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Docket Number

No. 5533.

Advocates

Fred O. Wilson, Atty. Gen., Maurice Barth, Asst. Atty. Gen., and Knapp, Boyle, Bilby Thompson, and Arthur Henderson, of Tucson, for petitioner. Conner Jones, and Warren H. Lynch, of Tucson, for respondent.

Judges

UDALL, Chief Justice.

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Smart Summary

Summary of Opinion: COX, State Real Estate Commissioner, v. SUPERIOR COURT IN AND FOR PIMA COUNTY et al.

Factual and Procedural Background

This is an application for an original writ of prohibition directed to the Honorable Lee Garrett, judge of the superior court of Pima County, to prevent the superior court from taking jurisdiction over a proceeding that originated before W.M. Cox, State Real Estate Commissioner. Grantwood Cemeteries, Inc. applied to the commissioner under section 67-1731 et seq., A.C.A. 1939 (The Arizona Real Estate Act), to establish a cemetery and subdivide certain land in Pima County. After a hearing, the commissioner denied the application and prohibited sale of the property. Grantwood Cemeteries appealed the commissioner's findings and order to the superior court pursuant to section 67-1739, A.C.A. 1939. The petitioner (the commissioner) sought prohibition to prevent the superior court from exercising jurisdiction; the superior court (respondent) moved to dismiss the petition for writ of prohibition.

Legal Issues Presented

Whether the legislature can vest the superior courts with appellate jurisdiction over proceedings originating before an administrative body.
Whether the silence of the Arizona Constitution regarding legislative authorization to create such appeals should be construed as an implied prohibition on the legislature's power to enlarge the superior court's appellate jurisdiction.

Arguments of the Parties

Petitioner's Arguments

The legislature cannot expand or extend the appellate jurisdiction of the superior courts because Article 6, Section 6 of the Arizona Constitution prescribes the superior court's appellate jurisdiction and the rule expressio unius est exclusio alterius should be applied.
The petitioner relied on several out-of-state and federal decisions (listed in the opinion) to support the contention that the legislature lacks authority to vest the superior court with appellate jurisdiction in matters originating before administrative bodies.

