Donaldson v. Sisk, Civil 4385

Citation113 P.2d 860,57 Ariz. 318
Decision Date02 June 1941
Docket NumberCivil 4385
PartiesG. B. DONALDSON, Petitioner, v. DEAN A. SISK, ROBERT D. KENDALL and JOHN M. SAKRISON, as Members of and Constituting the UNEMPLOYMENT COMPENSATION COMMISSION of Arizona and ANA FROHMILLER, as Auditor of the State of Arizona, Respondents
CourtSupreme Court of Arizona

Original proceeding in Mandamus. Alternative writ made peremptory.

Mr Henry H. Miller and Mr. Charles N. Walters, for Petitioner.

Mr Arthur M. Davis, Mr. D. Kelly Turner and Mr. Richard Minne for Respondent Commission.

Ana Frohmiller, State Auditor, in propria persona.

OPINION

LOCKWOOD, C.J.

This is an original petition for mandamus by G. B. Donaldson, petitioner, against Dean A. Sisk, Robert D. Kendall and John M. Sakrison, as members of the Unemployment Compensation Commission of Arizona, called the commission, and Ana Frohmiller as state auditor.

The allegations of the petition, stated in narrative form, are, in substance, as follows: In 1936 the legislature adopted chapter 13 of the First Special Session laws of that year, commonly referred to as the unemployment compensation law, Code 1939, § 56-1001 et seq. It has since been amended but the amendments are not material to the present case. This law was passed subsequent to the Wagner-Peyser Act, 29 U.S. C.A., § 49 et seq., and the Federal Social Security Act, 42 U.S.C.A., § 301 et seq., adopted by the federal government in June, 1933, and February, 1935, respectively. In order to conform to the federal laws above referred to, the Arizona law accepted certain provisions of the federal acts, and is receiving federal aid thereunder. Among other things these federal rules require a single administrative head for the approval of personnel action, travel, authorization purchases, procurements and expenditures under the compensation law, and also require a personnel merit system to be adopted and conformed to by the states. Section 56-1011, Arizona Code, 1939, therefore provides in subdivision (d) as follows:

"Personnel. Subject to other provisions of this act, the commission is authorized to appoint, fix the compensation, and prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as may be necessary in the performance of its duties. All positions shall be filled by persons selected and appointed on a non-partisan merit basis...."

Pursuant to this section the commission adopted a merit system and a classification plan conforming thereto, setting forth the various positions created thereby and the method of appointment and removal of its officers and employees. The functions of the commission were divided by the statute into two parts, the unemployment compensation division and the employment service division. These two divisions were required to be separate administrative units except so far as the commission found the separation impracticable. Section 56-1010, Arizona Code, 1939. Among other things the classification plan provided for the position of an executive director, stating that this director might also be the acting director of the unemployment compensation division of the commission. In accordance with the rules established by the commission, as aforesaid, petitioner took the merit system examination for the position of executive director, and as a result thereof he was appointed to such position probationally on May 9, 1939, and permanently on November 9, 1939, and entered upon the duties of executive director and ex-officio director of the unemployment compensation division and performed them continuously in accordance with the rules of the merit system until January 13, 1941, and is still ready, able and willing to carry out the functions of such position.

It is then alleged that on January 13, and immediately after their appointment as members of the commission, the commissioners aforesaid attempted to abolish the position of executive director, and to delegate the duties thereof as fixed by the regulations of the commission to another position designated as administrative officer, and, contrary to the rules and regulations of the merit system, attempted to combine the duties of director of the employment service division and director of the unemployment compensation division, which was only a subterfuge for the purpose of enabling the commission to substitute one employee for another, and that the effect of such conduct was to remove petitioner from his position. As a result of these actions the commission claims that petitioner no longer holds any employment under it, has refused to approve his salary claims as executive director, and the auditor has failed to pay them. The prayer of the petition is (a) that the commissioners be compelled to reinstate petitioner as executive director and acting director of the unemployment compensation division, (b) that they be required to prepare and approve claims for petitioner's salary from February 28, 1941, (c) that their acts in attempting to discharge him be declared null and void, and (d) that the auditor be compelled to issue warrants for his salary since said February 28.

