Mendelsohn v. Superior Court in and for Maricopa County, 5803

• Decision Date: 07 October 1953
• Docket Number: No. 5803,5803
• Parties: . Supreme Court of Arizona
• Court: Arizona Supreme Court

Page 983

261 P.2d 983

76 Ariz. 163

MENDELSOHN et al. v. SUPERIOR COURT IN AND FOR MARICOPA COUNTY et al.

No. 5803.

Supreme Court of Arizona.

Oct. 7, 1953.

Moore & Romley and John M. Levy, Phoenix, for petitioner mendelsohn.

Ross F. Jones, Atty. Gen., by James P. Bartlett, Asst. Atty. Gen., for petitioner Duncan.

Minne & Sorenson, Phoenix, for respondents.

UDALL, Justice.

This is an original proceeding for a writ of prohibition requested by petitioners Norman Mendelsohn, hereinafter called Mendelsohn, and John A. Duncan, State Superintendent of Liquor Licenses and Control, hereinafter called the superintendent, to prevent the Superior Court of Maricopa County, and the Honorable Henry S. Stevens, as judge thereof, from assuming jurisdiction and attempting to hear and determine the matters purportedly at issue on appeal from an order of the superintendent. Statutory notice of application for an alternative writ of prohibition was given the respondent, who then appeared and answered. The alternative writ issued.

The material facts are these: On February 13, 1953, Mendelsohn made application to the superintendent for permission to transfer the Series 9 liquor license held by him at 1402 East Washington Street in the city of Phoenix, Arizona, to a new address, 2412 East Broadway, Phoenix, Maricopa County, and to conduct his business at this new address.

Pursuant to Section 72-105 A.C.A.1939, as amended, copies of this application were filed with the clerk of the board of supervisors of Maricopa County, and posted at the new premises proposed to be licensed.

Within the ensuing twenty days allowed by the statute, certain remonstrants (whose qualifications are set out hereinafter) filed their written objections to the transfer with the board of supervisors and with the superintendent. On March 19th, the board of supervisors held a hearinv and recommended approval of Mendelsohn's application to transfer his license.

The recommendation of the board of supervisors, and the filed arguments for and against transferring the license, were transmitted to the superintendent, who on the 6th day of April approved the application to transfer the license.

On April 9, 1953, objectors Pearl Coffer, Harry W. Coffer, N. Marshall, F. Marshall, Gertrude E. Douglas, Mary E. Cason, and Alf Douglas hereinafter called remonstrants, filed in the Superior Court of Maricopa County, cause No. 75384, styling their pleading 'Complaint', styling themselves 'Plaintiffs and Appellants', and styling Mendelsohn and the superintendent 'Defendants and Appellees'. Remonstrants therein contend inter alia that the order granting the transfer of license is wrongful and unlawful because the public convenience does not require and will not be substantially served thereby.

In their notice of appeal, served upon Mendelsohn and the superintendent, remonstrants state, 'This appeal is made pursuant to Section 72-109, Arizona Code 1939, as amended.' In their application for a writ of prohibition, Mendelsohn and the superintendent argue that this section confers no right of appeal upon remonstrants, therefore the proposed assumption of jurisdiction by the Superior Court of Maricopa County is a usurpation of power.

It is settled law that the right of appeal exists only by force of positive enactment of law, Him Poy Lim v. Duncan, 65 Ariz. 370, 181 P.2d 357, and that prohibition will lie to prevent an inferior tribunal from entertaining an appeal over which it has no jurisdiction, Duncan v. Superior Court of Pinal County, 65 Ariz. 193, 177 P.2d 374.

The Issue

Thus, we are faced squarely with this question: Under the liquor laws of Arizona, Chapter 72, Art. 1, A.C.A.1939, where the superintendent has granted an application for transfer of a liquor license, do the remonstrants opposing such transfer have the right to appeal to the superior court from the order of the superintendent?

The Statute

Section 72-109(c), A.C.A.1939, provides:

'The decision of the superintendent shall be final in any matter relating to the issuance, transfer, 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 unless otherwise ordered by the court of jurisdiction.'

