Carr v. Frohmiller

• Decision Date: 10 April 1936
• Docket Number: Civil 3745
• Citation: 56 P.2d 644,47 Ariz. 430
• Parties: E. P. CARR, Plaintiff, v. ANA FROHMILLER, as Auditor of the State of Arizona, Defendant
• Court: Arizona Supreme Court

56 P.2d 644

47 Ariz. 430

E. P. CARR, Plaintiff, v. ANA FROHMILLER, as Auditor of the State of Arizona, Defendant

Civil No. 3745

Supreme Court of Arizona

April 10, 1936

Original proceeding in Mandamus. Alternative writ made peremptory.

Mr. I F. Wolpe, Jr., for Plaintiff.

Mrs Ana Frohmiller, Defendant, in pro. per.

OPINION

ROSS. J.

This proceeding in mandamus against Ana Frohmiller, state auditor, has for its purpose a judicial determination as to whether there are in the state treasury funds available to pay the burial expenses of a deceased old age pensioner.

The plaintiff shows by his complaint that he was employed for the sum of $100 by the board of supervisors of Maricopa county, acting as the old age pension commission of said county, to bury one Juana Gonzales, who died while holding a certificate entitling her to a pension from the county and state; that he prepared her body for burial, and buried her on January 17, 1936; that thereafter, on January 28th, he presented a claim of $67, that being the state's proportion of the burial expenses, to the state auditor, duly verified and properly approved by the said old age pension commission of the county, drawn against the appropriation for old age pensions as made by chapter 34, Laws of 1933, for audit and allowance, and that the auditor refused to audit the claim or to draw her warrant therefor. It is alleged that there are sufficient unexpended and unencumbered funds in the state treasury appropriated by said chapter 34, and that plaintiff's claim is a legal charge against such fund.

The auditor's defense consists of a general demurrer and an answer; the latter being in the following words:

"Admits all the allegations of facts contained in Petitioner's Petition, and as an affirmative defense, alleges that the appropriation for old age pensions and burial expenses contained in subdivision 64 of the General Appropriation Bill for the present fiscal year, being chapter 107, Laws of 1935, has been expended for pensions and burials; that said appropriation is completely depleted and exhausted; that by operation of said General Appropriation Bill and the provisions of the Financial Code of Arizona, the continuing appropriation contained in chapter 34, Laws of 1933, was discontinued on July 1, 1935; that there is no appropriation of funds against which Respondent is authorized to draw a warrant in payment of Petitioner's claim."

From the answer, it appears that the refusal to audit and allow plaintiff's claim is not because there is no pension fund but because the legislative appropriation for the fiscal year 1935-1936 has been exhausted. Plaintiff alleges the existence in the state treasury of sufficient unexpended and unencumbered funds appropriated for the payment of his claim, and this allegation is not denied. Indeed, it is expressly admitted. Although it does not appear in the pleadings, the fact is the levy by the tax commission for pensions for the twenty-fourth fiscal year was $409,434.99. Because the question involved should be settled as soon as possible, we will proceed as though this fact were pleaded.

Because it is anything but clear as to what action she should take, the auditor, we think very properly, declined to audit and allow the claim. Whether she was right in basing her refusal upon the fact that the amount set aside in the general appropriation bill for pensions (Laws 1935, chap. 107) was exhausted, is the question. In other words, it appears, as we shall show, that two appropriations for pensions for the twenty-fourth fiscal year have been made by the legislature, one under the Old Age Pension Act, and one in the general appropriation bill of 1935 (Laws 1935, Chap. 107), and that the latter is exhausted. whereas there is a balance of approximately $125,000 in the former. This is because the levy and collection of taxes were made to meet the appropriation under the Old Age Pension Act or chapter 34, Laws of 1933. Whether these two legislative expressions can be reconciled or which one shall be accepted as the guiding rule and applied must be decided.

