(dissenting).
The majority of the court has permitted the use of the writ of prohibition to substitute for an appeal and in doing so deprived the respondents of what I consider very substantial rights.
In the lower court, petitioners answered plaintiffs’ (respondents) complaint; made motions to dismiss and to drop parties defendants ; controverted plaintiffs’ motion for summary judgment; and made motions to change the form of the summary judgment and to vacate the order granting plaintiffs’ motion for summary judgment. After entry of the judgment against them, petitioners sought a writ of prohibition. If the petitioners desired to use prohibition, they should have done so before the final judgment was entered. In not doing so, they, in effect, took two shots at the question, awaiting, presumably in some hope, to see if the trial court would rule with them eventually on the merits of the case, and then, when it did not, they undertook to use the writ of prohibition.
This court has repeatedly discouraged this method of review. But, in doing what the majority has done here, they, in effect, encourage what this court has always undertaken to discourage, that is, to obtain review by special writ instead of by appeal. From the very beginning this court has followed the rule of not letting such a writ substitute for an appeal. Emery v. Superior. *189Court, 89 Ariz. 246, 360 P.2d 1025; Miller v. Superior Court, 21 Ariz. 61, 185 P. 357; Sanford v. Dist. Court, 8 Ariz. 256, 71 P. 906; Territory v. Doan, 7 Ariz. 89, 60 P. 893. The reason for such a rule is well stated in U. S. v. Hoffman, 71 U.S. (4 Wall.) 158, 161, 18 L.Ed. 354 as follows:
“The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do something which, by the suggestion of the relator, the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it * *
It was error, not only in that particular, to grant the writ, but also on the grounds that the petition was not well taken when considered on the merits. I also think it was improper to have granted the peremptory writ after such a short oral argument and without having seen the file from the court below. In this respect, also, we have departed from the regular practice of this court.
The majority says that “the bare recital of the foregoing facts plainly indicates a complete want of jurisdiction in the superior court.” My opinion is that the majority’s bare recital, somewhat erroneous as it is, plainly indicates that the superior court had jurisdiction. I, therefore, completely disagree with the conclusions the majority has reached with reference to the jurisdiction of the trial court to hear and determine this case under the Administrative Review Act.
A.R.S. § 12-901, was quoted only in part by the majority. From paragraph 2 of this section, it appears that an aggrieved person may avail himself of a right to administrative review where there has been a “decision, order or determination of an administrative agency rendered in a case which affects the legal rights, duties or privileges of persons and which terminates the proceeding before the administrative agency.” I cannot see how the majority could come to the conclusion that the trial court in this case did not have jurisdiction to review the act of the commission, considering the appearance that was made formally before the commission by the respondents demanding redress from the odious requirements of a part of the regulation in question. The commission received the formal written protest, caused it to be read into the record, stated that it would consider it before supplementing the regulation, and then did not assume any responsibility whatever with reference to it.
The commission’s summary disposal of this question by setting a plowup date was, in effect, an order extending the regulations into the ensuing year, and respondents were absolutely correct in assuming that such action constituted a denial of the redress they were seeking, that is, revocation of the *190regulation since the menace no longer existed.. See A.R.S. § 3-208, Subsection C. The matter was before the commission, and, it was the commission’s duty to give it every consideration, take evidence, if necessary, but in any event to terminate the regulation if the danger was no longer present. Since they did not, this was a proper matter for review under the Administrative Review Act.
The majority says that:
“While the Commission is authorized by A.R.S. § 3-208 subd. C to change or modify its order when it finds that the original danger no longer is present, it is not compelled sua sponte to launch an investigation to redetermine what has already been decided.”
This statute does not merely authorize the commission; it says the commission “shall revoke the order establishing the zone” when the commission finds the danger is no longer present. In legislation such as this, where the words of the legislature obviously are intended to limit and delineate the powers and duties of the commission, the word shall puts a positive responsibility directly on the agency itself, and if, as has been held by the majority, “the applicant has the burden of proof”, the clear intent of the legislature is violated. It can only be said that, by such an interpretation, the Supreme Court of this state is clothing the commission with a complete delegation of legislative power condemned in State v. Marana Plantations, Inc., 75 Ariz. 111, 252 P.2d 87, which the legislature itself specifically did not do.
Since A.R.S. § 3-208, Subsection C, describes the conditions under which the commission shall terminate its order establishing the zone, it must be required, whenever by suggestion of any kind it appears that there may be a question on this point, that the commission specifically make a finding. This they did not do. In support of the statement of the majority that the burden of proof lay with the respondents, when they were before the Commission on October 25, 1961, the majority cites the case of Application of Chicago & North Western Ry. Co., 79 Wyo. 343, 334 P.2d 519. It, in my opinion, does not support the point made. The differences between the regulation of railroad rights where the railroad company involved is seeking to eliminate some of its services is so distinct from our situation where the commission was only asked to abide by the mandate of the statute, a statute whereby it could lawfully continue regulations only where a continuing danger exists, is so great as to be of no persuasion whatever so far as I am able to see.
I cannot agree that the “issue of the menace to the state by the pink bollworm of cotton was determined finally and conclusively” *191in 1958. To take, that position is to give no meaning whatever to A.R.S. § 3-208, Subsection C, having reference to terminating the regulation. It must be kept in mind that Regulation No. 7 Revised is, in effect, an “establishment of a prohibited zone.” The legislature obviously did not intend that the farmers would live forever under these prohibitions. Therefore, it is my opinion that the question must, under this statute, be forever open and that the commission must continue to find, particularly where these regulations are so handled as to apply from year to year, that the danger continues to exist warranting such regulations. This, it seems to me, is the only logical interpretation that can be placed on this statute, and, if we are going to apply the principles of law in the cases cited by the majority, Allied Van Lines v. Parsons, 80 Ariz. 88, 293 P.2d 430, and Parker v. McIntyre, 47 Ariz. 484, 56 P.2d 1337, then we are, in effect, absolutely changing the clear terms of the statute and invading the province of the legislature.
The learned Judge was not acting in excess of or beyond his jurisdictional powers. His judgment should be reinstated.
LORNA E. LOCKWOOD, J., by reason of illness did not participate in the determination of this cause.