Fred O. Wilson, Atty. Gen., Maurice Barth, Asst. Atty. Gen., Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, for petitioner.
Charles W. Stokes, of Coolidge, for respondent.
Udall, Chief Justice. Stanford, Phelps, De Concini, and La Prade, JJ., concurring.
Udall, Chief Justice.
[74 Ariz. 330] John A. Duncan, Superintendent of Department of Liquor Licenses and Control of the State of Arizona, hereinafter termed the petitioner, sought a writ of certiorari in this court to review the proceedings of the superior court of the state of Arizona, in and for the county of Pinal, Honorable W. C. Truman presiding, in a certain case on appeal to that court which went to judgment, wherein Ralph S. Barrington was the appellant and petitioner Duncan was the appellee.
The writ was issued and return made, and the record certified to us shows the following facts: One H. D. Martin held a Series 6 spirituous liquor license, regularly issued to him by the petitioner for his use at premises locally known as Desert Beach which is situated one mile south of Coolidge, Arizona. Martin became indebted to various parties, and on June 6, 1949 appellant Barrington recovered a judgment in the Superior Court of Pinal County against Martin for $ 2,480.13. A general execution was issued thereon and during the month of November, 1949, the sheriff purportedly levied upon the liquor license in question and thereafter sold the same at public auction to appellant Barrington for the amount of his judgment, and issued to the latter a certificate of sale. Barrington then made application to petitioner for transfer of the Martin license to him. The application was disapproved by the superintendent on March 7, 1951. Under the provisions of Section 72-109, (c), A.C.A.1939, as amended by Chapter 60, section 7, Laws 1950, 1st S.S., Barrington gave timely notice of appeal to the superior court. Issues were framed by a complaint on appeal and petitioner's answer thereto. Petitioner's motion to dismiss for lack of jurisdiction was denied and the matter came on regularly for a hearing in a trial de novo as provided in the statute. Judgment was entered setting aside the action of Superintendent Duncan in denying the transfer and directing said superintendent to grant Barrington's application by issuing a license to him. This application for certiorari followed.
At the outset we are met with the respondent's contention that the writ was improvidently [74 Ariz. 331] issued as certiorari will not lie under the facts delineated above. After more careful consideration it appears to us that the point is well taken.
Our statute, Section 28-101, A.C.A.1939, provides that certiorari may be granted only when the inferior tribunal has exceeded its jurisdiction and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy. See Batty v. Arizona State Dental Board, 57 Ariz. 239, 112 P.2d 870; Hunt v. Norton, 68 Ariz. 1, 198 P.2d 124, 5 A.L.R.2d 668. The statute, Section 72-109, A.C.A.1939, as amended, speaks of the power or jurisdiction of the superior court in an appeal from a decision of the superintendent "in any matter relating to the * * * transfer * * * of a license * * *", stating therein that "In such appeal, the court shall hear and determine the matter de novo". The statute is silent as to any further review. Therefore, as the right of appeal exists only by force of statute, the remedy available is what the legislature has granted as defined by the statute, and where, as here, the legislature has failed to
grant the right of appeal from the superior court to the supreme court no such right exists. Him Poy Lim v. ...