Hernandez v. Frohmiller, 5202

Decision Date04 April 1949
Docket Number5202
Citation204 P.2d 854,68 Ariz. 242
PartiesHERNANDEZ v. FROHMILLER et al
CourtArizona Supreme Court

Mandamus proceeding by Filomena Hernandez against Ana Frohmiller, State Auditor of the State of Arizona, to require respondent to allow claim of petitioner and to draw a warrant in favor of petitioner for wages due petitioner for personal services rendered to the state, wherein Roy Hislop and others, constituting the Arizona State Civil Service Board intervened.

Alternative writ made permanent.

Whitney Ironside & Whitney, of Phoenix, for petitioner.

Charles L. Strouss, of Phoenix, for respondent.

Perry M. Ling, Asst. Atty. Gen., for intervenors.

William P. Mahoney, Jr., of Phoenix, for American Federation of Labor, amicus curiae.

Jack Choisser, of Phoenix, and Thomas J. Elliott, of Tucson, for Cities and Towns of Arizona, amicus curiae.

John W. Corbin, of Phoenix, for City of Glendale, amicus curiae.

James A. Walsh, of Phoenix, for Police and Fire Departments of City of Phoenix, and Deputies in Office of Sheriff of Maricopa County, amicus curiae.

Warren McCarthy, Deputy County Atty. of Maricopa County, of Phoenix, for Board of Supervisors, amicus curiae.

Floyd E. Thomas, of Tucson, for Board of Regents of University and State Colleges of Arizona, amicus curiae.

Windes, Judge. Udall, Stanford and Phelps, JJ., concur.

Note: Justice DeCONCINI having announced his disqualification, the Honorable DUDLEY W. WINDES, Judge of the Superior Court of Maricopa County, was called to sit in his stead. While Chief Justice LaPRADE actively participated in the determination of all issues raised by this appeal, his illness has delayed the preparation of this opinion.

OPINION

Windes, Judge.

An alternative writ of mandamus was issued out of this court commanding Ana Frohmiller as auditor of the state of Arizona to audit and allow the claim of petitioner and to draw a warrant in her favor on the treasurer of the state of Arizona for wages due petitioner for personal services rendered to the state, or show cause why she had not done so. The auditor has declined and refused to allow the claim on the ground that to do so would be in violation of section 6 of that certain initiative measure enacted at the general election of November 2, 1948, and hereinafter referred to as the civil service act. Petitioner alleges that the initiated measure is unconstitutional and void, and it is, therefore, the auditor's duty to audit and allow the claim.

In response to the writ, respondent admits that she, but for the provisions of the civil service act, is legally obligated to issue the warrant. Respondent takes the position that as a state officer she should assume that the civil service act is constitutional, and that it is her duty to comply with the provisions thereof unless and until it has been adjudged unconstitutional by this court.

Petitioner contends that the civil service act is unconstitutional in that it (1) delegates legislative power to a civil service board in the executive branch of the state government; (2) is vague, ambiguous, confusing, uncertain, and incomplete, and does not establish fixed standards or guides for its administration; and (3) is violative of the essentials of due process of law, and offends article 4, part 2, section 13 of the Arizona constitution requiring that subjects embraced in an act shall be expressed in the title. The civil service board provided for under the act and which was appointed by the governor was allowed to intervene, and filed a motion to dismiss the petition upon the ground it fails to state a claim for which relief could be granted.

Briefs amici curiae were filed on behalf of Maricopa county, the cities of Phoenix, Tucson, Glendale, Mesa, the town of Tolleson, the Board of Regents of the University and State Colleges of Arizona, the American Federation of Labor, and the Phoenix Police and Fire Departments, and Sheriff's Deputies.

Due to the fact that the entire payroll of the state for its officers and employees had been tied up by the auditor, the court immediately began its examination of the legal questions presented with the view of making a prompt determination of the matter. Being of the unanimous opinion that the initiative measure is unconstitutional and void in its entirety, an order was entered on January 31, 1949, that the alternative writ be made permanent, with the statement that due to the exigencies of the situation involving a tie-up of the state payroll it was advisable to announce the court's decision, and that the written opinion would be prepared later.