Respondent's Arguments

The respondent relied on prior pronouncements of this court (Arizona cases cited in the opinion) establishing that the right to appeal is created by the Constitution or statute and that, when not prohibited by the Constitution, it is within the legislature's discretion to grant or limit appeals.
The respondent relied particularly on Earhart v. Frohmiller and related Arizona authority to argue that state constitutions are limitations on legislative power (not grants of power), that the legislature retains plenary power except where expressly prohibited, and that the rule of expressio unius is not persuasive in this context.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
North Point Consol. Irr. Co. v. Utah S.L. Canal Co., 14 Utah 155, 46 P. 824	Cited by petitioner to support limitation on legislature's power to expand appellate jurisdiction (expressio unius est exclusio alterius).	The court stated this and similar out-of-state authorities could be readily distinguished or conflicted with prior Arizona holdings and did not adopt them as controlling.
Attorney General of Utah v. Pomeroy, 93 Utah 426, 73 P.2d 1277, 114 A.L.R. 726	Cited by petitioner as authority for the proposition that the legislature cannot enlarge appellate jurisdiction absent constitutional authorization.	The court declined to follow these authorities as controlling, indicating they are distinguishable or in conflict with Arizona precedent.
Jung v. Myer, 11 N.M. 378, 68 P. 933	Cited by petitioner in support of the contention that legislative expansion of appellate jurisdiction is improper.	The court treated such out-of-state decisions as distinguishable or inconsistent with this court's prior reasoning.
Lemen v. Edmunson, 202 Cal. 760, 262 P. 735	Cited by petitioner as authority for limiting legislative power to confer appellate jurisdiction.	The court indicated these decisions were not controlling and could be distinguished from the present case.
North Bend Stage Line v. Department of Public Works, 170 Wn. 215, 16 P.2d 206	Cited by petitioner in support of the expressio unius construction limiting legislative power over appellate jurisdiction.	The court said such authorities were for the most part distinguishable or in conflict with Arizona precedent and did not adopt them.
Durousseau and Others v. United States, 6 Cranch 307, 3 L.Ed. 232	Petitioner relied on it as an authority consistent with the view that constitutional silence implies limitation on legislative authority.	The court did not adopt this federal authority as controlling and treated it as distinguishable or conflicting with Arizona holdings.
Hoeye v. Willis, 15 Ariz. 257, 138 P. 15, 16	Respondent cited for the principle that the right to an appeal originates in the Constitution or statute and that the legislature has discretion to grant or deny appeals when the right is neither given nor denied by the Constitution.	The court treated this principle as supporting the respondent; it noted the statement might be dicta in that case but emphasized the principle has been reiterated in later Arizona cases.
Smith v. Trott, 36 Ariz. 166, 283 P. 726	Cited as a subsequent Arizona case reiterating the legislative discretion over appeals absent constitutional prohibition.	The court relied on this line of Arizona cases to support the conclusion that the legislature may authorize appeals unless constitutionally prohibited.
Beach v. Superior Court, 64 Ariz. 375, 173 P.2d 79	Cited as further Arizona authority reaffirming legislative discretion with respect to appeals.	Used by the court as part of the Arizona precedent rejecting the petitioner's restrictive view.
Him Poy Lim v. Duncan, 65 Ariz. 370, 181 P.2d 357	Cited as additional Arizona authority upholding legislative power to prescribe appeals and remedies absent constitutional prohibition.	The court cited it as part of a consistent line of Arizona cases supporting the respondent's position.
Earhart v. Frohmiller, 65 Ariz. 221, 178 P.2d 436, 437	Cited for the doctrine that state constitutions are limitations (not grants) on legislative power; that the legislature may act on subjects unless prohibited; that expressio unius construction is inappropriate for provisions relating to the legislative branch; and the presumption in favor of validity of legislative acts.	The court relied heavily on Earhart to reject the petitioner's contention that constitutional silence implies a prohibition and to articulate the standard that the legislature may enlarge (but not diminish) the superior court's appellate jurisdiction unless the constitution clearly prohibits it.
Lane v. Ferguson, 62 Ariz. 184, 156 P.2d 236	Cited with reference to prior discussion about hybrid statutes governing administrative appeals (relative to liquor appeals) and procedural treatment of such appeals.	The court noted much of what was said in Lane is apropos and used it to characterize section 67-1739 as a hybrid statute and to guide the treatment of the appeal procedure.
Duncan v. Mack, 59 Ariz. 36, 122 P.2d 215	Cited for the view that appeals from administrative bodies with hybrid provisions should be heard in the superior court as though they were original proceedings unless the legislature expressly provides otherwise.	The court adhered to Duncan and instructed that the present appeal should be heard in the superior court in the same manner as an original proceeding because section 67-1739 contains no legislative limitation to the contrary.

Court's Reasoning and Analysis

The court began by identifying Article 6, Section 6 of the Arizona Constitution, which describes the superior court's appellate jurisdiction in general terms. The petitioner argued that the Constitution precludes the legislature from expanding the superior court's appellate jurisdiction and invoked the expressio unius est exclusio alterius rule and various out-of-state authorities.

The court observed that the petitioner's cited authorities were largely out-of-state or federal decisions and stated that, without detailed analysis of each, those holdings could be readily distinguished from or are in conflict with prior Arizona decisions. The respondent relied on a line of Arizona cases (beginning with Hoeye v. Willis and including Smith v. Trott, Beach v. Superior Court, Him Poy Lim v. Duncan, and Earhart v. Frohmiller) that articulate the principle that the right of appeal is created by the Constitution or statute and that, where the Constitution neither grants nor denies a right of appeal, the legislature has discretion to create or limit appeals.

The court quoted and relied on Earhart v. Frohmiller to emphasize several points: state constitutions are limitations on legislative power (not grants), the legislature retains plenary power over matters not constitutionally prohibited, the expressio unius rule is not persuasive when applied to constitutional provisions concerning the legislative branch, and legislative acts enjoy a presumption of validity. Applying these principles, the court rejected the petitioner's contention that constitutional silence should be construed as an implied prohibition on legislative authority to vest appellate jurisdiction in the superior courts.

