Hunt v. Norton

• Decision Date: 20 September 1948
• Docket Number: 5070
• Citation: 68 Ariz. 1,198 P.2d 124
• Parties: HUNT et al. v. NORTON et al
• Court: Arizona Supreme Court

198 P.2d 124

68 Ariz. 1

HUNT et al. v. NORTON et al

No. 5070

Supreme Court of Arizona

September 20, 1948

Appeal from Superior Court, Pima County; Henry C. Kelly, Judge.

Certiorari proceeding by Oakley T. Norton and others to annul an order by Joe Hunt and others, as members of the State Tax Commission, authorizing the board of supervisors of Pima county to create liabilities exceeding the amount fixed by the county budget for recreational purposes. From a judgment annulling the order, defendants appeal.

Affirmed.

Evo De Concini, Atty. Gen., and Chas. D. McCarty, Asst. Atty. Gen for appellants.

Fred W Fickett, William S. Dunipace and Robert S. Tuller, all of Tucson, for appellees.

Udall, Justice. Stanford, C. J., and LaPrade, J., concur.

OPINION

Udall, Justice.

This is an appeal by the members of the State Tax Commission of Arizona (these defendants-appellants will be hereinafter referred to as the Commission) from a judgment of the superior court of Pima County. It involves the validity of a judgment of that court, in a certiorari proceeding initiated by plaintiffs (appellees) as taxpayers, wherein there was annulled and set aside an order of the Commission authorizing the Board of Supervisors of Pima County to create liabilities in the amount of $ 100,000 over and above the 1947-48 county budget, as an emergency measure for recreational purposes.

The Commission's assignments of error may be summarized as follows: that the court erred first in denying its motion to quash the writ of certiorari and later in entering judgment for the plaintiff taxpayers for the reasons that it appeared from the face of plaintiffs' complaint and from the Commission's return and response to the writ that said Commission had regularly exercised the jurisdiction conferred upon it by the laws of Arizona. In support of these assignments three propositions of law are advanced:

(1) A review on certiorari is limited to the question whether an inferior tribunal, acting in a judicial capacity, has exceeded its jurisdiction.

(2) A mistake of law or fact by an inferior tribunal does not constitute an excess of jurisdiction.

(3) Where the jurisdiction of an inferior tribunal is dependent upon a stated fact situation and the inferior tribunal is specifically authorized and directed to determine whether such fact situation does exist, a finding by the inferior tribunal that such fact situation does exist is not subject to judicial review except where an appeal has been provided by law.

There is no dispute as to the first proposition of law. It is primarily the contention of the Commission that the legislature has expressly conferred jurisdiction upon it to determine whether an emergency exists, and that the courts, in certiorari proceedings, can not review the sufficiency of the evidence to determine whether such jurisdictional facts are present. If this position is sound there would seem to have been no occasion for the legislature to amend the statute, sec. 73-504, A.C.A.1939, to provide: "* * * Upon the hearing, at the request of the applicant or any interested taxpayer, a stenographic transcript shall be made of the evidence produced to establish the existence or nonexistence of the cause specified in the application. * * *" Laws 1945, ch. 98, sec. 3, p. 246.

Our constitutional and statutory provisions relative to certiorari are comparable to those of California and other neighboring states. Specifically, in this jurisdiction the writ of certiorari is authorized by sections 1 and 6 of article 6, of the constitution of Arizona, and the procedure in a case such as this is governed by Chap. 28, Art. 1, section 28-101 et seq., A.C.A.1939. The purpose of the writ is to review the proceedings and acts of inferior tribunals, boards or officers exercising judicial, or quasi judicial, functions to determine whether their jurisdiction has been exceeded. The scope of the hearing is set forth in sec. 28-104: "Extent of review. -- The review upon the writ shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer."

Certiorari may be granted only when two facts appear: (a) the jurisdiction of the inferior tribunal must have been exceeded, and (b) there is neither an appeal nor a plain, speedy and adequate remedy. Sec. 28-101, A.C.A.1939. The second fact, of course, is present. The ultimate question before us then is: did the Tax Commission exceed its jurisdiction by declaring the existence of an emergency and by authorizing the expenditure of this $ 100,000. However, in order to answer this question we must first decide whether the trial court was entitled to examine the evidence adduced in order to determine the Commission's jurisdiction in declaring that an emergency in fact existed. Certainly the Commission cannot obtain jurisdiction merely by declaring itself to have jurisdiction. If the plaintiffs as taxpayers had no right to challenge this ruling on the part of the Commission, by going behind their order, then the judgment of the lower court should be reversed.

