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Cox, State Real Estate Commissioner v. Superior Court In & for Pima County

Supreme Court of Arizona

November 26, 1951

COX, State Real Estate Commissioner,

Petition dismissed.

Fred O. Wilson, Atty. Gen., Maurice Barth, Asst. Atty. Gen., and Knapp, Boyle, Bilby & Thompson, and Arthur Henderson, of Tucson, for petitioner.

Conner & Jones, and Warren H. Lynch, of Tucson, for respondent.

Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.


Udall, Chief Justice.

[73 Ariz. 94] This is an application for an original writ of prohibition directed to the Honorable Lee Garrett as judge of the superior court of Pima County, to prevent him from taking jurisdiction over a proceeding that originated before the petitioner, W. M. Cox, as state real estate commissioner.

Grantwood Cemeteries, Inc., under the provisions of section 67-1731 et seq., A.C.

Page 821

A.1939, The Arizona Real Estate Act, made application to the petitioner to establish a cemetery and subdivide certain land located in Pima County, Arizona. After a hearing before the petitioner, he denied its application and prohibited the sale of the property. Grantwood Cemeteries, pursuant to section 67-1739, A.C.A.1939, gave notice of appeal from the findings and order denying their application to the superior court. The pertinent parts of this latter section reads: "The decision of the commissioner in denying, suspending [73 Ariz. 95] or revoking any license, or other order or decision, shall be subject to review. Any person aggrieved by the commissioner's decision may, within thirty (30) days after such decision, appeal to the superior court of the county in which the appellant resides, and such court shall, on such appeal, inquire into the cause of such denial, suspension or revocation, or other order or decision. If, in the opinion of the court, the denial, suspension or revocation of such license, or other order or decision, was made without just cause, the court may afford such relief as it may deem advisable. * * * Hearing of any such appeal shall proceed in accordance with such rules as the court may determine. The party appealing may make demand of the commissioner, in writing, for a certified transcript of all papers on file in his office affecting or relating to such decision or order and of all evidence taken at the hearing. * * *"

The primary question involved is whether the legislature can vest the superior courts with appellate jurisdiction of proceedings originating before an administrative body?

Art. 6, Sec. 6 of the Constitution of Arizona provides: "* * * Said court (superior court) shall have * * * appellate jurisdiction in cases arising in justices' and other inferior courts in their respective counties as may be prescribed by law. * * *" Petitioner contends that the legislature because of the above provision can neither expand or extend the appellate jurisdiction of the superior courts and that the rule of construction, expressio unius est exclusio alterius should be applied. He relies upon the following decisions. viz.: North Point Consol. Irr. Co. v. Utah & S. L. Canal Co., 14 Utah 155, 46 P. 824; Attorney General of Utah v. Pomeroy, 93 Utah 426, 73 P.2d 1277, 114 A.L.R. 726; Jung v. Myer, 11 N.M. 378, 68 P. 933; Lemen v. Edmunson, 202 Cal. 760, 262 P. 735; North Bend Stage Line v. Department of Public Works, 170 Wash. 215, 16 P.2d 206, and Durousseau and Others v. United States, 6 Cranch 307, 3 L.Ed. 232. Without analyzing each of them separately, and with due deference to the courts rendering them, we are of the opinion that the holdings in these cases for the most part can be readily distinguished or they are in direct conflict with prior reasoning and holdings of this court.

The respondent on the other hand relies upon previous pronouncements of this court beginning with Hoeye v. Willis, 15 Ariz. 257, 138 P. 15, 16: "The right to an appeal does not exist at common law. It has its origin in the Constitution or in the statute. When the right is neither given nor denied by the Constitution, it is then within the discretion of the legislative authority to grant it or take it away, to enlarge or circumscribe the remedy, and to say in what cases, and under what circumstances, and whence appeals may be taken. (Citing cases.)" Counsel for petitioner might be correct in branding this statement [73 Ariz. 96] as dicta in that case, but the same principle has been reiterated in the following cases: Smith v. Trott, 36 Ariz. 166, 283 P. 726; Beach v. Superior Court, 64 Ariz. 375, 173 P.2d 79; Him Poy Lim v. Duncan, 65 Ariz. 370, 181 P.2d 357. If any doubt remained as to this being the law in this jurisdiction it was resolved adversely to the views of the petitioner in the recent case of Earhart v. Frohmiller, 65 Ariz. 221, 178 P.2d 436, 437, wherein it was stated:

"We believe the rule of construction which requires the finding of express authorization is inappropriate when applied to the Constitution of the State of Arizona, and by the great weight of authority throughout the United States, it is not applicable to the construction of state constitutions generally. Art. 2, Sec. 33 of the ...

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