Faires v. Frohmiller, Civil 3853
| Decision Date | 12 April 1937 |
| Docket Number | Civil 3853 |
| Citation | 67 P.2d 470,49 Ariz. 366 |
| Parties | C. C. FAIRES, Petitioner, v. ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent |
| Court | Arizona Supreme Court |
Original proceeding in Mandamus. Alternative writ quashed.
Messrs Townsend & Jenckes, Mr. George M. Hill, for Petitioner.
Mr. Joe Conway, Attorney General, Mr. E. G. Frazier, Special Assistant Attorney General, for Respondent.
This is an original proceeding in this court by C. C. Faires hereinafter called petitioner, on his own behalf and that of twelve others, against Ana Frohmiller, as Auditor of the State of Arizona, hereinafter called respondent, asking that she be directed to issue to him certain warrants. The facts upon which the petition is based are in nowise in dispute and the question presented to us is solely one of law. We state these facts as follows:
Petitioner and those whom he represents were elected at the general election in 1934, one by the electors of each of the various counties of the state of Arizona, excluding the county of Maricopa, as judge of the superior court. At the same election, there were chosen by the electors of Maricopa county, three judges of the superior court. Under the Constitution of Arizona the term of office of each one of these judges began the first Monday in January, 1935, and extended until the first Monday in January, 1939. In the year 1936, there was chosen at the general election of that year one judge of the superior court by the electors of Maricopa county, whose term of office commenced on the first Monday of January, 1937, and expired the first Monday in January, 1941. In the month of November, 1936, the twelfth legislature of the State of Arizona, at a special session, increased the salaries then provided for the various judges of the superior courts of the state, to take effect in two equal installments, to an amount equal to that at which such salaries had been fixed before the act of the ninth legislature which had reduced the then existing salaries twenty per cent, thus in effect restoring such salaries to the pre-depression level. The act was an emergency one and by its terms became law December 31, 1936. Thereafter, and on the 17th of February, 1937, petitioner and his assignors filed claims with respondent for the difference between the amount claimed to be due each of them as salary, on the basis of the salary schedule fixed by the ninth legislature in 1933 (chap. 41), and that fixed by the twelfth legislature in 1936, respondent having previously issued to them warrants for their salaries from the first Monday in January, 1937, to the 15th day of February, 1937, on the basis of the 1933 salary schedule.
It is the contention of petitioner that the new salary schedule adopted by the twelfth legislature, in November, 1936, became effective as to him and each of his assignors on the first Monday of January, 1937. It is the position of respondent that it does not become effective as to them unless and until they are re-elected and qualified for the offices which they now hold. The contentions of both petitioner and respondent are based upon their respective interpretations of section 17, part 2, article 4, and section 5, article 6, of the Constitution of Arizona. The first-named section, as originally adopted, reads as follows:
"The Legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, after the services shall have been rendered or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office."
At the general election held on the 4th day of November, 1930, this section was amended by adding thereto the following provision:
"Provided, however, that when any legislative increase or decrease in the compensation of the members of any court, board or commission, composed of two or more officers or persons, whose respective terms of office are not coterminous, has heretofore or shall hereafter become effective as to any member of such court, board, or commission, it shall be effective from such date as to each of the members thereof."
The purpose and effect of this amendment cannot be stated more succinctly and clearly than the language of the amendment itself.
Section 5, article 6, is the one which creates the superior court or courts of the state. It reads, so far as the creative part is concerned, as follows:
"There shall be in each of the organized counties of the State a superior court, for which at least one judge shall be elected by the qualified electors of the county at the general election."
Petitioner's argument in support of his claim may be summarized as follows: There is within the state of Arizona one and only one superior court, which is composed at the present time of seventeen judges, four of whom are elected by the electors of the county of Maricopa, and the others, one by the electors of each of the other counties of the state. One of these judges, the Honorable G. A. Rodgers of Maricopa county, was elected in November, 1936, and before his new term of office commenced on the first Monday of January, 1937, the legislature increased the salaries of all of the seventeen judges. By the terms of the Constitution, as originally written, such salary increases would have been effective on the first Monday of January, 1937, only as to Judge Rodgers, the other sixteen judges being compelled to wait for their increases until after their re-election. But, by the amendment of 1930, when Judge Rodgers' increased salary became effective, the increase granted each of the other sixteen judges took effect also.
It is respondent's position that there are in the state of Arizona fourteen different and independent superior courts, one only of which is composed of two or more officers or persons, towit, the superior court of Maricopa county, and that such being the case, the amendment to section 17, supra, affects only the judges of the superior court of the county of Maricopa, the judges of the other thirteen courts being governed by the provisions of the section as it was originally adopted. We have, therefore, as determinative of the case a very clear and narrow question, to wit, is there but one superior court in the state of Arizona, composed of seventeen members, or are there fourteen superior courts, one of which has four members, and the other thirteen one member each. This question will be decided by the construction of our constitutional provisions in regard to the judiciary. Article 6 of the Constitution deals with the judicial department of government. The provisions referring to superior courts, so far as they bear directly on their creation, read as follows:
If there was nothing further in the Constitution in regard to such courts, there can be no question that there is more than one superior court within this state, for section 1 refers to such courts in the plural, and section 5 (the provision which actually creates them) says, "There shall be in each of the organized counties of the State a superior court." (Italics ours.) It would seem that it was impossible to declare more clearly than the language just quoted, since there were fourteen counties in the state of Arizona at the time our Constitution was adopted, there were fourteen separate superior courts established by that Constitution. Petitioner, however, points out that in many other parts of article 6, supra, the reference to this judicial tribunal is in the singular and not in the plural, and therefore argues that there is but one superior court in the state. It is true that in article 6 the language used is sometimes "superior court" and sometimes "superior courts." We think, however, upon examination it appears that in every case where the singular word is used, the context shows that the term applies equally to one court and to a number of courts in the disjunctive, while whenever the context shows that all the superior courts of the state (whether one or more) are are referred to conjunctively, the plural word is invariably found.
Our Constitution, so far as its judicial features were concerned, was evidently modeled on similar provisions of the Constitutions of California and Washington. Section 6, article 6, Constitution of California, referring to the superior courts, reads in part as follows:
"There shall be in each of the organized counties, or cities and counties, of the state, a superior court, for each of which at least one judge shall be elected by the qualified electors of the county, or city and county, at the general state election."
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