Conclusively, the court held that unless the Arizona Constitution clearly prohibits such an act, the legislature has the power to enlarge (but not diminish) the appellate jurisdiction of the superior court. The court further analyzed the governing statute, section 67-1739, as containing characteristics of both a strict appeal and a trial de novo (a "hybrid"). Citing Lane v. Ferguson and adhering to the view in Duncan v. Mack, the court instructed that such appeals are to be heard in the superior court in the same manner as an original proceeding unless the legislature expressly provides otherwise. Section 67-1739 contains no such express limitation; therefore the superior court is at liberty to proceed.

Holding and Implications

Holding: The respondent's motion to dismiss the petition for a writ of prohibition is granted and the petition is ordered dismissed.

Implications:

Direct effect: The superior court may proceed to hear the appeal taken by Grantwood Cemeteries, Inc. from the commissioner's denial under section 67-1739.
Legal principle affirmed: The court held that, in Arizona, the legislature may enlarge the appellate jurisdiction of the superior courts unless the state or federal constitution clearly prohibits such enlargement; constitutional silence does not constitute an implied prohibition.
Procedural guidance: Section 67-1739 is a hybrid statute containing elements of both appeal and trial de novo; in the absence of an express legislative provision to the contrary, such appeals should be heard in the superior court as though they were original proceedings (per Duncan v. Mack and related Arizona authority).

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COX, State Real Estate Commissioner, v. SUPERIOR COURT IN AND FOR PIMA COUNTY et al.

UDALL, Chief Justice.

This is an application for an original writ of prohibition directed to the Honorable Lee Garrett as judge of the superior court of Pima County, to prevent him from taking jurisdiction over a proceeding that originated before the petitioner, W.M. Cox, as state real estate commissioner.

Grantwood Cemeteries, Inc., under the provisions of section 67-1731 et seq., A.C.A. 1939, The Arizona Real Estate Act, made application to the petitioner to establish a cemetery and subdivide certain land located in Pima County, Arizona. After a hearing before the petitioner, he denied its application and prohibited the sale of the property. Grantwood Cemeteries, pursuant to section 67-1739, A.C.A. 1939, gave notice of appeal from the findings and order denying their application to the superior court. The pertinent parts of this latter section reads: "The decision of the commissioner in denying, suspending or revoking any license, or other order or decision, shall be subject to review. Any person aggrieved by the commissioner's decision may, within thirty (30) days after such decision, appeal to the superior court of the county in which the appellant resides, and such court shall, on such appeal, inquire into the cause of such denial, suspension or revocation, or other order or decision. If, in the opinion of the court, the denial, suspension or revocation of such license, or other order or decision, was made without just cause, the court may afford such relief as it may deem advisable. * * * Hearing of any such appeal shall proceed in accordance with such rules as the court may determine. The party appealing may make demand of the commissioner, in writing, for a certified transcript of all papers on file in his office affecting or relating to such decision or order and of all evidence taken at the hearing. * * *"

The primary question involved is whether the legislature can vest the superior courts with appellate jurisdiction of proceedings originating before an administrative body?

Art. 6, Sec. 6 of the Constitution of Arizona provides: "* * * Said court (superior court) shall have * * * appellate jurisdiction in cases arising in justices' and other inferior courts in their respective counties as may be prescribed by law. * * *" Petitioner contends that the legislature because of the above provision can neither expand or extend the appellate jurisdiction of the superior courts and that the rule of construction, expressio unius est exclusio alterius should be applied. He relies upon the following decisions. viz.: North Point Consol. Irr. Co. v. Utah S.L. Canal Co., 14 Utah 155, 46 P. 824; Attorney General of Utah v. Pomeroy, 93 Utah 426, 73 P.2d 1277, 114 A.L.R. 726; Jung v. Myer, 11 N.M. 378, 68 P. 933; Lemen v. Edmunson, 202 Cal. 760, 262 P. 735; North Bend Stage Line v. Department of Public Works, 170 Wn. 215, 16 P.2d 206, and Durousseau and Others v. United States, 6 Cranch 307, 3 L.Ed. 232. Without analyzing each of them separately, and with due deference to the courts rendering them, we are of the opinion that the holdings in these cases for the most part can be readily distinguished or they are in direct conflict with prior reasoning and holdings of this court.

