurisdiction, powers and duties of courts inferior to the superior court, and that covers the city court, are to be as provided by law.

It is inconceivable to me how the majority can conjure up inherent powers for a nonconstitutional court in the face of the specific language of the Arizona Constitution which requires that the powers of such courts be as provided by law.

My concurrence in the result is due to my conclusion that the city court has been given the power by statute to punish for contempt. A.R.S. § 12-864 provides:

“Contempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, and contempts committed by failure to obey a lawful writ, process, order, judgment of the court, and all other con-tempts not specifically embraced within this article may be punished in conformity to the practice and usage of the common law.”

It is interesting and significant that certain statutes on contempt apply only to the superior court. See A.R.S. §§ 12-861 and 12-862.

There is no specific reference to the superior court in A.R.S. § 12-864. In my judgment this difference in removing the specific reference to the superior court and providing the general term “court” is significant, and I believe that the statute was meant to have general application to all courts.

Based on the authority of A.R.S. § 12-864 I concur in the disposition of the case made by the majority of this court.