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Vazzano v. Superior Court in and for Maricopa County

Supreme Court of Arizona

November 3, 1952

VAZZANO
v.
SUPERIOR COURT IN AND FOR MARICOPA COUNTY

Judgment of Superior Court annulled.

A. E. Farone, of Phoenix, for petitioner.

Fred O. Wilson, Atty. Gen., Maurice Barth, Asst. Atty. Gen., Phil J. Munch, Asst. Atty. Gen., for respondent.

Udall, Chief Justice. Stanford, De Concini and La Prade, JJ., concur. Phelps, J., took no part in the determination of this matter.

OPINION

Udall, Chief Justice.

[74 Ariz. 370] Petitioner, Josephine Vazzano, instituted this original proceeding in certiorari against the superior court of the state of Arizona, in and for the county of Maricopa, Honorable Gordon Farley presiding, for the purpose of testing whether said court exceeded its jurisdiction in the exercise of its judicial function in that it failed to follow the statutory rules of procedure applicable to the matter under consideration.

The writ was issued and return made, and from the record now before us it appears: that petitioner was the holder of a Series 7 spirituous liquor license and was the operator of a liquor establishment known as the Black & Tan, located at 1614 East Washington Street, Phoenix, Arizona; that through the instrumentality of an order to show cause the petitioner was ordered to and did appear before John A. Duncan, Superintendent of Liquor Licenses and Control of the State of Arizona, to show cause why her license should not be revoked for a violation of the liquor code, Chap. 72, A.C.A.1939, as amended,

Page 838

and the rules and regulations of the superintendent. Specifically she was charged with allowing and permitting "disorderly persons" and "intoxicated persons" to come into and remain in and about her [74 Ariz. 371] premises. A hearing was had at which evidence was adduced by both the state and the licensee. The superintendent, sitting in his quasi-judicial capacity, found that the charges made were sustained by the evidence, and an order was thereupon made revoking petitioner's license.

Notice of appeal to the superior court, under the provisions of Section 72-109(c), A.C.A.1939, as amended, was timely made. The matter came on for a trial de novo before the superior court sitting without a jury. We do not have a reporter's transcript before us but the minutes show that the trial court, over the vigorous objection of counsel for appellant, Josephine Vazzano, treated the appellant as a plaintiff and required her to assume the burden of proving that the charges against her were untrue. The petitioner asserts, and it is not denied by the state, that she was required "to proceed with her cause or subject herself to dismissal for lack of prosecution of the appeal." This unique trial procedure forms the basis for these certiorari proceedings.

Our statutes expressly declare the procedure to be followed in trials conducted in the superior courts of the state. Section 21-903, A.C.A.1939, makes the rules prescribed for trial of actions before a jury the rules governing trials by the court so far as applicable. Section 21-906, A.C.A.1939, sets out the "Order of trial by jury", the proper order being:

"3. The plaintiff shall then introduce his ...

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