Davis v. Campbell

• Citation: 24 Ariz. 77,206 P. 1078
• Decision Date: 26 May 1922
• Docket Number: Civil 1988
• Parties: WILLIAM J. DAVIS, Appellant, v. THOMAS E. CAMPBELL, ERNEST R. HALL, W. J. GALBRAITH, C. W. FAIRFIELD and RAYMOND EARHART, Constituting the State Land Department, RUDOLPH KUCHLER, State Land Commissioner, and LEO TRAPPMAN, Appellees
• Court: Supreme Court of Arizona

206 P. 1078

24 Ariz. 77

WILLIAM J. DAVIS, Appellant, v. THOMAS E. CAMPBELL, ERNEST R. HALL, W. J. GALBRAITH, C. W. FAIRFIELD and RAYMOND EARHART, Constituting the State Land Department, RUDOLPH KUCHLER, State Land Commissioner, and LEO TRAPPMAN, Appellees

Civil No. 1988

Supreme Court of Arizona

May 26, 1922

APPEAL from a judgment of the Superior Court of the County of Cochise. A. M. Sames, Judge. Reversed.

Messrs Boyle & Pickett and Mr. D. B. Morgan, for Appellant.

Mr. W G. Gilmore, for Appellees.

Messrs Kibbey, Bennett, Gust & Smith, Amici Curiae.

OPINION

ROSS, C. J.

The appellant, Davis, and the appellee, Trappman, regularly applied to the commissioner of the state land department to lease section 2, township 21 south, range 23 east, Cochise county; Davis' application being one for a renewal and Trappman's an original application. Upon hearing before the state land department, consisting of the appellees Campbell, Hall, Galbraith, Fairfield and Earhart, the lease was awarded Trappman. Davis appealed from the order and decision to the superior court of Cochise county. Upon the motion of the appellee, raising the question as to the existence of the right of appeal, the court granted the motion and dismissed the appeal. It is contended that the court committed error, and this appeal is prosecuted to settle the question.

The state land department was created by chapter 5 (known as the Land Code, and hereafter referred to as such), Second Special Session of the Legislature of 1915, for the administration of the state lands, and, among other powers, there was conferred on it the power under the Constitution and laws and such rules and regulations as the department might formulate, not inconsistent therewith, "to sell and lease all lands owned or held in trust by the state." Section 3, Land Code. By chapter 166, Laws of 1919, sections 30 and 31 of the Land Code, having to do especially with applications for, and the granting of, leases of state lands, were amended, and the Land Code, as originally written, not having provided for an appeal from the decision of the commissioner or the land department, there was added to chapter 166 two new sections, 3 and 4, giving the right of appeal. Omitting the amended section 30 as not essential to present the question in controversy, chapter 166 reads as follows:

Section 2.

"Sec. 31. Two or More Applicants. In case two or more applicants apply to lease the same land, the commissioner shall approve the application of the one who, after investigation or hearing by the commissioner, shall appear to have the best right to such lease, provided, that time or order of filing application shall not be a controlling or a determining factor in deciding who is entitled to such lease, but if it should appear that none of the applicants has any right or equities superior to those of another, the commissioner may, at a stated time, and after due notice to all such applicants, receive sealed bids submitted in accordance with such rules and regulations as the commissioner may adopt, and shall approve the application of the bidder, who in all respects, is eligible to hold a lease upon the land, and will pay the highest amount rental therefor; provided, that the commissioner shall have the right to reject all the bids submitted, and provided further, that any person occupying a United States homestead, lying adjoining, shall, upon application as in this act provided, have a preference right to lease such number of adjoining acres as is necessary for the personal use of such homesteader.

"Sec. 3. Any applicant to lease state land, may appeal from any decision of the commissioner of the state land department and from the state land department to the superior court of the county in which the land is situated, where said decision is adverse to said applicant in regard to the leasing of the land or any part thereof, described in said applicant's application.

"Sec. 4. The party appealing, his agent or attorney, shall give notice thereof in writing to said commissioner or land department from whose decision the appeal is being taken and to the adverse applicants to lease the land referred to in said decision within twenty (20) days from the date of the rendition thereof."

Those asserting that there is no right of appeal, from the land department to the superior court, do so on the ground that sections 3 and 4, supra, fail to set forth any rules or regulations or procedure for the exercise of the right. In other words, it is claimed that those two sections, purporting to give the right of appeal, are so incomplete and indefinite and uncertain in the manner of perfecting the appeal, certifying the record, and forming of issues, trial, and judgment, as not to be enforceable. The criticism of the lack of procedure, if all of it were contained within sections 3 and 4, would certainly be justified.

But where the right of appeal is expressly given, as in this case, it being remedial, the rule is to uphold it if possible. 3 C.J. 318, § 31; 2 R.C.L., p. 29, § 6; People v. Bank of San Luis Obispo, 152 Cal. 261, 92 P. 481; O'Donnell v. District Court, 40 Nev. 428, 165 P. 759. As is said in Cook v. Vickers, 141 N.C. 101, 53 S.E. 740:

"Where an appeal is expressly or impliedly given, the courts may look to other general statutes regulating appeals in analogous cases and give them such application as the particular case and the language of the statutes may warrant, keeping in view always the intention of the legislature."

There can be no question whatever that the legislature had in mind cases like this one when it enacted paragraph 5563, Civil Code, which reads as follows:

"Whenever, by any law of this state, the right to appeal to the superior court, from any order, judgment, decision or action of any officer, board, commission, or body, is granted and the manner of taking such appeal and the procedure thereon is not prescribed, the laws relating to the taking of appeals from courts of justices of the peace, and the procedure therein shall apply, in all particulars not inconsistent with the law granting such right of appeal."

We see no insurmountable difficulty in applying the statutory rule for appeals from courts of justices of the peace to appeals from the land department. Because the exact steps prescribed in taking an appeal from courts of justices of the peace, and the procedure thereon, cannot be followed in an appeal from the land department to the superior court is no reason why such procedure may not be adopted in so far as it is not inconsistent with the law governing proceedings before the land department. For instance, the fact that an appeal from a justice court is perfected by giving notice thereof in open court, or written notice within five days after the rendition of the judgment, and within ten days thereafter filing an appeal bond, whereas under the Land Code, as amended, the notice of appeal may be given any time within twenty days from the rendition of the decision by the commissioner or the land department, does not make the procedure, under the latter act, indefinite or uncertain. The justice of the peace is required to make out a true and correct copy of all the entries made in his docket in the cause, and certify thereto officially, and transmit the same, together with a certified copy of the bill of costs and original papers in the cause to the clerk of the superior court (paragraph 1344, Civ. Code), and by analogy the commissioner of the land department should certify to the superior court the minute entries in contests for leases, together with the original papers to the superior court, as he is given authority to authenticate all papers emanating from his office. Section 7, Land Code. The fact that it is impossible in an appeal from the land department to furnish the character of appeal bond provided for in an appeal from the justice court should be no impediment to the right of appeal. We know of no reason why the legislature may not provide for an appeal without requiring the appellant to give an appeal bond, and it seems from an inspection of the Land Code that it was probably the intention of the legislature that no bond on appeal should be given by the appellant. We say this because in that part of the Land Code providing for appeals from appraisements...