Duncan v. Mack

• Decision Date: 16 February 1942
• Docket Number: Civil 4421
• Citation: Duncan v. Mack, 59 Ariz. 36, 122 P.2d 215 (Ariz. 1942)
• Parties: JOHN A. DUNCAN, Superintendent of Liquor Licenses and Control of the State of Arizona, Appellant, v. ROY C. MACK, Appellee
• Court: Arizona Supreme Court

122 P.2d 215

59 Ariz. 36

JOHN A. DUNCAN, Superintendent of Liquor Licenses and Control of the State of Arizona, Appellant, v. ROY C. MACK, Appellee

Civil No. 4421

Supreme Court of Arizona

February 16, 1942

APPEAL from a judgment of the Superior Court of the County of Pima. H. G. Richardson, Judge. Judgment affirmed.

Mr. Joe Conway, Attorney General, and Mr. Edward P. Cline, Assistant Attorney General, for Appellant.

Messrs Stover G. Martin, for Appellee.

OPINION

LOCKWOOD, C.J.

On January 4, 1941, Cedric E. Price, who was at that time the owner of a spirituous liquor license, with location at 1003 East Broadway, Tucson, Arizona, filed an application with John A. Duncan, superintendent of liquor licenses and control, defendant, to transfer such license to Roy C. Mack petitioner, and to move its location to 3300 South Sixth Avenue. Upon receipt of the applications by defendant, copies were forwarded to the clerk of the board of supervisors of Pima County, and duly posted at the proposed new location. On February 3 the supervisors considered the application to transfer the license to the new location together with all protests filed against the transfer, and disapproved it. A copy of this order was transmitted to the state liquor department, and on March 19 defendant held a hearing, at which time witnesses, both approving and protesting the transfer, were heard. On March 21 defendant made an order finding that the public convenience did not require and would not be substantially served by transferring the location of the license, and ordered that the application be denied. Within ten days thereafter petitioner appealed to the superior court of Pima County, as provided by law, and a trial was had at which considerable new evidence was taken. At the close of the case the court ordered that the application of petitioner be granted, and this appeal was taken.

There are a number of questions presented by the appeal, which we will consider as seems proper. The first, and most important, is the nature of an appeal to the superior court from the decision of the superintendent of liquor licenses and control denying the issuance or transfer of a license. Sections 72-108 and 72-109, Arizona Code 1939, read, so far as material, as follows:

"Issuance of licenses. -- (a) The superintendent shall issue a spirituous liquor license only upon satisfactory showing of the capability, qualifications, and reliability of the applicant, and that the public convenience requires and will be substantially served by such issuance....

"(c) Any spirituous liquor license shall be transferable as to the person licensed or as to any location within the same county, upon payment of a transfer fee of twenty-five dollars ($25.00) and after application in the manner provided for original application for a license. The transferee shall have the qualifications required of an original applicant. No transfer shall be made while any charge for violation of this act or a rule or regulation of the superintendent is pending, and no transfer as to location shall be made unless it is shown to the satisfaction of the superintendent that the public convenience requires and will be substantially served thereby."

"Revocation and suspension. --... (c) The decision of the superintendent shall be final in any matter relating to the issuance, renewal, suspension, or revocation of a license, unless the person aggrieved, within ten (10) days after the date of the decision, files an appeal with the superior court of the county in which the licensed premises are located. In such appeal, the court shall hear and determine the matter de novo, not more than ten (10) days after the date of filing the appeal. Pending determination of the appeal, the decision and order of the superintendent shall remain in full force and effect, and may not be superseded."

The manner of taking appeals to the superior court is governed by the provisions of sections 19-303, 19-304 and 20-707, Arizona Code 1939. These sections, so far as material, read as follows:

"Appellate jurisdiction. -- The superior court shall have appellate jurisdiction in all action from the courts of justices of the peace, inferior court officers and boards which are allowed by law;..."

"Manner of appeal where not otherwise prescribed. Whenever the right of appeal to the superior court, from an officer, board or commssion 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 shall apply insofar as conformable."

"Trial de novo on appeal. -- Upon an appeal to the superior court from a justice of the peace, or other inferior court, the case shall be tried de novo."

What is meant under our statutes by a trial "de novo"? The literal meaning of the word is a second time. Parker v. Lewis, 45 Okl. 807, 147 P. 310. Or in the same manner; with the same effect. Powell v. Nevada, C. & O. Ry., 28 Nev. 305, 82 P. 96.

We have had a somewhat similar question under consideration in the case of Davis v. Campbell, 24 Ariz. 77, 206 P. 1078, 1081, and said, quoting from McCall v. Marion County, 43 Or. 536, 73 P. 1030, 75 P. 140:

"'... The statute makes no provision as to the mode by which that question shall be tried on the appeal, and therefore the rules of practice and procedure which prevail in ordinary actions at law must be the guide. Elliott, Roads and Streets (2d Ed.) Par. 362. The reasonable presumption is that when the Legislature gave the right of appeal, and made no provision for the procedure thereon, it meant that the practice in ordinary actions and proceedings in the circuit court should apply. The cause on appeal must be tried as an ordinary action at law, without formal pleadings, however, and must necessarily result in a judgment either for or against the appellant.'"

It has always been the practice in Arizona in appeals from a justice court to a superior court that the case be tried as though it were one of original jurisdiction in the superior court, and in Burris v. Davis, 46 Ariz. 127, 46 P.2d 1084, we have held that to be the correct rule in considering similar language in regard to criminal appeals, 44-2604, Arizona Code 1939. It would, therefore, seem to be the law of Arizona that on a trial de novo, where by our statute an appeal is allowed from the action of an administrative board to the superior court, in the absence of a specific statute to the contrary, the case should be tried in all manners as though the superior court were the court of original jurisdiction.

Counsel for defendant claim that we have held otherwise in the case of Manning v. Perry, 48 Ariz. 425, 62 P.2d 693, 695, and that the decision of the department on the facts should be accepted by the court, unless there is no reasonable evidence to sustain it, in the same manner as we accept the decision of the industrial commission on the facts. We think counsel misinterprets the language which we used. We said:

" If it investigates and determines which of two or more applicants appears to have the best right to a lease, its decision should be accepted by the court unless it be...