[76 Ariz. 68] Platt & Greer, of St. Johns, for plaintiff.
Ross F. Jones, Atty. Gen., Charles Crehore, Phoenix, for defendant.
Original petition by C. A. McCarrell, designated as the plaintiff but herein referred to as petitioner, seeking writ of mandamus to require C. L. Lane, Superintendent of the Motor Vehicle Division, Arizona State Highway Department, herein referred to as respondent, to issue certificates of title for two new automobiles. The factual basis for claiming the right to the writ is that petitioner, a resident of Apache County, Arizona, is the owner of
two new automobiles which had not theretofore been registered in any other state; that applications for titles in regular form were submitted to respondent accompanied by the manufacturer's statement of origin certifying that the vehicles had been transferred to A. Ray Barker Motor Company of Albuquerque, New Mexico. One of these statements of origin carries three purported assignments of the statement and transfer of the vehicle described therein, sworn to before a notary public in the state of New Mexico, which are as follows: from A. Ray Barker Motor Company to Auto Trading Post, Santa Fe, New Mexico; from Auto Trading Post to Gallup Willys Company;[76 Ariz. 69] and from Gallup Willys Company, Gallup, New Mexico, to petitioner. The other statement of origin carries the following two purported assignments sworn to before a notary public of New Mexico: from A. Ray Barker Motor Company to Gallup Willys Company, and from Gallup Willys Company to the petitioner. It was conceded by counsel in conference and at oral argument that the respondent had investigated and determined that the statements of origin and assignments were genuine and that assignors A. Ray Barker Motor Company, the Auto Trading Post, and Gallup Willys Company were legitimate dealers in the state of New Mexico.
Respondents move to dismiss the petition upon the following grounds: (1) That the vehicles are foreign vehicles as defined in Section 66-401, A.C.A.1939; that before they are entitled to registration they must be inspected by the vehicle division, and that petitioner has not alleged such inspection; (2) that the respondent has adopted a rule which specifically prohibits issuance of titles on the facts herein; and (3), that petitioner has an adequate remedy at law for declaratory judgment as provided by Chapter 97, Second Regular Session, Twentieth Legislature, 1952 Session Laws of Arizona.
The contention that the cars are foreign vehicles and must be inspected by the vehicle division has no application for the reason that registration is not sought. There is asked merely the issuance of certificates of title. Likewise, admittedly the failure of inspection was not the reason for denying the title. There is no merit to this point.
We cannot sanction the contention that petitioner has an adequate remedy at law. The long delay of litigation through the trial court and possibly by appeal through this court with the petitioner being deprived of the right to the use of the vehicles would be entirely inadequate.
The respondent under his claim of statutory rule-making power made the following order:
'Whereas, Section 66-205, A.C.A.1939, provides, 'The application for a certificate of title to a new vehicle shall be accompanied by a certificate from the manufacturer showing the date of sale to the dealer or person first receiving same from the manufacturer * * * and shall certify that the vehicle when so sold was a new vehicle. If sold through a dealer, such dealer shall certify that the vehicle when sold to the applicant was new.'
'Now, therefore, to give full effect to the provisions of the above quoted statutes, it is ordered that when an application for an Arizona certificate, of title is supported by a manufacturer's certificate of origin, the application shall be handled as follows:
'1. When the manufacturer's certificate shows transfer of the vehicle by the manufacturer to a person (Sec. 66-205), the Division[76 Ariz. 70] will issue a certificate of title to such person named in the manufacturer's certificate.
'2. Manufacturers' certificates, the basis for the title to a new car, will be accepted only when issued to a dealer duly licensed and registered under the laws of Arizona.'
It is apparent that respondent is of the opinion that the word 'dealer' as used in Section 66-205(b), A.C.A.1939 and correctly quoted in the foregoing order, should be interpreted to mean only a dealer duly licensed and registered under the laws of the state of Arizona. This presents the decisive question. It is fundamental that the respondent could not enact a ...