State v. Miller

• Decision Date: 29 April 1966
• Docket Number: No. 1693,1693
• Citation: 413 P.2d 757,100 Ariz. 288
• Parties: STATE of Arizona, Plaintiff, v. Robert E. MILLER, Defendant.
• Court: Arizona Supreme Court

Page 757

413 P.2d 757

100 Ariz. 288

STATE of Arizona, Plaintiff, v. Robert E. MILLER, Defendant.

No. 1693.

Supreme Court of Arizona, In Banc.

April 29, 1966.

Robert K. Corbin, Maricopa County Atty., Joe R. Glenn, Deputy County Atty., John A. Golden, Former Deputy County Atty., for plaintiff.

Lewis, Roca, Scoville, Beauchamp & Linton, John J. Flynn, Phoenix, Robert A. Jensen, Phoenix, for defendant.

McFARLAND, Justice.

The following questions were certified by the Superior Court of Maricopa County and filed on the 15th day of April 1966, in accordance with Rule 346 of Rules of Criminal Procedure, 17 A.R.S., in the case of State of Arizona v. Robert E. Miller, defendant, in Cause No. 48731:

1. Does Article 6, Section 2 of the Arizona Constitution prohibit or divest the Superior Court of jurisdiction to declare a statute unconstitutional?

2. Is A.R.S. Sec. 38--609 so vague, indefinite and uncertain that its application denies due process of law under the state and federal constitutions?

3. Is the indictment as pled fatally defective as a matter of law in that it fails to advise the defendant of the nature and cause of the accusation against him as required by Article 2, Sections 4 and 24, of the Arizona Constitution and the Sixth and Fourteenth Amendments to the United States Constitution?

In the presentation of the case in oral argument on April 21, 1966, it was stated that the case was set down for trial for May 2, 1966, and that an early decision was imperative.

The first question presented is in regard to the meaning of the constitutional amendment, Article VI, Section 2, adopted in 1960, A.R.S., which provides:

'The Supreme Court shall sit in accordance with rules adopted by it, either in banc or in divisions of not less than three justices, but the court shall not declare any law unconstitutional except when sitting in banc. The decisions of the court shall be in writing and the grounds stated.'

Before the adoption of this amendment, the Arizona Supreme Court could sit only in banc. The amendment permits the court to sit in divisions or in banc, but provides that 'the court shall not declare any law unconstitutional except when sitting in banc.' The intention was not to change the law in regard to passing upon constitutional questions, but simply to require this court to continue to sit in banc for such decisions. It does not deprive the superior court of jurisdiction initially to hear and determine constitutional questions.

The second question presented is whether A.R.S. § 38--609 is so vague, indefinite and uncertain that its application denies due process of law under the state and federal constitutions. That section reads as follows:

' § 38--609. Retention of salary of subordinate; penalty

'A public officer who accepts, retains or diverts for his own use or the use of any other person any part of the salary or fees allowed by law to his deputy, clerk or other subordinate officer, is guilty of a felony.'

A law may not be so uncertain that it will admit of different constructions. State v. Locks, 97 Ariz. 148, 397 P.2d 949. In the case of State v. Menderson, 57 Ariz. 103, 111 P.2d 622, we said:

'What a statute commands or prohibits in the creation of new crimes should be very definite and easily understood by the common man. The rules in that respect, as announced by different courts, are collated in H. Earl Clack Co. v. Public Service Commission, 94 Mont. 488, 22 P.2d 1056, 1059, and we quote therefrom at length, as follows:

"* * * "Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts * * * to avoid.' United States v. Brewer, 139 U.S. 278, 11 S.Ct. 538, 35 L.Ed. 190. 'In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty.' Tozer v. United States (C.C.) 52 F. 917. 'If the Legislature undertakes to define by statute a new offense, and provide for its punishment, it should express its will in language that need not deceive the common mind. Every man should be able to know with certainty when he is committing a crime.' United States v. Reese, 92 U.S. 214, 23 L.Ed. 563.' Burk v. Montana Power Co., 79 Mont. 52, 255 P. 337, 339.

"'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 127, 70 L.Ed. 322.

"'The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.' United States v. Capital Traction Co., 34 App.D.C. 592, 19 Ann.Cas. 68." 57 Ariz. at 108, 111 P.2d at 624.

The question then is whether § 38--609 meets the test as to definiteness as stated in State v. Menderson, supra, which followed the law enunciated by the United States Supreme Court. In passing upon this question it is necessary that we examine the legislative history of the statute.

It was first adopted in our Penal Code in 1913 in Section 77, under Title V, 'Of Crimes By and Against the Executive Power of the State,' in the following words:

'77. Every officer of this state, or of any county, city or town therein, who accepts, keeps, retains, or diverts for his own use or the use of any other person any part of the salary or fees allowed by law to his deputy, clerk, or other subordinate officer, is guilty of a felony.'

In the condification of the 1928 Code the words '(e)very officer of this state, or of any county, city or town therein' were deleted, and '(e)very public officer' were substituted therefor; also the word 'keeps' was delineated. In the codification of 1956 the words '(e)very public officer' were changed to '(a) public officer.' Our Penal Code in 1913 was adopted largely from the Penal Code of California. Hoy v. State, 53 Ariz. 440, 90 P.2d 623. Section 77 of the 1913 Penal Code was taken from the California Code.

The provision first appeared in the Code of California in 1872, under 'An Act to protect the wages of labor and the salaries and fees of subordinate officers.' Stat. 1872, Ch. 637, § 2, read:

'Sec. 2. Every officer of the State or any county, city, or township therein, who keeps or retains any part or portion of the salary or fees allowed by law to his deputy, clerk, or subordinate officer, is guilty of a felony.'

The California Code, which was recodified in 1901, contained this section. ¹ It was re-enacted in 1905, at which time it was amended to read:

'74a. Every officer of this state, or of any county, city and county, city, or township therein, who accepts, keeps, retains or diverts for his own use or the use of any other person any part of the salary or fees allowed by law to his deputy clerk, or other subordinate officer, is guilty of a felony.'

It has been retained in this language since that date with the exception that the words 'township therein' have been changed to 'judicial district.' Cal.Gov.C.A. § 1195.

Counsel have not pointed to any prosecutions or to any decisions in regard to prosecutions for violations either in California or in Arizona under these sections.

In the early days in California, there developed two methods of compensation of employees in the different counties of the state. In most counties, a lump sum was allowed to the principal, out of which he was required to pay his deputies. Then, in a smaller number, the principal was allowed a fixed salary and certain deputies allowed fixed salaries. Tulare County v. May, 118 Cal. 303, 50 P. 427. This indicates the reason for the changes in the wording of the statute in 1905 and the addition of the word 'accept.'

In the case of Bayley v. Garrison, 190 Cal. 690, 214 P. 871, where Section 74a of the California Code was discussed as it affected the right to increase the salaries of deputies during their term of office, under the constitutional provision prohibiting the changing of the salary of a public official during his term of office, the court stated:

'* * * In considering this question it should be observed at the outset that the Penal Code (section 74a) makes it a felony for the officer to directly or indirectly receive or accept any part of the compensation of his deputy. That section provides as follows:

"Every officer of this state, or of any county, city and county, city, or township therein, who accepts, keeps, retains, or diverts for his own use or the use of any other person any part of the salary or fees allowed by law to his deputy, clerk, or other subordinate officer, is guilty of a felony.'

'It is clear then that whatever advantage the officer may derive from the fact that his deputy has an increased salary is not a direct benefit, but arises, if at all, from the securing of more valuable or competent help than could be...