Crane v. Frohmiller

• Decision Date: 07 June 1935
• Docket Number: Civil 3649
• Citation: 45 P.2d 955,45 Ariz. 490
• Parties: A. W. CRANE, Petitioner, v. ANA FROHMILLER, as State Auditor, Respondent
• Court: Arizona Supreme Court

45 P.2d 955

45 Ariz. 490

A. W. CRANE, Petitioner, v. ANA FROHMILLER, as State Auditor, Respondent

Civil No. 3649

Supreme Court of Arizona

June 7, 1935

Original proceeding in Mandamus. Alternative writ quashed.

Mr Emmet M. Barry, for Petitioner.

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

Mr. Terrence A. Carson, Amicus Curiae.

OPINION

LOCKWOOD, C.J.

A. W. Crane, hereinafter called petitioner, filed an original proceeding in this court asking for a writ of mandamus against Ana Frohmiller, as auditor of the state of Arizona, hereinafter called respondent, to compel her to pay two claims against the state, one of which was made by petitioner personally and the other of which was assigned to him by Thomas A. Flynn. Respondent demurred to the petition, and the matter is before us upon the demurrer.

An earnest request was made to this court by counsel for both petitioner and respondent that we take up this case out of its regular order and consider it immediately; it being asserted that vital interests of the state were involved therein and that its rights would be greatly prejudiced if a prompt decision of the points involved was not had. It was represented to us by the state tax commission and the Attorney General that there are suits now pending in the federal courts involving many million dollars of taxes; that the state of Arizona is the real defendant in such actions; that plaintiffs are pressing the cases for trial, and, in order that the state might properly present its defense, an immediate determination of the questions herein was imperative. For this reason we have laid aside all pending matters and devoted ourselves to a consideration of the case.

The precise legal question before us is whether upon the facts stated in the petition it is the imperative duty of respondent to approve the claims presented. We therefore summarize its allegations as follows: On the 7th day of January, 1935, which was the date for the convening of the regular session of the Twelfth Legislature, there were pending in the District Court of the United States ten suits, in which various corporations were plaintiffs and the state tax commission, representing the interests of the state, was defendant, contesting tax assessments on the properties of the plaintiffs for the years 1933 and 1933. There were also pending in the superior courts of the state two suits wherein certain other corporations were contesting the assessments of their property for the year 1934. On the 21st of January six of these suits in the district court, filed by one of the corporations, were dismissed without prejudice, and immediately thereafter three new suits were filed by such corporation, contesting the same assessments which were contested in the six suits dismissed. While the Twelfth Legislature was in session, and while all these suits were pending, the Attorney General of the state of Arizona was summoned to appear before a joint session of the Appropriation Committee of the Senate and House for the purpose of determining what provision should be made by the legislature to provide funds for the defense of the suits. In response to this request, the Attorney General did appear and advised the legislature that he could not determine what moneys would be necessary to make a defense to the suits and asked it to make such provisions as it deemed necessary to meet the situation. Various members of the legislature and the Governor discussed the matter, and, after considering what they believed to be the various available remedies, and particularly the provisions of chapter 61 of the Session Laws of 1931, the Governor advised the legislature that he thought that he could take care of the situation without the necessity of any new legislation. The Attorney General, however, was not satisfied with this, and informed the legislature that he thought an additional appropriation for the purpose of assisting in the defense of such suits was necessary, and in pursuance of this request there was included in the general appropriation bill of 1935 the following provision:

"Subdivision 33. Governor's Tax Litigation Fund.

For the 24th Fiscal Year

For the 25th Fiscal Year

Tax Suits... $10,000.00

"There is hereby appropriated to the Governor's General Fund the sum of $10,000.00 or so much thereof as may be necessary for the prosecution, defense or settlement of pending tax litigations. Said sum to be used and expended in conjunction with the Attorney General's Office. This appropriation shall be exempt from the provisions of the Financial Code and any balance remaining at the end of the fiscal year shall not revert to the general fund."

