Lindsey v. Duncan
356 P.2d 392
Ariz.
1960
Check Treatment

*1 underpinning adjoining building of an of buildings than as a burden- to them as plaintiff. his expense contrary the owner’s claimed wishes and even in where the cost Judgment affirmed. underpinning might exceed the value in- building. they Nor do we STRUCKMEYER, PHELPS, C. deny right tended building owners the LESHER, BERNSTEIN and JJ., concur- concerning judgment exercise their own ring. possible whether to bear the burden building cracks or damage damage avoiding

bear the burden This paying underpinning. the cost of rightly

choice the common law left

building owner. 356 P.2d 392 statute, reading A natural of this LINDSEY, Petitioner, AI abrogation not strained find merely a rule, common-law indicates it is DUNCAN, Superintendent John A. duty codification of the common-law Control, Respondent, parties (1) with but modifications: two Ming al., Fai Peter-Yee et Intervenors. requirement excavator ade protect quate notice to the building owner No. 7128. surprise, against (2) a division of Supreme Court of Arizona. support existing

burden artificial struc Oct. 1960. mod at the 12-foot level. This latter tures ification no doubt was intended to relieve Rehearing Denied Dec. 1960. building owner from harshness puts rule which him common-law supporting burden of his own structure deep adjoining matter how excava Appeals The Texas Court of Civil tion. adopted view in construing El statute. Paso Electric

similar Co. v.

Safeway Stores, Tex.Civ.App., 257 S.W.2d viewed, Properly this ordinance is in more as of relief a form

tended owners

Beer, Phoenix, pe- Polley, for Seaman & titioner. Church, Atty. Gen.,
Wade and Leslie C. Hardy, Gen., Atty. respond- Chief Asst. for ent. Yankee, Flynn, A. Neal E.
James James Stewart, Jr., Harry T. and Roberts A. Phoenix, for intervenors.

LESHER, Justice.

Proceedings for to this Court prohibition. original an Petitioner existing an owner of license for the sale Maricopa County. of in He seeks prohibit respondent, Superin- State Controls, of and tendent processing, and filing presumably from applications granting, in some Maricopa in additional County. are among those Intervenors applications would be whose affected. objec- at the outset met respondent intervenors this of tion in jurisdiction matter Court prohibition. original position upon They language base Arizona, the Constitution A.R.S., as follows: “ court; Supreme jurisdiction; 4.§ issue writs power to person Supreme custody held actual “Section make jurisdiction in writs returnable before shall himself, warranto habeas or before It any superior all State officers. as to court of the mandamus before all thereof.” shall ap- proceedings, but its actions and Power to issue writs directed to not pellate extend administrative officers of State is de- recovery law civil actions paragraph fined and limited the first personal property money or where quoted section. controversy, original amount “ * * * gives This same section property, does exceed value this court the to issue these and dollars, unless of two hundred the sum other writs in the exercise validity the action involves pellate revisory jurisdiction, toll, but municipal assessment, tax, impost, nowhere does Arizona Constitution fine, or statute. original jurisdiction us mandamus, writs other than *3 power to writs of manda- peti- If warranto. mus, review, prohibition, habeas cor- requested tioner’s relief does not come pus, all other certiorari and writs purview within the one of these necessary proper complete the to * * * power writs this court has appellate revisory exercise of its grant Bolin, to it.” Smoker v. 85 jurisdiction. 171, 333 P.2d 977. Ariz. Court shall have Petitioner contends that the writ and exclusive to permitted para he seeks is second all causes hear and determine between 4; is, that graph of Section it that can be concerning disputed bound- counties in the exercise issued of the court’s “re surveys thereof concern- aries appellate visory jurisdiction”. It can county against one an- ing claims of Superintendent The not. office to Such trials be court other. Liquor Licenses and Controls is not a court jury. a tribunal which this over court any revisory powers. “Each The Superin officer; power tendent is an administrative to issue writs of processing, issuing and corpus any part liquor denial of the State administrative acts. licenses are petition by or on behalf of Him Superintendent is emphasizing In that the Duncan, 65 Ariz. Poy Lim v. officer” and general “administrative that “the that within P.2d falls 357. He processing, issuing three and denial whom the class of state officers para- acts,” licenses are administrative major- in the first specified original writs other—may opinion ity may is- interpreted, however, 4—and no graph of Section applicability to limit the of the sue from this court. writ of power generally and the of a aware that an Court, Superior particular, to issue the from this prohibition issued writ in the circumstances here involved. City officer administrative majority The opinion does not discuss the Ariz. 263 P.2d Lane, 76 Phoenix nature of imposed the duties upon the question appear that It does not Superintendent by statute objections or the do so was jurisdiction to Court’s made Superintendent’s herein present extent, To one how- case. in that raised attempt to issue additional licenses. authority ever, stand as case writs, it is ex- setting such Without power forth, these matters I petition believe the properly pre- overruled. herein pressly Superior sents for the case which relief this Court petition seeks The fully empowered is to issue original writs authority grant. constitutional is without prohibition, entertain, grant, if not quashed. is The alternative application the instant prohibition, if denied. is application were made Su- perior Here, Superintendent Court. STRUCKMEYER, C. and PHELPS under a duty to consider is evidence and concurring. UDALL, JJ., found, ply the law to facts as thus exer- cising judgment judicial a discretion or (concurring). BERNSTEIN, performing in nature and a function which Justice quasi-judicial merely and not ministerial. major- objection to the no serious I have particular, it far as based In so determination ity opinion issue an lack of he has the Court’s *4 prohibition against issue additional involves a quasi-judicial activity ques- necessarily I do not tioned proceeding. While I do Controls. reasoning majority, proposition disputed to the subscribe majority, but justified important I consider it result is I believe be affirmedhere. the Arizona Constitution.