The best statement we have been able to find of the rules governing the matter of the courts' consideration of questions of fact in certiorari proceedings is contained in 14 C.J.S., Certiorari, § 172:

"a. In General

"As a general rule, questions or findings of fact in the lower court are not reviewable on certiorari, although such review may be permitted by statute or local practice.

"The general rule is that, in the absence of statute or local practice otherwise, questions or findings of fact, in the inferior tribunal, are not reviewable on certiorari, and that evidence which is made a part of the record cannot be examined to determine whether or not it justified the findings on which the decision or judgment was made; nor will rulings on questions of fact, within the inferior tribunal's jurisdiction, be reviewed. A finding or decision of the inferior tribunal, within its jurisdiction, on facts supported by competent and substantial evidence, is binding on the reviewing court and will not be reviewed by it. * * *"

"b. Weight and Sufficiency of Evidence

"(1) General Rule

"As a general rule, the weight and sufficiency of the evidence as to the facts on which the lower court's decision or finding was based, will not be reviewed.

"Where no jurisdictional fact is in dispute, the review on certiorari, as a general rule, does not extend to the consideration of the probative force of conflicting testimony, and, therefore, where there is some evidence, the weight and sufficiency thereof as to the facts on which the determination below was based, ordinarily, will not be considered. * * *" (Emphasis supplied.)

"c. Examination of Evidence to Determine Jurisdiction

"The sufficiency of the evidence may be reviewed in determining jurisdictional facts.

"As an exception to the general rule that the sufficiency of the evidence will not be reviewed, the sufficiency of the evidence may be inquired into in determining whether jurisdictional facts were or were not proved, or whether the lower tribunal had exceeded its jurisdiction. This exception arises out of the most important office and function of the writ -- the keeping of inferior courts and tribunals within proper bounds. If the decision of the inferior tribunals as to the sufficiency of the evidence to establish jurisdictional facts was not reviewable, certiorari would be of no avail as a remedy against an assumption of jurisdiction. For the purpose of enabling the reviewing court to determine whether jurisdictional facts were established, it may require a return to be made of the evidence on which such facts are based. * * *" (Emphasis supplied.)

Statements to the same effect may be found in the following texts: 10 Am.Jur., Certiorari, sections 3, 13 and 19; 4 Cal.Jur., Certiorari, sec. 71, p. 1110. In the footnotes to the text statements may be found numerous decisions, from many jurisdictions, supporting this principle. Typical of the statement of the exception to the general rule are the following quotations:

"* * * It is a fair summary of the decisions of this state, dealing with the scope of statutory certiorari, to say that the evidence adduced upon the hearing before an inferior board or tribunal having limited jurisdiction may be brought up to the reviewing court upon certiorari for the sole purpose of determining whether or not, from the evidence before it, the finding of a jurisdictional fact by such inferior board or tribunal is sustainable, and if there be no evidence to sustain such decision it must be annulled * * *."

"* * * But when the board or tribunal in question has power to act only upon the establishment of a certain set of facts which necessarily form the foundation of jurisdiction, and therefore, may be denominated jurisdictional facts, and there is no evidence whatever to show the existence of such facts, a finding by such board or tribunal that those facts do exist cannot foreclose inquiry by a court of competent jurisdiction, upon certiorari, as to whether or not the order sought to be reviewed is without any evidence to support it, or is absolutely contrary to the uncontradicted and unconflicting evidence upon which it purports to rest. * * *" Garvin v. Chambers, 195 Cal. 212, 232 P. 696, 700. See also Security-First Nat. Bank of Los Angeles v. Board of Sup'rs, 135 Cal.App. 208, 26 P.2d 862, 863; Wilde v. Superior Court of San Diego County, 53 Cal.App.2d 168, 127 P.2d 560; Bennett v. Superior Court in and for San Diego County et al., 73 Cal.App.2d 203, 166 P.2d 318; State Board of Dental Examiners et al. v. Savelle, 90 Colo. 177, 8 P.2d 693, 82 A.L.R. 1176; Crocher v....