Chapter 34, Laws of 1933, is the Old Age Pension Act. Under it the board of supervisors of each county is made the old age pension commission of its county. The act is almost entirely administered by the county pension commission as agent of the county and state. Applications for pensions are passed upon and allowed or disallowed by the county pension commission. If allowed, the commission issues to the pensioner a certificate, good for one year, unless sooner revoked, which shall give the pensioner's name, age, residence and the amount of his monthly pension, which may be as much as, but cannot exceed, $30. The pension commission, upon awarding a pension, is required to certify the fact to the state auditor, upon the blank prepared by the auditor, and also to the county treasurer of the county where the pensioner resides, and such certificate, until revoked, superseded, or nullified by expiration or death, is authority to the state auditor and the county treasurer to draw their monthly warrants in payment of pension in the proportion of 67 per cent, and 33 per cent., respectively, to be paid by the state out of its general fund and by the county out of its general fund.

Section 14 of the Pension Act reads:

"Payment of Funeral Expenses. Upon the death of a pensioner, the monthly instalment then accruing, with an additional amount to be fixed by the county commission, but not to exceed a total of one hundred dollars shall, if the estate of the deceased is insufficient for such purpose, be paid to such person or persons as the commission may direct, for the burial of the pensioner."

This section contains the only specific reference to funeral expenses. It does not provide who shall pay these expenses -- whether the county or the state, or both. We think, however, since the pension for the month in which the pensioner dies is made a part of the funeral expenses, it is but reasonable to assume that it was intended by the legislature to be a joint obligation of the state and county in the proportion of 67 per cent. and 33 per cent., respectively.

Section 23 makes a continuing appropriation to cover the obligatons authorized to be incurred under chapter 34. It reads:

"Sec. 23. Appropriation. The sum of twenty dollars per month to each pensioner under this act or so much thereof as may be necessary, is hereby appropriated out of the general fund of the state, to carry out the provisions of this act. The state auditor shall report to the state tax commission the sum of all warrants issued hereunder, and the state tax commission shall include said sum in determining the annual tax levy."

The appropriation is made "to carry out the provisions of this act," and one such "provision" is that the county pension commission may incur expenses for the burial of the pensioner up to $100, if his estate is insufficient to care for such expense. Hence we think the appropriation was intended to cover both pensions and burial expenses.

It will be noted that section 23 provides that the state auditor shall report to the state tax commission "the sum of all warrants issued" under the act, and that "the state tax commission shall include said sum in determining the annual tax levy."

Section 3063, Revised Code of 1928, makes it the duty of the state tax commission, acting as a board of equalizaton, to "fix the rate of taxation for state purposes to be levied and collected in each county."

And section 3096, Id., provides the levy shall be for "such a sum of money as the legislature may prescribe and deem to be sufficient. With other sources of revenue, to defray the necessary ordinary expenses of the state for each fiscal year or years, and to pay the interest and principal of the bonds of the state."

Section 23, supra, was enacted quite a while after sections 3063 and 3096, supra, and it provides the rule to ascertain the "annual tax levy" for old age pensions. The state tax commission makes the levy, and it must in doing so include "the sum of all warrants" theretofore issued to old age pensioners. This, we assume, is what was done. The tax commission did not take the appropriation of $275,000 for 1935-1936 as the basis for fixing the rate of levy, but "the sum of all warrans," and as a result there has been levied and collected an excess over the appropriation contained in the general appropriation bill.

In refusing to make the rate of levy on the appropriation by the legislature for old age pensions and in fixing such rate on "the sum of all warrants issued," the tax commission strictly obeyed the law. The tax commission might and should have used the legislative appropriation as the basis for that purpose if the legislature had not directed it to use the rule prescribed by section 23 of chapter 34 as the basis of "the annual tax levy."

So we concluded that the money in the state treasury for old age pensions and funeral expenses, admitted by the answer to have gotten there under the provisions of the Old Age Pension Act, was levied and collected in pursuance of law and is available under the appropriation contained in section 23 to pay the plaintiff's claim for burial expenses of pensioner Gonzales, unless the legislation of 1935 in the general appropriation bill (Laws 1935, chap. 107) has superseded or repealed the authority of the tax commission to base its levy for old age pensions on "the sum of all warrants issued," and also suspended, superseded, or repealed the appropriation under chapter 34.

The defendant submits that such was the effect of the legislative appropriation, and it must be conceded that the answer to the proposition raised is not an easy one. The pertinent part...