Subsequent to the election, the votes were duly canvassed, disclosing that the measure had carried, whereupon the governor issued his proclamation declaring the measure approved and adopted by the electors in the form and manner following:

"An Act

To establish a civil service board with powers to classify all positions in the state civil service according to their respective duties and responsibilities, to establish rates of compensation for all classes of positions, to determine by competitive performance the qualifications of all candidates for positions in the state civil service, to make rules and regulations covering all personnel transactions, to regulate all conditions of employment in the state civil service; providing for the administration of the boards powers by a state personnel officer, providing for an annual appropriation by the legislature to enable the board to execute such powers; requiring the county boards of supervisors in class I counties and authorizing the county boards of supervisors in all other counties to establish civil service systems covering certain appointive officers and employees.

Be it enacted by the people of the state of Arizona:

Section 1. Purpose of Act. It is the purpose of this Act:

(a) To promote and increase economy and efficiency in the State Service.

(b) To provide a comprehensive personnel system for the State Civil Service, wherein:

First: Positions involving comparable duties and responsibilities are similarly classified and compensated.

Second: Appointments are based upon merit and fitness ascertained through practical and competitive examination.

Third: State civil service employment is made a career by providing for security of tenure and the advancement of employees within the service wherever practicable.

Fourth: The rights and interests of the State civil service employee given consideration in so far as consistent with the best interests of the State.

Fifth: A high morale is developed among State Civil Service employees by providing adequately for leaves of absence, vacations, and other considerations for the general welfare of said employees.

Sixth: Tenure of civil service employment is subject to good behavior, efficiency, the necessity for performance of the work, and the appropriation of sufficient funds.

The State Civil service is hereby declared to consist of all positions in the State service including positions with any Board, office, or commission of the State, or any political subdivision thereof, except those filled by popular election, public officers, members of board and commissions, employees of courts of record, of the legislature, members of teaching staffs of all educational institutions maintained or supported by the State, all persons in the military and naval forces of the State, and not to exceed one other exempt position in each department, board or commission, or two other exempt positions for each elected administrative officer.

Section 2. There is hereby created a civil service board to consist of three persons appointed by the governor subject to confirmation by the Senate for six-year overlapping terms, the three original appointments to be for two, four and six years respectively. This board shall supersede any existing State personnel agencies and succeed to their appropriations, records, supplies, equipment and other property. Each member of the board shall be paid twenty-five dollars per day and necessary expenses actually incurred for each day devoted to duties as a member of the board.

Section 3. The board shall classify all positions in the State civil service according to their respective duties and responsibilities, establish rates of compensation for all classes of positions, approve or disapprove disbursements for all personnel services, determine by competitive performance exclusively on the basis of merit, efficiency and fitness, the qualifications of all candidates for positions in the State civil service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the State civil service. No person shall be appointed to or promoted in the State civil service who has not been certified as qualified for such appointment or promotion by the board.

All persons in the State holding positions in the classified services as established by this Act at the time it takes effect shall retain their position until discharged, reduced, promoted or transferred in accordance with provisions of this Act, and rules and regulations of the Civil Service Board governing same.

No removals from or demotions in the State Civil Service shall be made except for just cause which shall be determined by the Board.

Section 4. The Board shall employ a State personnel officer who shall be in the classified civil service and who shall be selected after open competitive examination. The personnel officer shall employ, subject to the provisions of this amendment, the necessary staff.

Section 5. To enable the board and the personnel officer to execute these powers, the legislature shall appropriate for each and every fiscal year a sum not...

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  • State ex rel. Graham v. Board of Examiners, 9094
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    ...constitutional separation of the powers of government. We agree with a subsequent assertion of the Arizona court in Hernandez v. Frohmiller, 68 Ariz. 242, 204 P.2d 854, 865: '* * * after a statute has been passed by a vote of the people and promulgated as the law, this court's sphere of inq......
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