HUNT et al.
NORTON et al
Appeal from Superior Court, Pima County; Henry C. Kelly, Judge.
Certiorari proceeding by Oakley T. Norton and others to annul an order by Joe Hunt and others, as members of the State Tax Commission, authorizing the board of supervisors of Pima county to create liabilities exceeding the amount fixed by the county budget for recreational purposes. From a judgment annulling the order, defendants appeal.
Evo De Concini, Atty. Gen., and Chas. D. McCarty, Asst. Atty. Gen., for appellants.
Fred W. Fickett, William S. Dunipace and Robert S. Tuller, all of Tucson, for appellees.
Udall, Justice. Stanford, C. J., and LaPrade, J., concur.
[68 Ariz. 4] This is an appeal by the members of the State Tax Commission of Arizona (these defendants-appellants will be hereinafter referred to as the Commission) from a judgment of the superior court of Pima County. It involves the validity of a judgment of that court, in a certiorari proceeding initiated by plaintiffs (appellees) as taxpayers, wherein there was annulled and set aside an order of the Commission authorizing the Board of Supervisors of Pima County to create liabilities in the amount of $ 100,000 over and above the 1947-48 county budget, as an emergency measure for recreational purposes.
The Commission's assignments of error may be summarized as follows: that the court erred first in denying its motion to quash the writ of certiorari and later in entering judgment for the plaintiff taxpayers for the reasons that it appeared from the face of plaintiffs' complaint and from the Commission's return and response to the writ that said Commission had regularly exercised the jurisdiction conferred upon it by the laws of Arizona. In support of these assignments three propositions of law are advanced:
(1) A review on certiorari is limited to the question whether an inferior tribunal, acting in a judicial capacity, has exceeded its jurisdiction.
(2) A mistake of law or fact by an inferior tribunal does not constitute an excess of jurisdiction.
(3) Where the jurisdiction of an inferior tribunal is dependent upon a stated fact situation and the inferior tribunal is specifically authorized and directed to determine whether such fact situation does exist, a finding by the inferior tribunal that such fact situation does exist is not subject to judicial review except where an appeal has been provided by law.
There is no dispute as to the first proposition of law. It is primarily the contention [68 Ariz. 5] of the Commission that the legislature has expressly conferred jurisdiction upon it to determine whether an emergency exists, and that the courts, in certiorari proceedings, can not review the sufficiency of the evidence to determine whether such jurisdictional facts are present. If this position is sound there would seem to have been no occasion for the legislature to amend the statute, sec. 73-504, A.C.A.1939, to provide: "* * * Upon the hearing, at the request of the applicant or any interested taxpayer, a stenographic transcript shall be made of the evidence produced to establish the existence or nonexistence of the cause specified in the application. * * *" Laws 1945, ch. 98, sec. 3, p. 246.
Our constitutional and statutory provisions relative to certiorari are comparable to those of California and other neighboring states. Specifically, in this jurisdiction the writ of certiorari is authorized by sections 1 and 6 of article 6, of the constitution of Arizona, and the procedure in a case such as this is governed by Chap. 28, Art. 1, section 28-101 et seq., A.C.A.1939. The purpose of the writ is to review the proceedings and acts of inferior tribunals, boards or officers exercising judicial, or quasi judicial, functions to determine whether their jurisdiction has been exceeded. The scope of the hearing is set forth in sec. 28-104: "Extent of review. -- The review upon the writ shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer."
Certiorari may be granted only when two facts appear: (a) the jurisdiction of the inferior tribunal must have been exceeded, and (b) there is neither an appeal nor a plain, speedy and adequate remedy. Sec. 28-101, A.C.A.1939. The second fact, of course, is present. The ultimate question before us then is: did the Tax Commission exceed its jurisdiction by declaring the existence of an emergency and by authorizing the expenditure of this $ 100,000. However, in order to answer this question we must first decide whether the trial court was entitled to examine the evidence adduced in order to determine the Commission's jurisdiction in declaring that an emergency in fact existed. ...