Lane v. Ferguson

Decision Date24 February 1945
Docket NumberCivil 4790
Citation62 Ariz. 184,156 P.2d 236
PartiesWALTER G. LANE, Petitioner, v. W. E. FERGUSON, as Judge of THE SUPERIOR COURT OF NAVAJO COUNTY, Respondent
CourtArizona Supreme Court

ORIGINAL proceeding in mandamus.

Alternative writ made peremptory.

Mr Edward P. Cline, and Mr. Frank E. Tippett, for Petitioner.

Judge W. E. Ferguson, in Propria Persona.

Mr. Guy Axline, for Respondent.

LaPrade J. Stanford, C. J., and Morgan, J., concur.

OPINION

LaPrade, J.

On January 10, 1945, this court issued an alternative writ of mandamus directed to the respondent W. E. Ferguson as Judge of the Superior Court of Navajo County, State of Arizona, ordering respondent to call in and assign Cause No. 5290, pending in the Superior Court of Navajo County, entitled Walter G. Lane, Appellant, versus John A. Duncan, Appellee, as Superintendent of Liquor Licenses and Control of the State of Arizona, to the Honorable Willian Truman, Judge of the Superior Court of Pinal County, State of Arizona, for him to hear all matters in said cause, and further directing respondent to vacate any and all orders entered thereon subsequent to December 19, 1944, purporting to assign said cause and the hearing thereof to any judge other than the said Honorable William Truman, or that respondent show cause to this court why he had not done so. On return date, respondent filed a motion to quash the alternative writ, a motion to dismiss, and answer. The alternative writ was ordered issued upon the verified petition of the petitioner Walter G. Lane. The petition, among other things, set up that petitioner had filed his application with the State Department of Liquor Licenses and Control, asking for the issuance to petitioner of a liquor license to be used in the town of Winslow, Navajo County, Arizona; that said application was disapproved by John A. Duncan, superintendent of said department; that petitioner filed an appeal from the decision and order of said superintendent to the Superior Court of Navajo County; that thereafter petitioner filed an affidavit of bias and prejudice against respondent, thereby seeking a change of judge to hear and determine said appeal; that on the 13th day of December, 1944, and before any action had been taken by respondent toward calling in another superior court judge to hear said proceeding, there was filed in said proceeding a stipulation signed by the Attorney General as counsel for John A. Duncan as Superintendent of Liquor Licenses and Control of the State of Arizona, who had been designated as "defendant-appellee" in said appeal in the lower court, and Edward P. Cline and Frank E. Tippett, as attorneys for Walter G. Lane, who in said cause in the superior court had been designated as "plaintiff-appellant." This stipulation provided that the proceeding should be heard before the Honorable William Truman, Judge of the Superior Court of the State of Arizona in and for the County of Pinal. The petition further set up that on December 14th a Motion for Leave to Intervene in said action was filed therein by Charles C. Boling and Calvin D. Shope as citizens and protestants in their own behalf and in behalf of certain other protestants. There was also tendered with said motion a written instrument entitled "Answer in Intervention." It was further made to appear that on the trial date respondent notified counsel for the appellant Walter G. Lane and counsel for the intervenors that he would not honor the stipulation, and, over the objection of petitioner, set said cause for hearing on December 19th and assigned the same to the Honorable Levi S. Udall, Judge of the Superior Court of Apache County. On December 19th, Judge Udall heard arguments challenging his jurisdiction to preside in the proceeding, whereupon he directed the Clerk to enter an order "that because of the stipulation in the matter that Judge Udall has no right to preside in the matter, and he hereby reassigns the case to W. E. Ferguson, resident judge." Thereafter on January 3, 1945, respondent assigned said action on appeal in the Superior Court to the Honorable H. L. Russell, Judge of the Superior Court of Coconino County, and set the case for trial on January 12th.

The respondent in his motion to dismiss and answer challenged the sufficiency of the allegations in the petition for the issuance of the writ upon the ground and for the reason: (1) That the petition failed to state facts sufficient to constitute any grounds for relief or cause of action against the respondent; (2) that petition failed to disclose the names of the real parties in interest; (3) that it was not alleged that protestants (attempting intervenors) had joined in the stipulation to assign said proceeding to Judge Truman.

At the time of the hearing in this court of respondent's motion to dismiss and answer, it was admitted by counsel that the superintendent at the time he received the application for the license forwarded the same to the City Clerk of Winslow, as provided for in Section 72-105, Arizona Code Annotated 1939; that within the time required the attempting intervenors and others filed written objections with the City Clerk to the issuance of the license; that thereafter the City Council entered an order approving and recommending that the license issue; and, that after receipt of this order, the superintendent held a hearing at which time witnesses both approving and protesting the transfer were heard. The superintendent made an order finding that the public convenience did not require and would not be substantially served by the issuance of the license and ordered that the application be denied. No attempt was made to serve the notice of appeal on any of the protestants that had appeared before the superintendent.

It is the contention of the respondent that a stipulation or agreement with respect to a change of judge must be entered into by all of the parties interested in the proceeding, and that a "party" means anyone having an interest in the result of the case or action; that protestants, in appearing before the superintendent and objecting to the issuance of the license, became "parties" whose interest would be directly affected by the proceeding on appeal; that the superintendent is not in any sense of the term a party to the proceeding or appeal from his order and decision; and, that as a matter of law he cannot stipulate as to what judge can hear the proceeding, nor can he stipulate to the facts, citing Honstain v. Board of Com'rs, 52 Mont. 391, 158 P. 476; State ex rel. More v. Dist. Court, 49 Mont. 577, 143 P. 1193.

Section 21-107, Arizona Code Annotated 1939, provides for the disqualification of a judge by affidavit of bias and prejudice. Section 21-109, Arizona Code Annotated 1939, in part, reads as follows:

". . . If the parties agree upon a . . . judge, then such . . . judge shall be selected."

It is the contention of petitioner that upon the filing of the affidavit hereinabove referred to respondent had no further jurisdiction in the matter, and that his sole authority was limited to assigning the matter to the judge agreed upon in the stipulation. He further contends that since the affidavit of bias and prejudice was on file before any action had been taken upon the petition to intervene the only parties in the case who could stipulate were the petitioner and the appellee-defendant, John A. Duncan.

The authority for an appeal from the decision and order of the superintendent is contained in section 72-109, Arizona Code Annotated 1939. Subsection (c) thereof reads as follows:

"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." (Italics ours.)

The general procedure for taking appeals to the superior court from an inferior tribunal is governed by the provisions of Sections 19-303, 19-304, and 20-707, Arizona Code Annotated 1939. The last named section reads as follows:

" 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."

In the case of Duncan v. Mack, 59 Ariz. 36, 122 P.2d 215, 218, we considered the method and nature of an appeal to the superior court from an order of the Superintendent of Liquor Licenses and Control. We there said:

"We hold, therefore, that on appeals from an inferior court or administrative board to the superior court, unless the statute expressly provides otherwise, the case will be heard by the superior court in the same manner as though it were an original proceeding in that court, . . . ."

It thus appears that on such...

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