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State Tax Commission v. Miami Copper Co

Supreme Court of Arizona

July 14, 1952

STATE TAX COMMISSION et al.
v.
MIAMI COPPER CO

Judgment affirmed.

Fred O. Wilson, Atty. Gen., Charles C. Stidham, Asst. Atty. Gen., for appellants.

Morris & Malott, of Globe, for appellee.

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

OPINION

Udall, Chief Justice.

Page 872

[74 Ariz. 235] The defendant, State Tax Commission, appeals from a judgment awarded Miami Copper Company, plaintiff-appellee, for the recovery of excise taxes theretofore paid by it under protest. For convenience sake we shall refer to the appellant as the "Commission" and to the appellee as plaintiff or the "Company".

Although five separate appeals have been filed by the Commission, our numbers 5434, 5435, 5436, 5437, 5438, by stipulation of the [74 Ariz. 236] parties they were consolidated for presentation to this court. 74 Ariz. 244, 246 P.2d 877; 74 Ariz. 246, 246 P.2d 879; 74 Ariz. 247, 246 P.2d 879; 74 Ariz. 247, 246 P.2d 880. The legal questions presented are identical although the tax levied against the plaintiff Sam Knight Mining Lease, Inc., 74 Ariz. 244, 246 P.2d 877, is based under a different subdivision of the statute. None of the facts are in dispute.

The additional assessments levied by the Commission, covering the period January 1, 1942 to December 31, 1946, were paid under protest by the five companies involved in these appeals, and the moneys so paid are presently impounded in the Tax Protest Fund as provided in the Act. After a formal hearing the Commission denied the protests and separate actions were brought in the superior court of Gila county to recover these impounded tax moneys. In each case both the plaintiff and defendant moved for a summary judgment. The motions of the Commission were denied and those of the mining "companies" were granted and judgments were duly entered thereon. These appeals followed.

A procedural matter, involving the question as to whether the Commission timely appealed from these judgments, will first be considered. The lower court on May 26, 1950, after granting the plaintiffs' motions for summary judgments, directed the clerk of the court to enter judgments for them as prayed for in their respective complaints. Appropriate entries were accordingly made in the judgment docket entering judgments, on June 1, 1950, for all the plaintiffs except the judgment for Sam Knight Mining Lease, Inc., which was entered on June 3, 1950. The Commission on July 25, 1950, more than twenty days after the entry of these judgments, filed their notices of appeal.

Plaintiffs, by their motions to dismiss filed in this court, directly raise the question whether section 21-1801 (Rule 72), as amended, A.C.A.1939, supersedes the provisions of section 73-1318, A.C.A.1939, insofar as the time within which an appeal may be taken to this court. Section 73-1318, supra, was enacted by the Twelfth Legislature as part of the Excise Revenue Act, Chap. 77, Laws 1935, A.C.A.1939, § 73-1301 et seq., and in part provides:

"* * * In any suit for recovery of taxes illegally collected, the court shall adjudge costs as in other civil actions. Either party to such suit shall have the right to appeal to the Supreme Court of Arizona as now provided by law, except that the time within which appeal may be taken shall be twenty (20) days." (Emphasis supplied.)

Section 21-1801, supra, was promulgated and adopted as part of the Rules of Civil Procedure for the Superior Courts of Arizona, by the Supreme Court of Arizona, effective January 1, 1940, and provides:

"When an appeal is permitted by law to the Supreme court, it shall be taken by notice filed with the Superior court [74 Ariz. 237] within sixty (60) days from the entry of the judgment or order appealed from, as provided by these rules. * * *" (Emphasis supplied.)

Concededly the notices of appeal were not filed within twenty days from the entry of the judgments, and if section 73-1318, supra, applies these appeals must be dismissed as this court would not have acquired jurisdiction to hear them. In re Gipson's Estate, 64 Ariz. 181, 167 P.2d 383.

Section 21-1801, supra, was adopted pursuant to the express authority granted

Page 873

to the supreme court by the legislature in the following statutes, Chap. 8, Laws 1939, now appearing in the A.C.A.1939 as sections:

"19-202. Rules of pleading, practice, and procedure. -- The Supreme Court, by rules promulgated from time to time, shall regulate pleading, practice and procedure in judicial proceedings in all courts of the state, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify the substantive rights of any litigant. * * *
"19-204. Existing statutes deemed rules of court. -- All statutes relating to pleading, practice and procedure, existing at the time this act takes effect shall be deemed to be rules of court and shall remain in effect as such until modified or suspended by rules promulgated pursuant to this act."

See also Burney v. Lee, 59 Ariz. 360, 129 P.2d 308.

Appellee's position is that the right to appeal was given by section 73-1318, supra, and that the legislature also conditioned the right upon its being taken within twenty days, which in these special proceedings is a matter of substantive law and cannot be repealed or changed by a rule of this court. They further urge that a general rule does not repeal a special statute unless the intent to do so is manifest and that where the two are not inconsistent they can exist side by side, and that repeals by implication are not favored.

We have repeatedly held that the right of appeal exists solely by virtue of an express constitutional or statutory provision. In other words, an appeal is a privilege granted by the constitution or statute and in the absence of an express provision granting the right, none exists. Smith v. Trott,36 ...


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