Community Council v. Jordan

• Decision Date: 18 October 1967
• Docket Number: No. 9024,9024
• Citation: 102 Ariz. 448,432 P.2d 460
• Parties: COMMUNITY COUNCIL, an Arizona nonprofit corporation, Petitioner. v. Jewel W. JORDAN, State Auditor and Jack Williams, Governor of the State of Arizona, Respondents.
• Court: Arizona Supreme Court

Page 460

432 P.2d 460

102 Ariz. 448

COMMUNITY COUNCIL, an Arizona nonprofit corporation, Petitioner. v. Jewel W. JORDAN, State Auditor and Jack Williams, Governor of the State of Arizona, Respondents.

No. 9024.

Supreme Court of Arizona, In Banc.

Oct. 18, 1967.

Ryley, Carlock & Ralston, by Joseph P. Ralston, Phoenix, for petitioner.

Darrell F. Smith, Atty. Gen., Sandra D. O'Connor, Phoenix, Asst. Atty. Gen., for respondent.

LOCKWOOD, Justice:

Community Council, an Arizona nonprofit corporation and petitioner, sought an order for writ of mandamus compelling Jewel W. Jordan, Arizona State Auditor, and Jack Williams, Governor of the State of Arizona, to approve certain vouchers representing reimbursement to the petitioner for the State Welfare Department's share of relief expenditures made by the Salvation Army. On June 23, 1967 we ordered that a peremptory writ of mandamus issue and this opinion follows in conformity therewith.

Such expenditures were made under authority of and pursuant to a contract between the Department of Welfare and the Community Council for the purpose of promoting the 'coordination of community resources into a Central intake process to eliminate duplication and overlapping and to channel available community funds to direct financial aid in emergency situations'. (Emphasis supplied.)

Under the terms of the contract, petitioner was to designate a 'representative financial assistance or transient aid committee' which must include a representative of the Maricopa County Department of Public Welfare. This committee, along with at least the United Fund Social Service Agencies and the Phoenix Council of Churches, who to designate one agency as a central referral cener for purpose of emergency assistance to those in need. The Salvation Army was chosen as this central agency.

The contract stipulated that these same agencies and churches on the financial assistance or transient aid committee must agree to divert whatever direct assistance funds possible through the committee to the designated central agency, and that this central agency must agree to report monthly receipts to the Department of Welfare identifying the funds received and agency or source from which derived.

As well, the designated central agency was obligated to furnish such reasonable statistics to the Department of Welfare as needed, including at least 'the monthly count of families aided, the household composition, approximate or estimated value of assistance given in kind, and the actual expenditure of funds for cash, clothing, gasoline, etc.'.

The Department of Public Welfare admitted in the contract that it considers that the persons helped by the designated central agency would, to a greater or lesser degree, have cost the Department some of its emergency relief funds if there was not such a system of central intake functioning. Recognizing this, and in order to avoid a flat grant and to stimulate contributions, the Department agreed to a matching procedure whereby it would put up $1.00 (40%) for every $2.50 spent by the designated central agency, provided that the agreement would be subject to the status of appropriated funds and that the Commissioner of Public Welfare would exercise sole judgment as to the extent and availability of such funds.

Further, the contract provided that either party may withdraw from the agreement upon thirty days notice in writing to the other party. The Department was to continue to provide emergency assistance in those categories for which it had responsibility and which were not covered by the policies of the 'central intake process'. The Community Council Committee was required to meet at least once each three months to evaluate the progress of this project.

The contract, approved as to form by the Arizona Attorney General's office, became effective as of July 1, 1965.

On May 24, 1967, the Welfare Department submitted to the respondent Jordan, as it had done in the past, vouchers representing claims pursuant to the above contract. The claims, presented by the Community Council and assigned to the Salvation Army, represented 40% Reimbursement for the supplying of food, lodging, clothing, cash assistance, transportation, laundry and cleaning for the month of April 1967, and totaled $5,399.17.

Respondent Jordan rejected the claims on the same day for the reason that said payment would be in conflict with the constitution of the State of Arizona. ¹ The claims were resubmitted the next day and again rejected the same day by respondent Jordan.

