Hudson v. Kelly, 5817

• Decision Date: 13 November 1953
• Docket Number: No. 5817,5817
• Citation: 76 Ariz. 255,263 P.2d 362
• Parties: HUDSON v. KELLY, State Treasurer.
• Court: Arizona Supreme Court

Page 362

263 P.2d 362

76 Ariz. 255

HUDSON v. KELLY, State Treasurer.

No. 5817.

Supreme Court of Arizona.

Nov. 13, 1953.

Darrell R. Parker, Phoenix, for petitioner.

Ross F. Jones, Atty. Gen., Timothy D. Parkman, Sp. Asst. to the Atty. Gen., Perry Ling, Special Counsel, Phoenix, for respondent.

R. G. Langmade, Phoenix, amicus curiae.

LA PRADE, Justice.

On July 18, 1953, this court ordered a peremptory writ of mandamus to issue in this proceeding which was determinative of the issues involving the constitutionality of the financial administration act of 1953. Due to the exigencies of the situation then existing no written opinion was delivered. Now having had time to prepare a written decision we hereby state the reasons for the issuance of the peremptory writ and the holding that the act was unconstitutional in its entirety.

On July 11, 1953, C. A. Hudson, doing business as Hudson Tire Company, invoked the original jurisdiction of this court to secure a writ of mandamus directed to J. W. Kelly, as state treasurer of the State of Arizona, to compel the latter to honor and pay a certain warrant theretofore issued by the state auditor to petitioner in payment of automobile tires that had been purchased from him by the state highway department.

Under the procedure that existed prior to June 29, 1953, this warrant would ordinarily have been paid as a matter of course. In this instance the respondent refused to pay the warrant for the reason that the Legislature, by Chapter 89, Laws of First Regular Session of the 21st Legislature, effective June 29, 1953, had enacted a completely new law providing, among other things, for the creation of a state purchasing agent in the division of purchase and property control of the newly created department of finance, and that the purchase from petitioner had not been made by the state purchasing agent. The treasurer offered the additional reason that the Act, Section 30(b), specifically declared that all purchases made contrary to the Act to be null and void. The respondent took it to be his duty, as custodian of the state's funds, not to pay them out on an order of an officer not authorized to audit the claim or order its payment by a warrant.

Petitioner claimed that said Chapter 89, creating a department of finance, was unconstitutional and void, and that as a consequence the treasurer had no legal excuse for not paying the warrant. Petitioner asserted that the Act was unconstitutional for the following reasons: (a) That the title of the Act as fatally defective and in contravention of Section 13, Part 2, of Article 4 of the Constitution of the State of Arizona, which provides as follows:

'Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.'

(B) That the Act purports to revise, amend and repeal existing statutes by reference, in contravention of Section 14, Part 2, of Article 4 of the Constitution of the State of Arizona, which provides as follows:

'No act or section thereof shall be revised or amended by mere reference to the title of such act, but the act or section as amended shall be set forth and published at full length.'

(C) That the Act and the whole of the operative portions thereof seek to repeal existing statutes by implication and by undertaking to override the specific with the general provisions of the said Chapter 89; (D) That the Act constitutes an unlawful attempt to delegate legislative authority in contravention of Article 3 of the Constitution of the State of Arizona, providing for distribution of powers; (E) That the Act is unconstitutional and void for the reason that Section 10(a) thereof purports to strip the state auditor of all the powers, duties and authority of that office, and thereby violates Section 1 of Article 5 of the Constitution of the State of Arizona, enumerating executive officers of the state; and (F) That the Act is in its entirety so vague, indefinite and uncertain, both as to title and content, as to be unenforceable and unconstitutional under the rule of this court as announced in Hernandez v. Frohmiller, 68 Ariz. 242, 204 P.2d 854.

