Garvey v. Trew

• Decision Date: 28 June 1946
• Docket Number: 4889
• Citation: 64 Ariz. 342,170 P.2d 845
• Parties: GARVEY, Secretary of State, v. TREW
• Court: Arizona Supreme Court

170 P.2d 845

64 Ariz. 342

GARVEY, Secretary of State, v. TREW

No. 4889

Supreme Court of Arizona

June 28, 1946

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

Proceeding by Wilmot W. Trew for a writ of mandamus requiring Dan E Garvey, as Secretary of State, to file a referendum petition or show cause for failure to do so. From a judgment making an alternative writ permanent, defendant appeals.

Reversed and remanded with directions.

John L Sullivan, Atty. Gen., and John W. Rood and Burr Sutter, Asst. Attys. Gen., for appellant.

Stockton & Karam, of Phoenix, for appellee.

Morgan, Judge. La Prade, J., concurs. Stanford, Chief Justice (specially concurring).

OPINION

Morgan, Judge.

At the First Special Session of the 17th Legislature, Chapter 11, House Bill 20, was enacted by a two-thirds vote, but without the emergency clause. It was approved by the governor on the 3rd day of October, 1945. Briefly, the bill directs the Arizona Corporation Commission to ascertain the fair value of the property of all public service corporations in the state furnishing gas or electricity "for the purpose of establishing a basis for rate-making purposes." The commission is directed and authorized to arrange with and secure the co-operation of the Federal Power Commission to assist it in the investigation. Affected public service corporations are required, upon notice by the commission, to file inventories and other data. Upon the completion of the property valuation investigation, the commission is directed to enter appropriate decrees, etc., "which shall thereupon become binding and effective and shall be enforced as to all persons concerned." The sum of $ 50,000 is appropriated to the commission for the payment of the expenses of the Federal Power Commission "in making the property investigation authorized by this act."

Within the time provided by the Constitution for the filing of referendum petitions, there were filed with the secretary of state petitions signed by the requisite number of qualified electors. The secretary, acting under the advice of the attorney general, declined to accept the petitions for official filing and advised the proponents of the referendum measure that he would not certify it for printing on the ballot nor include any reference to the measure in the publicity pamphlets. The grounds of the refusal were that the act being "for the support and maintenance of the corporation commission, a department of the state government created by the Constitution of Arizona, in the discharge of its constitutional duties," was not subject to the referendum.

Upon the complaint and application of appellee, as plaintiff, an alternative writ of mandamus was issued by the superior court, requiring the appellant, the defendant, to file the referendum petition or show cause for failure to do so. Upon issue joined and after hearing, the writ was made permanent. From the final order and judgment of the court, the defendant appealed.

Of the various matters called to our attention, we think it necessary to consider only two questions: First, is Chapter 11 an act to provide an appropriation "for the support and maintenance" of the corporation commission? Second, if Chap. 11 is such an appropriation measure, must it be passed by a two-thirds vote of the members of the legislature and contain an emergency section to exempt it from the provisions of the referendum? If either of these questions be answered in the affirmative, the judgment of the trial court must be sustained. On the other hand, if the act is an appropriation measure for the support and maintenance of a department of the state government, and does not require the emergency section, the secretary of state could not officially accept the referendum petitions for filing, and the judgment of the lower court must be set aside and the writ quashed.

The corporation commission is one of the departments of the state government created by the Constitution. Art. 15, Const. of Arizona; Phoenix Ry. Co. v. Lount, 21 Ariz. 289, 187 P. 933. It has very broad powers conferred upon it by the Constitution. In section 3, it is given full power to and is required to prescribe just and reasonable classifications, rates and charges to be made and collected by public service corporations within the state. It has power to inspect and investigate public service corporations doing business within the state (section 4). The legislature may enlarge its power and extend its duties (section 6). Section 12 specifically provides that charges made for services by public service corporations shall be just and reasonable. Section 14 mandatorily directs the commission to "ascertain the fair value of the property within the state of every public service corporation."

