Beach v. Superior Court, 4933

Decision Date30 September 1946
Docket Number4933
Citation173 P.2d 79,64 Ariz. 375
PartiesBEACH et al. v. SUPERIOR COURT OF APACHE COUNTY et al
CourtArizona Supreme Court

Original proceeding by Charles P. Beach, R. K. Wickstrum, and William S. Conner, constituting the Arizona Game and Fish Commission, and O. C. Williams, State Land Commissioner petitioners, against the Superior Court of Apache County and Levi S. Udall, Judge of the Superior Court of Apache County Arizona, respondents, to prohibit the respondents from proceeding further in the matter of a certain appeal pending in the superior court, and to prohibit Levi S. Udall from assuming jurisdiction and attempting to hear and determine the matters purportedly at issue in the appeal.

Peremptory writ of prohibition issued.

John L. Sullivan, Atty. Gen., and John W. Rood, Chief Asst. Atty. Gen., for petitioners.

Scott & Green, of Phoenix, for respondents.

LaPrade Judge. Stafford, C. J., and Morgan, J., concurring.

OPINION

LaPrade, Judge.

This is an original proceeding in this court by the Arizona Game and Fish Commission appearing by its members and O. C. Williams, State Land Commissioner, against the Superior Court of Apache County and Levi S. Udall as judge thereof, asking that this court prohibit the Honorable Levi S. Udall from proceeding further in the manner of a certain appeal now pending in his court, and prohibit the said Levi S. Udall from assuming jurisdiction and attempting to hear and determine the matters purportedly at issue in said appeal.

The facts necessary for determination of this proceeding are not in dispute and may be stated as follows: The petitioners, under the provisions of Section 75-105, A.C.A.1939, made application to O. C. Williams, state land commissioner, for the construction of a reservoir and dam and a permit to appropriate certain waters of a stream in Apache County known as Big Lake Creek for "recreational and wild life purposes." At a hearing to determine whether the permit should issue the Salt River Valley Water Users' Association appeared and objected to the granting of any permit upon the ground that it had, long prior to the filing of the application, acquired a vested right in and to the use of all of the waters of said creek by prior appropriation and continued beneficial use. The land commissioner approved the application and granted the permit. The Association filed its notice of appeal from the order of the land commissioner. This was filed in the Superior Court of Apache County, the appellant Water Users alleging that it was a person whose rights were affected by the decision and order and that it had a right to appeal under the provisions of Section 75-113, A.C.A.1939, which, in part, provided that "An applicant, or any person whose rights are affected by the decision of the commissioner, may appeal to the superior court of the county in which the water proposed to be diverted is situate, which court may modify the decisions of the commissioner if he has abused his authority. * * *" The petitioners appeared in the Superior Court and filed their motion to dismiss the appeal, objecting to the jurisdiction of the Superior Court of Apache County to consider the appeal upon the grounds and for the asserted reason that the court had no jurisdiction of the subject matter of the action nor the parties thereto. They contended that the Water Users' Association is not a person whose rights were affected by the decision of the land commissioner, and not being such a person it was without right to appeal to the Superior Court; that the subject matter of the appeal was not a matter over which the land commissioner had jurisdiction; and, as a consequence, the Superior Court had no jurisdiction on appeal from the commissioner. The Judge of the Superior Court refused to dismiss the appeal and decided that the court had jurisdiction, and proposed to set the cause for trial and hearing and determine the matter and issues in all respects as if he were lawfully entitled to hear the same unless this court by its writ of prohibition shall otherwise order.

Whether respondents, in denying petitioners' motion to dismiss the appeal of Salt River Valley Water Users' Association from the decision and order of the state land commissioner of Arizona, and in proceeding to hear and determine said appeal, acted or will act without or in excess of the jurisdiction, powers and authority conferred upon them by law, turns upon the meaning and effect to be given Section 11 of the Water Code of Arizona 1919, as subsequently amended.