Prior to the effective date, June 29, 1953, the state's many offices, institutions, departments and agencies directly made necessary purchases of supplies and materials for their maintenance for which there was statutory authorization. Immediately after the effective date of the Act of most serious situation arose in that it was not until July 8, 1953, that the department of finance was activated by the appointment of board members who qualified the following day. A commissioner of finance was appointed on July 8th and qualified the same day. By the provisions of the bill, Section 8, there was created 'a division of purchases and property control' to be supervised and controlled by a state purchasing agent. All purchases of supplies and materials are, by the terms of the Act, funneled through the division of purchases and property control. By the provisions of Section 30, all state agency purchases must be through the state purchasing agent, and all contracts for supplies made by him. All contracts otherwise made are declared to be null and void and the department head or employee making such contract is liable for the cost thereof. Serious penalties are set up for violation of the terms of the Act, and as a further penalty and officer or employee of a state agency found guilty of a violation of any of the provisions of the Act might also forthwith be removed from office or employment. Although the board was nominally activated on the 9th of July, 1953, two days before the purchases in the instant case were made the department of finance had not begun to function. The various heads of divisions had not been appointed other than the commissioner of finance, and there existed an aggravated state of uncertainty wherein the state's many offices, departments and agencies were in a serious state of quandary as to where and how to proceed in the matter of securing and paying for purchases and supplies. The Act made no provision for a transition period during which the state's offices, departments and agencies could functionally exist within the law, and a virtual state of paralysis of operation existed. This was the stage setting at the time the petition for the writ was filed. This court concluded to take jurisdiction, being of the opinion that under prior decisions of this court a writ should issue and that the constitutionality of the Act could be determined in such a proceeding. Tillotson v. Frohmiller, 34 Ariz. 394, 271 P. 867; Hudson v. Brooks, 62 Ariz. 505, 158 P.2d 661; Cockrill v. Jordan, 72 Ariz. 318, 235 P.2d 1009. See also Stockman v. Leddy, 1912, 55 Colo. 24, 129 P. 220, 221. Although the petition was for an alternative writ it was heard upon notice and was treated by the court and all the parties as an application for a peremptory writ. This hearing was had on the 17th day of July, 1953, at which time extensive arguments were heard. Written briefs had theretofore been filed with the court. The following day the court unanimously concluded that the financial administration act of 1953 was unconstitutional and void in its entirety, at which time it ordered that a peremptory writ issue directing the state treasurer to honor and pay the warrant under consideration.

At the time we directed the peremptory writ to issue we were mindful of the general rule that every legislative act is presumed to be constitutional, and every intendment must be indulged in by the courts in favor of its validity, and on many occasions had voiced its acknowledgment of the existence of this rule and had been guided by it. As late as March 30, 1953, in our case of State v. Gastelum, 75 Ariz. 271, 255 P.2d 203, 204, we said, referring to previous holdings of the court:

'* * * we have said that we would not declare a legislative act unconstitutional unless satisfied beyond a reasonable doubt of its unconstitutionality, * * *.'

In the early case of Gherna v. State, 1915, 16 Ariz. 344, 361, 146 P. 494, 501, wherein an attack was made on the constitutionality of a law, this court made the following pronouncement with reference to the rule of construction to be followed:

'A pronouncement of the invalidity of an act or any part of an act of the people in their legislative capacity is, and must always be, approached with a delicacy which the situation invites. Under our oaths as judges, this power must be exercised in cases; but nevertheless it is our plain duty to uphold an act of the law-making power whenever it is possible to do so. Every presumption is in favor of its validity, and the conflict between the legislative act and a constitutional provision must be very clear and utterly irreconcilable by any reasonable interpretation before this court would be called upon to annul the act or any separable part of it.'

For other statements of the rule see Laney v. State, 20 Ariz. 416, 181 P. 186; State v. Davey, 27 Ariz. 254, 232 P. 884, 885; State v. Harold, 74 Ariz. 210, 246 P.2d 178; Duhame v. State Tax Commission, 65 Ariz. 268, 179 P.2d 252, 171 A.L.R. 684, and cases therein referred to.

At the time of the issuance of the writ we concluded that the Act parently violated Section 1 of Article 5 of the Arizona Constitution enumerating who shall constitute the executive officers of the state. We are still of the same opinion. This constitutional provision provides that

'The executive department of the state shall consist of governor, secretary of state, state auditor, state treasurer, attorney-general, and superintendent of public instruction * * *.'

The section then in referring to these officers concludes by providing that

'* * * They shall perform...