Ethington v. Wright, 4981

• Decision Date: 26 January 1948
• Docket Number: 4981
• Citation: 66 Ariz. 382,189 P.2d 209
• Parties: ETHINGTON et al. v. WRIGHT et al
• Court: Arizona Supreme Court

189 P.2d 209

66 Ariz. 382

ETHINGTON et al. v. WRIGHT et al

No. 4981

Supreme Court of Arizona

January 26, 1948

Appeal from Superior Court, Maricopa County; Dudley W. Windes Judge.

Action by Peter H. Ethington and another against Wilson T. Wright and others, as members of and constituting the Corporation Commission of the State of Arizona, Ana Frohmiller, as State Auditor of the State of Arizona, and John L. Sullivan, as Attorney General of the State of Arizona, for declaratory relief adjudicating that certain act was unconstitutional and to enjoin defendants from performing any acts or expending any public funds under such act. From a judgment for defendants, the plaintiffs appeal.

Judgment reversed with directions.

Charles H. Reed, of Coolidge, for appellants.

John L Sullivan, Atty. Gen., and John W. Rood, Chief Asst. Atty. Gen., for appellees.

La Prade, Justice. Stanford, C. J., and Udall, J., concur.

OPINION

La Prade, Justice.

The appellants, hereinafter referred to as plaintiffs, as taxpayers of Pinal County, brought a class suit in the Superior Court of Maricopa County, in behalf of themselves and other taxpayers similarly situated, against the appellees, Wilson T. Wright, W. J. Eden, and Yale McFate, as the then members of and constituting the Corporation Commission of the State of Arizona, Ana Frohmiller, as State Auditor of the State of Arizona, and John L. Sullivan, as Attorney General of the State of Arizona, hereinafter referred to as defendants, for declaratory relief adjudicating Chapter 11, First Special Session, Laws of 1945, to be unconstitutional and void in the respects contended in plaintiffs' complaint and for injunctive relief enjoining defendants from performing any acts or expending any public funds under authority of said Chapter 11.

Defendants filed a motion to dismiss plaintiffs' complaint on the ground that it failed to state a claim upon which relief could be granted and in support of such motion contended that plaintiffs, as such taxpayers, were without sufficient interest to maintain the action; that Chapter 11 was a constitutional and valid enactment, and that it did not affirmatively appear from plaintiffs' complaint that any justiciable controversy existed between plaintiffs and John L. Sullivan as Attorney General and Ana Frohmiller as State Auditor. Plaintiffs now suggest, on this appeal, that if any justiciable controversy ever existed between plaintiffs and the Corporation Commission the same has become moot by reason of a change in the elected personnel of the Commission. Among other things the complaint alleged:

(1) That pursuant to the provisions of said Chapter 11, First Special Session, Laws of 1945, taxes have been levied by the State of Arizona upon real and personal property located in the State of Arizona, including real and personal property owned by the plaintiffs, for the purpose of providing the funds appropriated by said act.

(2) That plaintiffs and all other taxpayers of the State of Arizona are now being damaged and in the future will be damaged by the enforcement of the provisions of Chapter 11, First Special Session, Laws of 1945, in that public moneys will be unlawfully expended and taxes illegally exacted from the plaintiffs and other taxpayers of the State of Arizona if the provisions of said act are enforced.

(3) That the defendants pursuant to the terms of the Act had initiated negotiations with the Federal Power Commission for cooperation with the Commission looking toward the establishment of a rate base, and "That said defendants, as members of and constituting the Corporation Commission of the State of Arizona, are threatening to and unless restrained by this Court will do and perform the acts and things directed and required of them by said Chapter 11, First Special Session, Laws of 1945."

After a hearing upon defendants' motion to dismiss, the court sustained the same without specification of grounds. Thereupon plaintiffs filed notice of their election to stand upon their complaint and the court ordered judgment that plaintiffs take nothing by their complaint and for dismissal. This appeal is taken from the judgment entered pursuant to said order.

