Mayberry v. Duncan

Decision Date27 April 1949
Docket Number5064
Citation68 Ariz. 281,205 P.2d 364
PartiesMAYBERRY v. DUNCAN
CourtArizona Supreme Court

Appeal from Superior Court, Navajo County; Don T. Udall, Judge.

Proceeding by A. W. Mayberry, for himself and all other persons similarly situated, for a writ of certiorari to review proceedings of John A. Duncan, as superintendent of the state department of liquor licenses and control in the issuance of a license to Robert Hunsick, Jr., and transfer thereof to Ben. G. Armer. From the judgment, petitioner appeals.

Reversed with directions.

P. H Brooks, of Winslow, for appellant.

Evo DeConcini, Atty. Gen., and Chas. D. McCarty, Asst. Atty Gen., for appellee.

Blake Superior Judge. Udall, Stanford and Phelps, JJ., concur. LaPrade, C. J., not participating. DeConcini, Justice, former Attorney General, announced his disqualification and the Honorable Benjamin Blake, Judge of the Superior Court of Graham County was called to sit in his stead.

OPINION

Blake, Superior Judge.

This is an appeal from a judgment of the superior court of Navajo county affirming the issuance of a liquor license to one Robert Hunsick, Jr., and the subsequent transfer of said license to Ben. G. Armer.

The action which was instituted by A. W. Mayberry, for himself and all other persons similarly situated, petitioned the superior court of Navajo county for a writ of certiorari seeking a review of the proceedings of John A. Duncan, as Superintendent of the State Department of Liquor Licenses and Control, in the issuance and transfer of said license. The parties will be hereinafter referred to as appellant and appellee.

Writs were issued directing the Navajo County Board of Supervisors and appellee to certify to the court all records pertaining to the license in question. Later further orders for additional returns were issued and supplemental returns were made and a hearing was then had to determine whether appellee had acted without or in excess of his jurisdiction in issuing the original license and approving the subsequent transfer.

First we dispose of certain contentions raised by appellee. It is urged that appellant is barred by laches from maintaining this action. Clearly there is no merit to this plea as the application for a writ of certiorari was made within two months from the date of the order granting the transfer of the license to Armer, and only slightly more than ten months from the date of the issuance of the original license to Hunsick.

In the proceedings before the lower court the appellee moved to quash the writ of certiorari for the reason (among others) that Mayberry "is not a party beneficially interested or party to the proceedings." This motion was denied. The trial court made no finding of fact on any of the issues presented and the judgment finally entered does not disclose the basis upon which the action of the superintendent in the original issuance of the liquor license to Hunsick and the subsequent transfer to Armer was affirmed. When the record on appeal reached this court the appellee moved to dismiss the appeal upon the grounds: (a) that appellant Mayberry was not a "party beneficially interested" within the meaning of section 28-102, A.C.A.1939, and therefore was not entitled to relief by certiorari; (b) that said appellant is not a "party aggrieved" within the meaning of section 21-1701, A.C.A.1939, and hence is not entitled to maintain this appeal. We fully considered the matter and on April 8, 1948, entered a minute order (without a formal opinion) denying said motion to dismiss the appeal. This unanimous ruling of the court became the law of the case and we are not disposed to reconsider our action but rather proceed to a determination of the crucial question whether the appellee acted without or in excess of his jurisdiction.

The appellant presents the following assignments of error:

"1. The Court erred in its Judgment affirming the proceedings of respondent in issuing the liquor license in question, because said license is in excess of the number authorized by Statute and respondent exceeded his jurisdiction in issuing the same.

"2. The Court erred in the Judgment affirming the proceedings of respondent in issuing the liquor license in question, because there was not a proper filing of the application nor posting notice on the premises wherein liquor was proposed to be sold, as required by Statute."

As to this last assignment, after carefully examining the record we have reached the conclusion that there was a substantial compliance with the statute as to these preliminary procedural steps, hence upon this ground the appellee was not deprived of jurisdiction.

As to the first assignment of error regarding the number of liquor licenses legally allowable in Navajo county, it is the contention of appellant that the license in question in this case exceeds the statutory limit and hence the appellee acted without jurisdiction in issuing the same.

Section 72-107, A.C.A.1939, which limits the number of liquor licenses, insofar as pertinent, reads as follows:

"Restrictions on issuance of licenses. -- (a) The total number of spirituous liquor licenses issued within a single county shall not exceed:

"1. Hotel and on-sale retailers' licenses providing for consumption on the premises of all spirituous liquors: * * * 1c. in a county having a population of less than twenty-five thousand (25,000), one (1) license for each one thousand (1,000) inhabitants.

"2. * * *

"(b) The population of a county shall be deemed...

To continue reading

Request your trial
9 cases
  • Marquez v. Rapid Harvest Co., 7197
    • United States
    • Arizona Supreme Court
    • December 30, 1960
    ...It is a rule of statutory interpretation that statutes must be interpreted in conformity with language used therein. 1 Mayberry v. Duncan, 68 Ariz. 281, 205 P.2d 364. Moreover, if the language of a statute is plain and unambiguous, and can be given but one meaning which does not lead to an ......
  • Mendelsohn v. Superior Court in and for Maricopa County, 5803
    • United States
    • Arizona Supreme Court
    • October 7, 1953
    ...appeal an adverse ruling to the superior court. We submit this was dicta, because this issue was not before the court. Mayberry v. Duncan, 68 Ariz. 281, 205 P.2d 364, 365, was a liquor license matter brought before us by an appeal from a judgment of the trial court in a certiorari proceedin......
  • Garcia v. Arizona State Liquor Bd.
    • United States
    • Arizona Court of Appeals
    • April 9, 1974
    ...finding by the Board on every requirement of A.R.S. § 4--101, subsec. 4e. The Arizona Supreme Court has stated in Mayberry v. Duncan, 68 Ariz. 281, 205 P.2d 364 (1949) that substantial compliance with the statute in regard to applications would be sufficient. While the better practice for t......
  • State ex rel. Morrison v. Thomas
    • United States
    • Arizona Supreme Court
    • May 14, 1956
    ...quota constituted an act in excess of said official's jurisdiction, and that as a result certiorari would lie. Mayberry v. Duncan, 1949, 68 Ariz. 281, 205 P.2d 364. Unless there is an essential difference as far as the number of liquor licenses permitted by law, between the statutory restri......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT