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Anthony A. Bianco, Inc. v. Hess

Supreme Court of Arizona

May 20, 1959

ANTHONY A. BIANCO, INC., Jarson and Zerilli Co., Inc., and Peter Nalbandian, dba Arizona Vineyards, John Curci and L. A. Turner, dba Curci-Turner, Yuma Lemon Groves, a corporation, Ralph Hawkins, as Agricultural Prorate Commissioner of the State of Arizona, and J. M. Foote, as Supervisor of Inspection of the State of Arizona, Appellants.
v.
R. M. HESS, Arthur Burgher, E. D. Tway, D. M. Tyler, Lyle Patrick, Lawrence Mehren and Walter White, Appellees.

Page 1039

Page 1040

[86 Ariz. 18] Robert Morrison, Atty. Gen., and Harmon S. Puckett, Asst. Atty. Gen., for Ralph Hawkins and J. M. Foote, appellants.

McKesson & Renaud and J. Gordon Cook, Phoenix, for intervenor-appellants.

Snell & Wilmer and Perry M. Ling, Phoenix, for appellees.

PHELPS, Chief Justice.

This action was instituted in the Superior Court of Maricopa County by plaintiffs, R. M. Hess, Arthur Burgher, E. D. Tway, D. M. Tyler, Lyle Patrick, Lawrence Mehren and Walter White, against the Agricultural Prorate Commission of the State of Arizona, and the Supervisor of Inspection of the State of Arizona, seeking a declaratory judgment interpreting certain parts of the Agricultural Prorate Act of 1939 as amended (A.R.S. § 3-401 et seq.), to wit, the phrases 'commercial production' and 'the unit of one acre in commercial production'. In addition, plaintiffs' complaint prayed that a writ of mandamus be issued requiring the Agricultural Prorate Commissioner to correct certain lists of lemon growers by eliminating therefrom certain lemon growers no in commercial production.

An alternative writ of mandamus issued requiring the Commissioner and Supervisor of Inspection to either correct the lists of growers or show cause why such correction should not be made. The Attorney General answered for the Commissioner and Supervisor, admitting the existence of a controversy and alleging that the interpretation of the Agricultural Prorate Act by the Commissioner was a correct interpretation, and that therefore the writ of mandamus should not be made peremptory, and praying for a declaratory judgment interpreting

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the Agricultural Prorate Act in accordance with the views of the Commissioner and the Supervisor. The controversy as between these parties is based upon the proper construction to be given to the Agricultural Prorate Act.

Prior to the answer of the Attorney General, Anthony A. Bianco, Inc., Jarson & Zerilli Co., Inc., Peter Nalbandian, Iba Arizona Vineyards, John Curci and L. A. Turner, dba Curci-Turner, and Yuma Lemon Groves, a corporation, owners of immature lemon trees, moved to intervene as defendants to file a motion to dismiss the complaint. The motion to intervene was granted[86 Ariz. 19] and the motion to dismiss was denied after extensive argument and filing of complete briefs.

Plaintiffs then moved for summary judgment based upon the pleadings and records of the cause, and the deposition of the defendant Supervisor of Inspection. The intervenor-defendants filed a motion to strike the motion for summary judgment raising the propriety of the summary judgment remedy at that stage of the proceedings. The trial court was of the opinion that the only substantial issue in the case was one of law, to wit, the proper interpretation of the phrase 'commercial production' as contained in the Agricultural Prorate Act. The motion to strike was denied. The motion for summary judgment after being briefed and argued was submitted for decision.

The question involved then was whether the phrases 'commercial production' and 'the unit of one acre in commercial production' should be construed as meaning a grove actually then capable of producing fruit in commercial quantities or construed as meaning a grove planted and intended for commercial production in the future but not yet producing fruit in commercial quantities. As to this question the trial court said:

'The Court is of the opinion that the words 'Commercial production' are words of such common meaning that the taking of evidence as to their meaning would in nowise add in interpreting their meaning. It seems reasonably clear that an acre of lemons in commercial production means an acre of ground planted to lemon trees so planted and managed as to demonstrate the owner thereof intends or hopes to reap a monetary gain therefrom as distinguished from trees planted say for landscape effect or for personal and family use.

'This leaves only the question as to whether the grove must be matured to the point it can be considered a commercially producing grove or whether it may be still in a stage of growing and maturing where the fruit produced, if any, does not substantially meet the cost of care with a reasonable hope of some overplus.

'Undoubtedly the Commissioner, as to borderline cases, will be obliged to use his discretion and good judgment in determining whether a given grove meets the test or does not, and probably the Commissioner might presumptively in the absence of protest and appeal, reject as ineligible all groves under a given age, which age he would accept as the breaking point as between being in commercial production and being still in the growing or maturing stage. However, this exact question is not involved in this litigation.

[86 Ariz. 20] 'The Court is of the opinion from a reading of the Act that the Legislature plainly had in mind making possible the control of surpluses existing when the aid of the Prorate Act should be invoked. Clearly possible surpluses and market conditions two, three or four years in the future should not prevent the control of such conditions today, if such control is indicated after compliance with the Prorate Act procedures.'

The trial court then held that the phrases 'commercial production' and 'the unit of one acre in commercial production' as used in the Agricultural Prorate Act and as applied to the marketing of lemons means an

Page 1042

acre of ground planted to lemon trees which are so planted and cared for and which have grown to a stage of maturity that such grove is capable of producing in the current crop year a crop of lemons, under normal crop and market conditions and with normal husbandlike management, sufficient to meet and defray the costs of production with a reasonable expectation of some income in excess thereof as a profit to the grower. The trial court then made the alternative writ of mandamus peremptory and ordered the Agricultural Prorate Commissioner to correct the lists of producers submitted to him by the Supervisor of Inspection by eliminating the names of all owners of acreage planted to lemon trees, which were not of a sufficient age, maturity and producing capacity to qualify as being in commercial production under the above definition.

Both the defendants and the intervenor-defendants have appealed to this court from the aforementioned summary judgment order of the trial court. J. M. Foote, Superviser of Inspection and Ralph Hawkins, Agricultural Prorate Commissioner gave notice of appeal but assigned no errors, however, on March 20, 1957 by written document they adopted authorities and arguments of intervenors. We will however, consider them as having adopted intervenors' briefs in toto including assignments of error.

Defendants' first assignment of error is to the effect that: the superior court erred in refusing to grant defendants' motion to dismiss plaintiffs' complaint and in granting plaintiffs' motion for summary judgment for the reason that plaintiffs failed to make all persons parties who have or claim an interest which would be affected by the declaratory judgment sought, and plaintiffs have failed to make all persons parties who would be affected by the mandamus judgment sought, in that plaintiffs did not make all persons parties whom plaintiffs are seeking to remove from the list of producers and producing factors prepared by the Supervisor of Inspection pursuant to the provisions of Subsection A of A.R.S. § 3-409.

[86 Ariz. 21] Defendants argue that there are great numbers of persons or organizations who own or control lemon acreage which has not grown to a stage of maturity that is capable of commercial production as defined by the trial court; that the interest of these persons or organizations will be affected by the summary judgment order; that these persons or ...


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