The respondent on the other hand relies upon previous pronouncements of this court beginning with Hoeye v. Willis, 15 Ariz. 257, 138 P. 15, 16: "The right to an appeal does not exist at common law. It has its origin in the Constitution or in the statute. When the right is neither given nor denied by the Constitution, it is then within the discretion of the legislative authority to grant it or take it away, to enlarge or circumscribe the remedy, and to say in what cases, and under what circumstances, and whence appeals may be taken. (Citing cases.)" Counsel for petitioner might be correct in branding this statement as dicta in that case, but the same principle has been reiterated in the following cases: Smith v. Trott, 36 Ariz. 166, 283 P. 726; Beach v. Superior Court, 64 Ariz. 375, 173 P.2d 79; Him Poy Lim v. Duncan, 65 Ariz. 370, 181 P.2d 357. If any doubt remained as to this being the law in this jurisdiction it was resolved adversely to the views of the petitioner in the recent case of Earhart v. Frohmiller, 65 Ariz. 221, 178 P.2d 436, 437, wherein it was stated:

"We believe the rule of construction which requires the finding of express authorization is inappropriate when applied to the Constitution of the State of Arizona, and by the great weight of authority throughout the United States, it is not applicable to the construction of state constitutions generally. Art. 2, Sec. 33 of the Arizona Constitution states that `The enumeration in this constitution of certain rights shall not be construed to deny others retained by the people'. Unlike the Federal Constitution, state constitutions are not grants of power, but instead are limitations thereof. The generally accepted doctrine is that except for those things necessarily inhibited by the Federal or state constitution, the state legislature may pass any act, because the whole power not prohibited by the state and Federal constitutions is retained in the people and their elected representatives in the state. (Citing cases.)

"The Constitution of Arizona is not, as is the Constitution of the United States, to be considered a grant of power or enabling act to the Legislature, but rather is a limitation upon the power of that body, and that `The Legislature is vested with the whole of the legislative power of the state, and may deal with any subject within the scope of civil government unless it is restrained by the provisions of the Constitution, and the presumption that the Legislature is acting within the Constitution holds good until it is made to appear in what particular it is violating constitutional limitations.' (Citing cases.) `We do not look to the (state) Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited.' (Citing cases.)

"Neither is the rule of construction that expressio unius est exclusio alterius persuasive in this case. This rule is applied with greatest caution to `provisions of constitutions relating to the legislative branch of the government, as it cannot be made to restrict the plenary power of the legislature * * *.' (Citing cases.)

"Our standard for judgment here is clear. We must find that the Act is clearly prohibited by either the Federal Constitution or the Constitution of Arizona in order to hold it invalid. And in looking to see whether it is clearly prohibited we are cognizant of the rule that all presumptions and intendments are in favor of the validity and constitutionality of legislative acts and such acts `will be given a construction consistent with validity if at all possible.'" (Citing cases.)

Applying these legal principles to the record before us we reject as unsound the contention that the silence of the constitutional provision on the right of the legislature to authorize an appeal of this kind, is to be construed as an implied prohibition against the same. We expressly hold that unless the constitution has prohibited the legislature from enlarging the appellate jurisdiction of the superior court, it has, in exercising the sovereign power of the state, the power to enlarge but not diminish such appellate jurisdiction.

In view of the fact that the trial court is now at liberty to proceed in this matter, an expression by this court for its guidance might not be amiss. The governing appeal statute, section 67-1739, supra, has the elements of both a strict appeal and a trial de novo. Much that was said by Justice La Prade, speaking for the court in Lane v. Ferguson, 62 Ariz. 184, 156 P.2d 236 (relative to the statute governing liquor appeals), is apropos to the instant case. Both statutes are hybrids. It is unfortunate the legislature has not cured this hodge podge of confusion, by enacting a uniform administrative procedure act to govern the procedure before these tribunals and the method of appeal, as has been done by the Congress of the United States and some of our sister states. Until that is done we adhere to the view expressed in Duncan v. Mack, 59 Ariz. 36, 122 P.2d 215, that in all such cases it is to be heard in the same manner as though it were an original proceeding in the superior court unless the legislature expressly provides otherwise. This section contains no such limitation on the superior court.

The respondent's motion to dismiss the petition for a writ of prohibition is granted and the petition is ordered dismissed.

STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concur.

COX v. SUPERIOR COURT