About the 21st of March, 1935, and after all the things above set forth had happened, the legislature adjourned. Thereafter negotiations were entered into for a compromise of the two suits pending in the superior courts of the state, and they were duly settled without expense to the state. It was impossible to settle certain of the suits pending in the federal courts, and on the 25th day of April the Attorney General and the tax commission, being satisfied that those cases would have to be tried upon their merits, requested the Governor to authorize the tax commission to incur debts and liabilities against the state to the amount of $25,000, under chapter 61, supra, for the purpose of defending these suits. In accordance with such request, the Governor, after reciting the facts in regard to the litigation involved, on April 29th by a proclamation stated as follows:

"Now, therefore, I.B.B. Moeur, Governor of the State of Arizona, in accordance with the act herein named, declare and proclaim the fact that the Tax Commission is authorized to incur debts and liabilities against the State of Arizona in defense of said suits herein named in the sum of Twenty-five Thousand ($25,000.00) Dollars, or such amount thereof as may be necessary, to be paid as other claims against the State, from the General Fund."

Shortly thereafter the federal court ordered defendant to answer in certain of the suits aforesaid, and the state tax commission employed Thomas A. Flynn as special counsel, at the rate of $50 per day, who assisted the Attorney General's office to prepare the answers in those cases. It also became necessary to gather evidence in support of the answers, and the commission employed experts for the preparation thereof, among whom was petitioner herein; the compensation of the latter being fixed at the rate of $20 per day. Petitioner and Flynn each performed one day's service under the employment above set forth, and then filed claims against the state of Arizona for such services, based on the provisions of the Governor's proclamation, as aforesaid, which were duly approved by the tax commission, and by it presented to the respondent for her approval as auditor. She refused to give this approval, for the reason that in her opinion the Governor's proclamation authorizing the incurring of liability by the tax commission to the extent of $25,000, as above set forth, was invalid, whereupon this petition was filed.

The question before us is whether on this state of facts it is the duty of the auditor to approve the claims in question. Section 5 of article 9 of the Constitution of Arizona reads in part as follows:

"... No money shall be paid out of the State treasury, except in the manner provided by law."

Provisions of this nature appear in many state constitutions, and they have universally been interpreted to mean that the people's money may not be expended without their consent either as expressed in the organic law of the state or by constitutional acts of the legislature appropriating such money for a specified purpose. Dickenson v. Clibourn, 125 Ark. 101-105, 187 S.W. 909; People v. Goodykoontz, 22 Colo. 507, 45 P. 414; State v. Burdick, 4 Wyo. 272, 33 P. 125, 24 L.R.A. 266. The rule is so well known and so generally accepted that no further citations are needed to support it.

There can be no contention that the Constitution itself authorizes the payment of the claims in question from the state treasury, and we therefore turn to the statutes to see whether the legislature has affirmatively and constitutionally given such authorization. It is generally held that the legislature is supreme in matters relating to appropriations, except so far as there are constitutional restrictions upon it. LeFebvre v Callaghan, 33 Ariz. 197, 263 P. 589; People v. Pacheco, 27 Cal. 175; Graham v. Childers, 114 Okl. 38, 241 P. 178; State v. Zimmerman, 183 Wis. 132, 197 N.W. 823. And an appropriation need not be made in any particular form of words nor in express terms; all that is required being a clear expression of the legislative will on the subject. Proll v. Dunn, 80 Cal. 220, 22 P. 143; Davis v. People, 78 Colo. 521, 242 P. 995, 996. But there are two limitations, not as a rule expressed in precise language in the various state Constitutions, but nevertheless almost universally upheld, as implied therein. The first is that the legislature may not delegate its power to make laws to any other person or body, except when authorized by the Constitution. Schechter Poultry Co. et al. v. United States, 295 U.S. 495, 55 S.Ct. 837, just decided; Board of Harbor Commissioner of Port of Eureka v. Excelsior Redwood Co., 88 Cal. 491, 26 P. 375, 22 Am. St. Rep. 321; State v. Keener, 78 Kan. 649, 97 P. 860, 19 L.R.A. (N.S.) 615; State v. Thompson, 149 Wis. 488, 137 N.W. 20, Ann. Cas. 1913C 774, 43 L.R.A. (N.S) 339; 6 R.C.L.,p. 164. It therefore must itself make any appropriation which authorizes money to be drawn from the state treasury, and it cannot delegate that power to another. The...