The commission answered with a motion to strike, a demurrer, a plea in bar and an answer. The auditor answered with a demurrer.

We consider first the demurrer of the auditor. It appears from the petition that the only complaint against her is that she has not approved claims for petitioner's salary since February 28, but it also appears that no claims for such salary approved by the head of the department, to-wit, the commission, have ever been presented to her for payment. It cannot, therefore, be said that she is derelict in any of her duties, for the presentation of such approved claims is essential before she would be permitted by law to approve them under any circumstances. State v. Angle, 56 Ariz. 46, 104 P.2d 172. If the court grants the relief prayed for as against the commissioners it will then be necessary for petitioner to present his salary claims to the auditor. It is presumed that every public officer does his duty, and we are satisfied that the auditor, when a proper legal salary claim is presented to her, will follow the rules laid down by this court as to the law and do her duty in regard thereto. We think, therefore, her demurrer should be sustained.

We consider next the demurrer of the commissioners. It is urged in support thereof that petitioner has not alleged that he has done all things necessary to the regulations of the commission in regard to the method of an appeal from a dismissal, suspension or demotion under its merit system. These regulations require appeals from such action by the commission be made in a certain manner, and the petition does not allege this was done. If this were the ordinary "dismissal, suspension or demotion" provided for by the regulations, the point might be well taken, but it is not. It is an attempted abolition of the position held by petitioner which, if valid, removes him by reason thereof. We think this is not the character of "dismissal, suspension or demotion" referred to in the regulations of the commission, and that petitioner was under no duty to present his grievance to the merit system council in the manner provided by the regulations. The demurrer of the commission is overruled.

We next consider the motions to strike. These motions refer to various allegations in regard to the connection between the federal statutes and the Arizona law, and it is claimed that the allegations of the complaint in regard thereto are merely conclusions of law and not statements of fact. This requires a consideration of the legal effect upon this question of the alleged relations between the federal and the state law. Generally speaking, these allegations are that the federal law had certain provisions which it was necessary for the state law to comply with in order to secure federal aid. The state law depends for its validity and effect, so far as its employees and their compensation is concerned, solely upon the act of the Arizona legislature. The federal statutes referred to merely state, in substance, that if Arizona wishes to secure federal aid for the projects involved under its compensation law, it must do certain things. If it does not do these things, the failure does not affect the validity or interpretation of its laws but merely causes the federal government to cease any contribution to its operations. The question before us, therefore, is not what the federal government requires as a condition to its contribution, but what the Arizona law provides. It was not required, and could not be compelled, to adopt any of the provisions asked by the federal government, and the only effect of its refusal to do so was to cause the state to lose certain federal assistance. If, however, it did for any reason whatever adopt any part of the federal laws, rules and regulations, they are binding upon it, not because of the act of Congress, but because of the act of our own legislature. Any allegations that the Arizona law has adopted certain provisions of the federal law are relevant and pertinent; any allegations that the federal law has certain provisions which it requires the Arizona law to adopt as a condition precedent to the receiving of contributions from the federal government are irrelevant. We think the portion of paragraph III, reading as follows,"... and thus the State of Arizona has become entitled to, and is receiving Federal aid,...

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15 cases
  • Fleming v. Pima County
    • United States
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    ...terminated effective July 1. 2 Plaintiff commenced grievance procedures under the is not left without a remedy, see Donaldson v. Sisk, [57 Ariz. 318, 113 P.2d 860 (1941) ], and the record suggests that he has sought alternative;"the question of an improper layoff&nb......
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  • State ex rel. Bonner v. District Court of First Judicial Dist. in and for Lewis and Clark County
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    ...established by the law of 1941.' It is the second or last opinion in the Donaldson case, supra, 114 P.2d 907, and not the first opinion, 113 P.2d 860, that light upon the rules and principles of law here applicable. The rewarding of a person who happens to merit the approbation of the gover......
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