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Chee Lee v. Superior Court In and For Maricopa County

Supreme Court of Arizona

October 23, 1956

CHEE LEE, Petitioner.
v.
SUPERIOR COURT of the State of Arizona IN AND FOR COUNTY OF MARICOPA, Respondent.

Page 530

[81 Ariz. 143] Frank J. Duffy and Jerman, Jerman & Butler, Phoenix, for petitioner.

Page 531

Rawlins, Davis, Christy, Kleinman & Burrus, Phoenix, for respondent.

Langmade & Sullivan, Moore & Romley, Snell & Wilmer, Phoenix, amici curiae.

[81 Ariz. 144] WINDES, Justice.

Chee Lee, on April 5, 1955, was issued an off-sale retailer's license to sell beer and wine. Such a license is designated Series No. 10 and authorizes the recipient to sell beer and wine only in the original package for consumption off the premises. The license was issued authorizing its use at the corner of 56th Street and Guadalupe Road in Maricopa County. Thereafter application to transfer the license to Lot 9, Block 1, Lynwood Tract, in Guadalupe was approved by the superintendent of liquor licenses and control on June 21, 1955. On June 28th J. M. Morris filed an appeal in the superior court against John A. Duncan, superintendent of liquor licenses and control, alleging that the applicant (Chee Lee) did not possess the capabilities and qualifications required by law; that the public convenience will not be served by the issuance of the licenses; that the premises upon which the license was granted are within 300 feet of public school premises; that the quota for Series No. 10 licenses for Maricopa County has been exceeded; and that the public convenience will not be substantially served by the transfer of the license.

The superintendent and Chee Lee moved to dismiss the appeal upon the grounds that it was an attempt to appeal from the original granting of the license and was not filed within the time required by law. The trial court denied the motion to dismiss, proceeded to trial, received evidence on all the allegations set forth in the notice of appeal and made findings of fact to the effect that Chee Lee did not have the legal qualifications to receive the license originally; that the superintendent exceeded the quota in issuing the same; that public convenience and necessity did not require its issuance; and that public convenience and necessity would not be substantially served by transfer of the license. The court on these findings rendered judgment annulling the license as issued and denied the application to transfer the same.

Chee Lee, hereinafter designated petitioner, requested of this court writ of certiorari to the superior court in and for the County of Maricopa, hereinafter designated respondent, upon the ground the respondent exceeded its jurisdiction in trying and adjudicating the validity of the issuance of the license. We issued the writ.

It is clear that the court tried the issue of the validity of the original issuance of the license on an appeal from an order allowing transfer from place to place, the license having been issued nearly three months prior thereto. Respondent contends this was proper for the reason that the superintendent exceeded his jurisdiction in issuing the license. If the superintendent acted within his jurisdiction, the order allowing the issuance becomes final, and its validity cannot be questioned by collateral attack or otherwise,[81 Ariz. 145] except by an appeal taken within ten days after the order of issuance. Section 72-109(c), 1952 Supp., A.C.A.1939, A.R.S.1956, section 4-210. The superintendent acted entirely within his power and jurisdiction in adjudicating qualifications of petitioner and deciding that the public convenience and necessity would be served by the issuance to him of the license. He is supposed to judge these matters. Sections 72-103, 105 and 108, 1952 Supp., A.C.A.1939, A.R.S.1956, sections 4-112, 4-201 and 4-203. No appeal having been taken from the order granting the license, the superior court on an appeal from an order permitting transfer to another location had no jurisdiction to re-examine these questions and for these reasons to adjudicate that the license was void.

Respondent also argues that under the provisions of section 72-108(d), 1952 Supp., A.C.A.1939, A.R.S.1956, section 4-203(C), on Application ot transfer the same is transferable only after application in the manner provided for original applications. This provision expressly refers to an application

Page 532

from person to person and has no reference to an application for transfer from place to place.

One of the bases for declaring the license void was that by its issuance the quota provided by statute was exceeded. This court has decided that the superintendent has no jurisdiction ot issue a license which would exceed the prescribed quota restrictions. Mayberry v. Duncan, 68 Ariz. 281, 205 P.2d 364. It is petitioner's position that there is no statutory quota for No. 10 licenses. If this position be sound, the court would exceed its jurisdiction in using this basis for adjudicating its invalidity. The court could not by construction of the statute apply an inapplicable quota any more than it could by judicial legislation apply a quota if none at all were provided by statute. It becomes necessary, therefore, to interpret the statute which prescribes restrictions on the number of licenses the superintendent may issue. So far as pertinent to our problem, section 72-107, 1952 Supp., A.C.A.1939, A.R.S.1956, section 4-206, reads:

'(a) The total number of spirituous liquor licenses issued within a single county shall not exceed:

'1. On-sale retailers' licenses providing for consumption on th premises of all spirituous liquors: 1a. in a county having a population of one hundred thousand (100,000) or more, one (1) license for each two thousand five hundred (2,500) inhabitants; 1b. in a county having a population of twenty-five thousand (25,000) or more but less than on hundred thousand (100,000) one (1) license for each two thousand (2,000) inhabitants; 1c. in a county having a population of less than [81 Ariz. 146] twenty-five thousand (52,000), one (1) license for each one thousand (1,000) inhabitants.

'2. On-sale retailers' licenses providing for consumption on the premises of beer and wine, one (1) license for each five hundred (500) inhabitants, including licenses permitting the sale of beer and wine as provided in subsection 1, hereof.

'3. Off-sale retailers' licenses providing for the sale of spirituous liquors, wines, and beer only in the original packages to be taken from and consumed off the premises: 3a. in a county having a population of one hundred thousand (100,000) or more, one (1) license for each two thousand five hundred (2,500) inhabitants; 3b. in a county having a population of twenty-five thousand (25,000) or more but less than one hundred thousand (100,000), one (1) license for each two thousand (2,000) inhabitants; 3c. in a ...


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