It will be observed from the foregoing constitutional powers that the legislature, by Chapter 11, conferred no new rights on the commission that it did not already possess. Nor are the powers of the commission limited to those expressly granted. We have held that the powers conferred by the article are merely the minimum, and that under the constitution, the commission may exercise all powers which may be necessary or essential in connection with the performance of its duties. Menderson v. Phoenix, 51 Ariz. 280, 76 P.2d 321; Van Dyke v. Geary, 244 U.S. 39, 37 S.Ct. 483, 61 L.Ed. 973. As stated, under the provisions of section 14, the commission is under a duty to ascertain the fair value of the property of every public service corporation doing business in the state. State v. Tucson Gas, Elec. Light & P. Co., 15 Ariz. 294, 138 P. 781. It is not limited as to agencies it may employ for this purpose. Obviously, it has the constitutional power, without any direction from the legislature, to enter into contracts with the Federal Power Commission for cooperation under the Federal Power Act. 16 U.S.C.A. § 797(c), Federal Power Act. The legislature may enlarge its powers and extend its duties but may not decrease its powers. Van Dyke v. Geary, supra; Menderson v. Phoenix, supra; Corporation Commission of Arizona v. Pacific Greyhound Lines, 54 Ariz. 159, 94 P.2d 443; State v. Tucson Gas, etc. Co., supra. Only through the granting or withholding of appropriations does the legislature have control over the commission in so far as the exercise of its constitutional duties are concerned.

From what has been said, it will be seen that Chapter 11 operates only as an appropriation measure. Its purpose is to provide the commission with funds to carry on its constitutional duties to ascertain "the fair value of the property within the state" of public service corporations furnishing gas and electricity for profit. In that respect the appropriation is for "the support and maintenance of the departments of the state government", within the meaning of Art. 4, Part 1, section 1(3), Const. of Arizona.

Does the fact that this appropriation was earmarked for a special purpose, to-wit, the payment of the expenses of the Federal Power Commission, compel us to treat the appropriation as one not for the support and maintenance of the corporation commission? If so, every appropriation coming within the budget act, which must specify the various expenditures for which the appropriation is made, would have to be considered as not for the support and maintenance of a department of government or a state institution, as the case might be. The provisions of the Constitution, Art. 4, Pt. 1, sec. 1(3), supra, that acts "to provide appropriations for the support and maintenance of the departments of the state and of state institutions" are exempt from the referendum would be almost wholly nullified. Patently, the test of whether the appropriation is for the support and maintenance is not the earmarking for a specific purpose, but rather are the funds appropriated for use in carrying out the objects and functions of the department. Here, the legislature in its wisdom saw fit to direct the commission to take advantage of the services of the Federal Power Commission to the end that a fair valuation might be had of all property by the corporation commission. It is not for us to say that the legislature did not act properly. Indeed, it would seem only fair both to the corporation commission and the public service companies that as a basis for rate making the proper value of the properties be ascertained. The legislature, the executive, the corporation commission and the courts, if cases should be brought up, are entitled to know the true facts. It may be that some utility rates are too low and others too high. No reason is apparent to us why the legislature, the direct representative of the people, does not have the right to make an appropriation for this purpose. If the valuation fixed is unfair, if the resulting rate is unsatisfactory or confiscatory, an appeal may be had (Art. 15, sec. 17, Const.) and relief afforded. It is not uncommon for the state to take advantage of the services of federal agencies. An example of this is the appropriation for expenditures to be made in co-operation with the United States Bureau of Reclamation, in making a water resources survey. Chap. 6, First Special Session, 16th Legislature, Laws 1944.

We conclude that the appropriation in Chap. 11 is for the support and maintenance of the corporation commission, and comes within the provisions of Art. 4, Pt. 1, sec. 1(3), supra.

We now proceed to consider the second question: Is an appropriation for the support and maintenance of a state department an emergency measure which must "be approved by the affirmative votes of two-thirds of the members elected to each house of the legislature, * * * and also approved by the governor" before it may be exempt from the referendum....