Under the provisions of A.R.S. § 41--141 (Supp.1966) respondent Jordan submitted the claims to respondent Williams, Governor of the State of Arizona. On May 25, 1967, the Governor 'returned without approval of said claims in whole or in part'.

The refusal of the respondents to allow these same claims which were admittedly properly itemized and approved by the authorized employee of the Department of Public Welfare fulfills the jurisdictional requirement for the commencement of an action for a writ of mandamus in this Court. Hutchins v. Frohmiller, 55 Ariz. 522, 103 P.2d 956 (1940); Ariz.Const. Art. VI, § 5, subsec. 1 (Supp.1966); A.R.S. § 12--2021 (1956); A.R.S. § 41--141 (Supp.1966).

The respondents have conceded that their duties are purely ministerial with respect to the claims at issue, provided the expenditure is not prohibited by the Arizona Constitution.

The relevant constitutional provisions under which this question must be decided are as follows: Ariz.Const. Art. II, § 12 the relevant part of which states:

'No public money or property shall be appropriate for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.'

And Ariz.Const. Art. IX, § 10 which provides:

'No tax shall be laid or appropriation of public money made in aid of any church, or provate or sectarian school, or any public service corporation.'

The issue placed in its proper perspective is whether the state or any of its agencies can choose to do business with and discharge part of its duties through denominational or sectarian institutions without contravening constitutional prohibitions.

The respondents would have us adopt for this case of first impression the strict view that in essence no public monies may be channeled through a religious organization for any purpose whatsoever without, in fact, aiding that church contrary to constitutional mandate. We do not agree that such was the intent of the framers of the above cited constitutional provisions. The prohibitions against the use of public assets for religious purposes were included in the Arizona Constitution to provide for the historical doctrine of separation of church and state, the thrust of which was to insure that there would be no state supported religious institutions thus precluding governmental preference and favoritism of one or more churches. But the doctrine of separation of church and state does not include the doctrine of total nonrecognition of the church by the state and of the state by the church. The state constitutional provisions must be viewed in light of contemporaneous assumptions concerning the appropriate sphere of action for each institution. History is clear that as a state evolves from one decade to another the role of the state 'transcends traditional boundaries and assumes new dimensions' necessitating a revision of the idiomatic meaning of 'separation' to align it with 'the new realities if original purposes and expectations are to be realized'. See Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, 80 Harvard Law Review 1381, 1383 (May, 1967). Nor do we agree that the decisions of the courts in this nation necessarily lead to the conclusion that the respondents ask us to reach in the instant case.

A review of the cases relied upon as authority by both petitioner and respondent, along with other relevant cases is instructive here. Significant is the development of the law in Illinois. In the case of Cook County v. Chicago Industrial School for Girls, 125 Ill. 540, 18 N.E. 183, 1 L.R.A. 437 (1888), the Illinois court held that a statute allowing money to be paid by the State to a Catholic institution for the full tuition and maintenance of dependent girls committed by the county court was violative of Ill.Const. Art. 8, § 3, S.H.A. which prohibits appropriation of public moneys in aid of any church or any sectarian purpose. ²

Among the arguments porposed in Cook was one similar to an argument offered by the petitioner in the case before the bar: contributions in way of reimbursement to an ecclesiastical institution for valid services rendered to recipients of state support merely relieves the state of a burden that it would otherwise have to bear by substituting the organization for the state. This court will refer to such an argument as the 'doctrine of Substitution'. It has also been called the 'Value Received Theory' as the state receives 'value' in the form of aid to the destitute which it has a burden to support. The Illinois court rejected this argument on the ground that the ultimate logical conclusion is that all education could be turned over to sectarian institutions on this basis and be validly supported by state contributions. We also reject the 'Doctrine of Substitution' or 'Value Received Theory' for this same reason.

The argument insofar as it advances the 'value Received Theory' in this case also fails to reach the issue before this Court. The question before us is not whether the motive behind such appropriation and the effect thereof is to Aid the state by giving it value for its contribution of by relieving it of a burden; instead the question is simply does such appropriation unconstitutionally Aid the respective church?

The Illinois case also demonstrates another view which we shall call the 'Full Reimbursement Plan'. An important distinction to be made between th...