There having been no specification of grounds for the dismissal of plaintiffs' complaint, plaintiffs have assumed that there were only two grounds or theories upon which the court could have proceeded, and accordingly have submitted only two assignments of error. These assignments are (1) that the court erred in dismissing plaintiffs' complaint upon the ground that plaintiffs as taxpayers were not possessed of sufficient interest to maintain the action; (2) that the court erred in dismissing the complaint and ordering judgment that plaintiffs take nothing for the reason that plaintiffs' complaint states a cause of action for injunctive and declaratory relief since it appears upon the face of such complaint that Chapter 11, First Special Session, Laws of 1945, is unconstitutional and void and that plaintiffs were therefore entitled to the relief prayed for in their complaint.

In support of these assignments of error the following propositions of law were submitted:

Proposition of Law No. 1. A taxpayer of the state may maintain an action on behalf of himself and other taxpayers to prevent the unlawful expenditure of public funds under an unconstitutional statute.

Proposition of Law No. 2. Chapter 11, First Special Session, Laws of 1945, is unconstitutional and void in that it is an encroachment by the legislature on the exclusive powers vested by Article 15 of the Arizona Constitution in the Arizona Corporation Commission to make just and reasonable classifications and just and reasonable rates and charges to be made and collected by public service corporations within the state for services rendered therein, and to make reasonable rules, regulations, and orders regarding classifications, rates, and charges by which such corporations shall be governed in the transaction of business within the state.

Proposition of Law No. 3. Chapter 11, First Special Session, Laws of 1945, is an unconstitutional delegation of legislative powers of the State of Arizona to a federal agency in violation of Article 3 of the Arizona Constitution.

Proposition of Law No. 4. Chapter 11, First Special Session, Laws of 1945, is unconstitutional and void in that it violates the prohibition of the Tenth Amendment of the Constitution of the United States of America that the Federal Government may not exercise the powers reserved to the several states.

Proposition of Law No. 5. Chapter 11, First Special Session, Laws of 1945, is void in its entirety because the constitutional portions thereof are so dependent upon and inseparable from the unconstitutional portions of the act that the removal of the latter does not leave a completed enactment which the legislature may be deemed to have intended to pass independent of the unconstitutional portions.

Appellees have taken up the gauntlet laid down in the first four propositions of law submitted by appellants and have replied thereto, admitting that if any part of Chapter 11 is unconstitutional the entire act must fall. In other words they concede that appellants' proposition of law No. 5 is sound if Chapter 11 is unconstitutional in the respects urged by appellants. With this concept of the law we are in accord. We pointed out in the recent case of Millett v. Frohmiller, 188 P.2d 457, decided Jan. 5, 1948, not yet reported, that the appropriation provided in Chapter 11 could not be separated from the limitation placed upon it. We said:

"Even a cursory reading of Ch. 11 makes it clear that the legislature intended to there provide for a rate survey requiring the services of the Federal Power Commission. To hold that all that was intended was to provide for a rate survey to be made by any persons, group, or agency that the Commission might select would constitute gross judicial legislation. * * * The funds there appropriated are clearly wedded to the use for which they are prescribed. * * *"

In other words the tail goes with the hide; when one of the Siamese twins dies, the other one goes with him.

As additional propositions of law appellees have suggested that (1) it does not affirmatively appear from appellants' complaint that any justiciable controversy exists between them and the attorney general and state auditor; (2) it does not appear that appellants have pleaded any justiciable controversy between the Corporation Commission as presently constituted and appellants. Whether taxpayers such as plaintiffs may properly seek to enjoin the illegal expenditure of state funds presents an inquiry of first impression in this state. In opposition to the proposition that a taxpayer of the state may maintain an action in behalf of himself and other taxpayers to prevent the unlawful expenditure of public funds under an unconstitutional statute, defendants urge that the state as the sovereign stands on such a plane that the activities of its officials even if illegal cannot be restrained at the behest of a taxpayer.

It is now the almost universal rule that taxpayers of a municipality may enjoin the illegal expenditure of municipal funds. See annotations Ann.Cas.1913C, 884, and 36 L.R.A.,N.S., 1. The right to maintain such suits is based upon the taxpayers' equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation. For these and other reasons the courts of this country, with very few exceptions, have held that the same principles which permit a taxpayer to enjoin the waste or illegal expenditure of municipal funds permit the same kind of proceedings by state taxpayers...