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Duncan v. Mack

Supreme Court of Arizona

February 16, 1942

JOHN A. DUNCAN, Superintendent of Liquor Licenses and Control of the State of Arizona, Appellant,
v.
ROY C. MACK, Appellee

APPEAL from a judgment of the Superior Court of the County of Pima. H. G. Richardson, Judge. Judgment affirmed.

Mr. Joe Conway, Attorney General, and Mr. Edward P. Cline, Assistant Attorney General, for Appellant.

Messrs. Stover G. Martin, for Appellee.

OPINION

Page 216

[59 Ariz. 37] LOCKWOOD, C.J.

On January 4, 1941, Cedric E. Price, who was at that time the owner of a spirituous liquor license, with location at 1003 East Broadway, Tucson, Arizona, filed an application with John A. Duncan, superintendent of liquor licenses and control, defendant, to transfer such license to Roy C. Mack, petitioner, and to move its location to 3300 South [59 Ariz. 38] Sixth Avenue. Upon receipt of the applications by defendant, copies were forwarded to the clerk of the board of supervisors of Pima County, and duly posted at the proposed new location. On February 3 the supervisors considered the application to transfer the license to the new location, together with all protests filed against the transfer, and disapproved it. A copy of this order was transmitted to the state liquor department, and on March 19 defendant held a hearing, at which time witnesses, both approving

Page 217

and protesting the transfer, were heard. On March 21 defendant made an order finding that the public convenience did not require and would not be substantially served by transferring the location of the license, and ordered that the application be denied. Within ten days thereafter petitioner appealed to the superior court of Pima County, as provided by law, and a trial was had at which considerable new evidence was taken. At the close of the case the court ordered that the application of petitioner be granted, and this appeal was taken.

There are a number of questions presented by the appeal, which we will consider as seems proper. The first, and most important, is the nature of an appeal to the superior court from the decision of the superintendent of liquor licenses and control denying the issuance or transfer of a license. Sections 72-108 and 72-109, Arizona Code 1939, read, so far as material, as follows:

"Issuance of licenses. -- (a) The superintendent shall issue a spirituous liquor license only upon satisfactory showing of the capability, qualifications, and reliability of the applicant, and that the public convenience requires and will be substantially served by such issuance....

"(c) Any spirituous liquor license shall be transferable as to the person licensed or as to any location [59 Ariz. 39] within the same county, upon payment of a transfer fee of twenty-five dollars ($25.00) and after application in the manner provided for original application for a license. The transferee shall have the qualifications required of an original applicant. No transfer shall be made while any charge for violation of this act or a rule or regulation of the superintendent is pending, and no transfer as to location shall be made unless it is shown to the satisfaction of the superintendent that the public convenience requires and will be substantially served thereby."

"Revocation and suspension. --... (c) The decision of the superintendent shall be final in any matter relating to the issuance, renewal, suspension, or revocation of a license, unless the person aggrieved, within ten (10) days after the date of the decision, files an appeal with the superior court of the county in which the licensed premises are located. In such appeal, the court shall hear and determine the matter de novo, not more than ten (10) days after the date of filing the appeal. Pending determination of the appeal, the decision and order of the superintendent shall remain in full force and effect, and may not be superseded."

The manner of taking appeals to the superior court is governed by the provisions of sections 19-303, 19-304 and 20-707, Arizona Code 1939. These sections, so far as material, read as follows:

"Appellate jurisdiction. -- The superior court shall have appellate jurisdiction in all action from the courts of justices of the peace, inferior court officers and boards ...


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