42 P.2d 619 (Ariz. 1935), Civ. 3616, Board of Regents of the University of Arizona v. Sullivan

Docket Nº:Civil 3616
Citation:42 P.2d 619, 45 Ariz. 245
Opinion Judge:ROSS, J.
Party Name:BOARD OF REGENTS OF THE UNIVERSITY OF ARIZONA, Plaintiff, v. JOHN L. SULLIVAN, as Attorney General of the State of Arizona, Defendant
Attorney:Messrs. Strouss & Salmon, for Plaintiff. Mr. John L. Sullivan, Attorney General, and Mr. Dudley W. Windes, Assistant Attorney General, for Defendant.
Judge Panel:McALISTER, J., concurs. LOCKWOOD
Case Date:March 27, 1935
Court:Supreme Court of Arizona
 
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Page 619

42 P.2d 619 (Ariz. 1935)

45 Ariz. 245

BOARD OF REGENTS OF THE UNIVERSITY OF ARIZONA, Plaintiff,

v.

JOHN L. SULLIVAN, as Attorney General of the State of Arizona, Defendant

Civil No. 3616

Supreme Court of Arizona

March 27, 1935

Original proceeding in Mandamus. Alternative writ made peremptory.

Messrs. Strouss & Salmon, for Plaintiff.

Mr. John L. Sullivan, Attorney General, and Mr. Dudley W. Windes, Assistant Attorney General, for Defendant.

OPINION

Page 620

[45 Ariz. 247] ROSS, J.

This is an original proceeding by the Board of Regents of the University of Arizona, hereinafter called plaintiff, asking for a writ of mandamus directing John L. Sullivan, as Attorney General of the State of Arizona, hereinafter called defendant, to do and perform certain acts, hereinafter more specifically set forth. Alternative writ issued, to which the Attorney General has made answer, and the matter is before us for determination.

The Third Special Session of the Eleventh Legislature passed the "Educational Institutions Act of 1934" (being chapter 7 of said session), to which [45 Ariz. 248] we shall hereafter refer as the act, for the purpose of enabling plaintiff, Board of Regents of the University of Arizona, to issue and sell its bonds to "any federal agency" to secure money to improve and enlarge its educational plant, and to accept grants from any such agency.

In pursuance of the terms of said act and the National Recovery Act of June 16, 1933

Page 621

(48 Stat. 195), the plaintiff applied to the Federal Emergency Administrator of Public Works for a loan of $623,000, to be secured by its interest-bearing bonds, and for an outright gift or grant of $192,000, or a total of $815,000, which application has been duly approved by the said Federal Administrator.

On February 28th, 1935, the plaintiff, at a meeting duly and regularly called, by resolution authorized the issuance of its bonds in the sum of $623,000 to be sold to the said Federal Administrator, and the pledging of the revenues of said plant as improved and enlarged to secure the payment of such bonds.

The plaintiff submitted such bonds and all proceedings in connection therewith to the Attorney General of the state for examination and approval, whereupon it became his mandatory duty, under section 10 of the act, to examine into and pass upon the validity of such bonds and the legality of all proceedings in connection therewith, and, if such bonds were in fact and in law in conformity with the Constitution and laws of the state, and binding, legal and valid obligations enforceable according to the terms thereof, to certify, in substance, upon the back of each of said bonds that it is issued in accordance with the Constitution and laws of the state of Arizona.

The Attorney General refused to so certify, although in his answer he admits the bonds were issued in all respects in conformity with the Constitution and laws of the state, and particularly in accordance [45 Ariz. 249] with the Educational Institutions Act of 1934. His sole reason for refusing to approve and certify such bonds is upon the ground that the law authorizing them is unconstitutional, because:

(a) Such act is not related to the subjects specified within the call for such special session, in contravention to section 3, part 2, article 4, of the Constitution of Arizona, reading as follows:

"... The Governor may call a special session, whenever in his judgment it is advisable. In calling such special session, the Governor shall specify the subject to be considered at such session, and at such session no laws shall be enacted except such as relate to the subjects mentioned in such call."

(b) Said act contravenes section 13, part 2, article 4, of the Constitution, in that it (1) embodies more than one subject, and (2) the title does not express the subject of the act, and the body of the act is not germane to the subject. Such section 13 reads as follows:

"Every Act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be embraced in the title."

(c) Such act authorizes the creation of a debt against the state in excess of the constitutional amount as provided in section 5, article 9, reading:

"The State may contract debts to supply the casual deficits or failures in revenues, or to meet expenses not otherwise provided for; but the aggregate amount of such debts, direct and contingent, whether contracted by virtue of one or more laws, or at different periods of time, shall never exceed the sum of three hundred and fifty thousand dollars...."

[45 Ariz. 250] (d) Such act authorizes the development of educational institutions by fees and charges in contravention of section 10, article 11, reading as follows:

"The revenue for the maintenance of the respective State educational institutions shall be derived from the investment of the proceeds of the sale, and from the rental of such lands as have been set aside by the Enabling Act approved June 20, 1910, or other legislative enactment of the United States, for the use and benefit of the respective State educational institutions. In addition to such income the Legislature shall make such appropriations, to be met by taxation, as shall insure the proper maintenance of all State educational institutions, and shall make such special appropriations as shall provide for their development and improvement."

And (e) said act violates the provisions of section 6, article 11, reading as follows:

"The University and all other State educational institutions shall be open to students of both sexes, and the instruction furnished shall be as nearly free as possible."

The courts do not lightly declare legislative acts unconstitutional. If in doubt, they will uphold legislation. This disposition is on account of the respect due to the action of a co-ordinate branch of the government while functioning in its allotted sphere. One who charges the legislature with transgressing the fundamental law has the burden of establishing the charge, as we and many of the courts have said, beyond a reasonable doubt. So, we approach the grave questions raised by the attorney General with this rule in mind. We consider them in the order above stated.

(a) The Educational Institutions Act of 1934 was not passed at a regular session of the legislature, but at a called or special session. When the legislature is convened at the instance of the Governor, [45 Ariz. 251] it is required by

Page 622

the Constitution (section 3, pt. 2, art. 4) that he state in his call the specific subject he desires the legislature to consider; and any legislation enacted by that body must relate to such subject. One of the subjects mentioned in the Governor's call is described as follows:

"To enable the Board of Regents of the University of Arizona... to borrow money or accept grants from any Federal Agency."

This amounts to a commission to the legislature to pass any and all legislation necessary to endow the University with power to borrow money and accept grants from the federal government or any of its agencies. But it is...

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