ARIZONA CORPORATION COMMISSION, and Mit Simms, William T. Brooks, and Timothy D. Parkman, as members thereof, Appellants,
CATALINA FOOTHILLS ESTATES, a corporation, Appellee.
[78 Ariz. 246] Ross F. Jones, Atty. Gen., and William Penn, Asst. Atty. Gen., for appellants.
Boyle, Bilby, Thompson & Shoenhair, Richard B. Evans, Tucson, for appellee.
Appellee, Catalina Foothills Estates, a corporation, brought an independent action in the superior court against appellants, Corporation Commission of the State of Arizona and the individual members thereof, to vacate and set aside an order of the commission. Judgment was rendered in favor of the plaintiff, and defendants forty-eight days thereafter gave notice of appeal to this court. Plaintiff (appellee) has moved the court to dismiss the appeal on the ground that it was not taken within thirty days from the entry of judgment. Defendants (appellants) resist the motion claiming they had sixty days in which to take the appeal. We shall hereafter refer to the parties as they were designated in the lower court.
The question is whether the appeal was timely. If it was, the motion should be denied. If it was not, it should be granted, as the time permitted to take appeals may not be extended. Rules Civ.Proc., Rule 6(b) (now appearing as section 21-327, A.C.A.1939). This precise question has arisen before and we therefore believe the matter is of such importance to the practice of law in Arizona that we should depart from our ordinary custom of determining motions without written opinions.
The legislature in enacting chapter 69, article 2, A.C.A.1939, entitled Public Service Corporations, expressly provided in section 69-249 thereof for a new and independent
action in the superior court to set aside orders or decisions of the corporation commission. See, Metropolitan Lines v. Brooks, 70 Ariz. 344, 220 P.2d 480. Incorporated within this statute is the following provision granting an appeal to this court, which has been in force since statehood (1912):
'* * * Either party to said action, or the attorney general on behalf of the state, within thirty (30) days after the rendition of the judgment of the superior court, may appeal to the Supreme Court. * * *'
[78 Ariz. 247] Plaintiff maintains that the thirty-day time limit fixed therein is controlling. The defendants, on the other hand, insist that the adoption in the year 1940 of Rule 72, Civ.Proc. as amended (now appearing as section 21-1801, A.C.A.1939, 1952 Cum.Supp.), worked an implied repeal of the inconsistent provision of the earlier statute set forth above. Rule 72, supra, provides:
'When an appeal is permitted by law to the Supreme Court, it shall be taken by notice filed with the superior court within sixty (60) days from the entry of the judgment or order appealed from, as provided by these rules. * * *'
In the case of Ramsey v. Arizona Corporation Commission, our number 5401 (by a minute order dated September 26, 1950), we granted a motion to dismiss an appeal under similar circumstances. The identical contention was again raised in the case of Old Pueblo Transit Co. v. Corporation Commission, 73 Ariz. 32, 236 P.2d 1018, 1020. However we there stated:
'* * * it is not necessary for us to pass upon the proposition presented that Rule 72 * * * fixing the appeal period within 60 days from entry of judgment, constitutes and effects an implied repeal of the special 30-day appeal period provided for in section 69-249 and we therefore express no opinion thereon.'
Although we have been called upon many times to determine whether a later legislative enactment impliedly repealed a former statute, this is the first time we have had to determine whether a statute pertaining to a special procedure which had become a rule of court under section 19-204, A.C.A.1939 was impliedly repealed by this court's subsequent adoption of a general rule of civil procedure. However, the rules of statutory construction by which the former determinations were made may well be applied to the instant problem. The principles here to be applied are those governing implied repeal of an earlier special act by a later general enactment. Our leading case on the problem is Rowland v. McBride, 35 Ariz. 511, 281 P. 207, 210. The question there presented was whether an appropriation for improving a highway from Casa Grande to Gila Bend had been impliedly repealed by later enactment of the Highway Code. The court speaking through Mr. Justice Ross laid down the following principles:
'The rule is that a later act, general in its terms, will not be construed as repealing a prior act treating in a special way something within the purview of the general act. In other words, a special or particular statute is not repealed by a general statute, unless the intent to repeal is manifest. * * *
'It should also be borne in mind that 'repeals by implication are not favored, and will not be indulged if there is any other ...