Section 11, Chap. 164, Session Laws Arizona, 1919, commonly referred to as the Arizona Water Code, as originally enacted, read: "An applicant may appeal to the court hereinafter specified for relief, which may modify the decisions of the Commissioner if it shall appear that he has abused the authority reposed in him by law. Such appeal shall be taken within sixty days from the date of such decision by the Commissioner and shall be perfected when the applicant shall have filed with the court a copy of the order appealed from, together with a petition setting forth the appellant's reason for appeal, and such appeal shall be heard and determined upon such competent proof as shall be adduced by the applicant. and such like proofs as shall be adduced by the commissioner." (Emphasis supplied.)

By Chapter 109, Session Laws Arizona 1927, said Section 11 was amended to read as follows: "An applicant may appeal to the Superior Court of any county in which any portion of said proposed work or works may be situated, which court may modify the decisions of the Commissioner if it shall appear that the Commissioner has abused the authority reposed in him by law. Such appeal shall be taken within sixty days from the date of such decision by the Commissioner and shall be perfected when the applicant shall have filed with the clerk of the said Superior Court a copy of the order appealed from, together with a petition or complaint setting forth the appellant's reasons for appeal, which complaint or petition together with evidence of the service of a copy thereof upon said Water Commissioner, who shall answer the same within thirty days from the date of said service, such answer to be accompanied by the records and files of his office in the matter on appeal, and said appellant may have summons issued for any other party in interest as in any other civil action. Such appeal shall be heard and determined de novo." (Emphasis supplied.)

It will thus be noted that the 1927 amendment made only certain procedural changes or additions and that the right of appeal to the courts from the commissioner's decision was still accorded only to the applicant in the proceedings before the commissioner.

By the 1928 Arizona Code, Section 3292, Section 75-113, A.C.A.1939, said Section 11 was changed and amended to read: "An applicant, or any person whose rights are affected by the decision of the commissioner, may appeal to the superior court of the county in which the water proposed to be diverted is situate, which court may modify the decisions of the commissioner if he has abused his authority. The appellant, within sixty [60] days from the decision by the commissioner, shall file with the clerk of the court a copy of the order appealed from, together with a petition stating the grounds of the appeal. A copy of the petition shall be served upon the commissioner, who shall answer the same within thirty days [30] from the service, and with the answer transmit to the court the records and files of his office in the matter on appeal. The appellant may have summons issued for any other party in interest. The appeal shall be determined upon the records and files of the commissioner and upon such further evidence as may be adduced by the parties." (Emphasis supplied.)

It will thus be seen that under the Water Code as originally enacted only an applicant before the water commissioner had the right of appeal. This court so determined in Salt River Valley Water Users' Association v. Norviel, 29 Ariz. 360, 241 P. 503, and on rehearing in the same case, 29 Ariz. 499, 242 P. 1013. It is the position of petitioners that the added phraseology contained in the 1928 recodification purporting to allow an appeal to "any person whose rights are affected" in no wise operated to give the right of appeal to persons situated as the Salt River Valley Water Users' Association. The question to be determined here is what effect, if any, can be given to the 1928 enactment authorizing any person to appeal whose rights are affected by a decision of the commissioner. That the legislature has an unquestioned right to grant or withhold appeals is declared by this court in the case of Smith v. Trott, 36 Ariz. 166, 283 P. 726, 727: "* * * It is, of course, elementary that a right to appeal exists only for force of statute and is limited by the terms of the statute. Barth v. County of Apache, 18 Ariz. 439, 162 P. 62; Navajo-Apache, etc. Trust Co. v. Desmont, 17 Ariz. 472, 154 P. 206. And, where the right is neither given nor denied by the Constitution, it is within the discretion of the legislative authority to say in what cases and under what circumstances appeals may be taken. Hoeye v. Willis, 15 Ariz. 257, 138 P. 15."

We are aware of our duty to give effect to the amendment if possible. "It will be presumed that the legislature, in adopting the amendment, intended to make some change in the existing law, and therefore the courts will endeavor to give some effect to the amendment." 59 C.J. 1097. Speaking on the same...

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