In the briefs the greatest battle rages round the meaning of the phrase 'the person aggrieved'. The word 'person' is defined in Section 72-101 of the Act as follows, "Person' includes partnership, association, company or corporation, as well as a natural person'. Mendelsohn makes much of the fact that 'person' is singular and not plural, but Section 1-103, A.C.A. 1939, setting forth the general rules of statutory construction in Arizona, refutes any argument based on this premise by telling us the singular does include the plural.

The Phrase

We find that whether the legislature has given remonstrants the right to appeal cannot be determined by looking only to the phrase 'the person aggrieved'. Our exhaustive examination of the law and cases in Words and Phrases 'Aggrieved' and 'Person Aggrieved', Corpus Juris Secundum 'Aggrieved', and Black's Laws Dictionary, 3rd ed., 'Aggrieved Party', served to remind us of what Humpty Dumpty told Alice--'When I use a word, it means just what I choose it to mean--neither more nor less.' Chapter Six, Through the Looking Glass, Charles Dodgson. We find the phrase to have one meaning in probate procedure and quite another in sanity hearings, etc. For this reason, Justice Lockwood's construction of the phrase in Burmister v. City of Prescott, 38 Ariz. 66, 297 P. 443, is not in point--the fact situation is too dissimilar. Apart from its syntactical and sociological setting the phrase has no meaning. There is nothing intrinsic and peculiar to the phrase, qua phrase, that leads one unwaveringly to one conclusion or the other. Accordingly, the question of whether these remonstrants have the right to appeal must be bottomed on something more substantial than a pedantic construction of two adjectives and one noun.

Analysis of Previous Decisions

In the case of Stanton v. Superior Court, 55 Ariz. 514, 103 P.2d 952, the facts were that one M. R. Patton had applied to the superintendent of liquor licenses and control for a license for the wholesale distribution of liquor. Stanton, who held such a license, was the remonstrant in the proceedings before the superintendent, and after the latter ordered that the license should issue, Stanton filed his appeal to the superior court.

The reporter's transcript in that case shows that counsel for the superintendent moved to dismiss the appeal upon the same ground relied upon here, to wit, that the remonstrant was not 'the person aggrieved' within the meaning of the appeal provisions of the Spirituous Liquors Act. The superior court reserved a ruling on this motion, then after taking evidence, proceeded to determine the matter on its merits and affirmed the action of the superintendent in granting the license. By necessary implication, the superior court in entering its judgment must have determined that it had jurisdiction of the appeal.

By certiorari the matter was brought before this court for review upon an allegation that the lower court was without jurisdiction in the entry of said judgment in that there was no competent evidence to support its finding that the public convenience required and would be substantially served by the issuance of the license applied for. Stanton contended that the legislature intended to establish as the controlling principle in the issuance of liquor licenses, the system of regulated monopoly. We rejected this contention and held that the superintendent and the superior court did not abuse their discretion or exceed their jurisdiction in granting Patton a liqour license. The question of whether Stanton had the right of appeal to the superior court in the first instance was not presented to us, nor was it directly decided. Apparently it was taken for granted the lower court had jurisdiction to entertain the appeal and that a review by certiorari was proper in this court.

Lane v. Ferguson, 62 Ariz. 184, 156 P.2d 236, was an original mandamus action brought by an unsuccessful applicant for a liquor license to require respondent (Judge Ferguson) to honor a stipulation and assign applicant's appeal to the superior court from the superintendent's ruling, to the judge agreed upon by the parties. The alternative writ was made peremptory, and inter alia we held that the remonstrants were not parties ipso facto to an appeal by the applicant, and that while they might intervene in such appeal, they took the court and the judge as they found them. But unfortunately, some wording in the Lane opinion infers that remonstrants do not have the right to 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 proceeding. By analogy it is consonant with our conclusion in the instant case. There appellee Duncan moved to dismiss the appeal on the ground that appellant Mayberry was neither a 'party beneficially interested' under the certiorari statute, nor a 'party aggrieved' within the meaning of the judgments appealable statute. By a minute order the motion to dismiss was denied, and the appeal was then determined on its merits. Thus we held that one who was not a party to the proceedings before the superintendent--whose status was simply that of a member of the public but whose...