Hutchins v. Frohmiller

• Decision Date: 01 July 1940
• Docket Number: Civil 4266
• Citation: 55 Ariz. 522,103 P.2d 956
• Parties: W. R. HUTCHINS, as State Highway Engineer, Petitioner, v. ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent
• Court: Arizona Supreme Court

103 P.2d 956

55 Ariz. 522

W. R. HUTCHINS, as State Highway Engineer, Petitioner, v. ANA FROHMILLER, as StateAuditor of the State of Arizona, Respondent

Civil No. 4266

Supreme Court of Arizona

July 1, 1940

Original proceeding in Mandamus.Alternative writ quashed.

Mr. A R. Lynch and Mr. Charles L. Strouss, for Petitioner.

Mrs Ana Frohmiller, State Auditor, in Propria Persona.

OPINION

LOCKWOOD, J.

W. R Hutchins, hereinafter called petitioner, brought an original proceeding in mandamus in this court to compel Ana Frohmiller, as auditor of the state of Arizona, hereinafter called respondent, to issue warrants to petitioner in payment of certain claims against the state.These claims were set forth in six separate counts, the first including both an original and an assigned cause of action.

Respondent demurred to the petition on two grounds, (a) that the first, second, third and sixth counts did not state facts sufficient to constitute a cause of action, in that they showed the expenditures on which they were based were not made for a public purpose, and (b) to all the counts on the ground that the petition does not show that petitioner has exhausted the remedy afforded him by law, in that he failed to follow the procedure set forth in section 28,Revised Code 1928, before the bringing of this action.Respondent also raised the same issues by answer, alleging (1) that all of the claims on which the petition was based showed on their face that they were not for a purpose authorized by law, and (2) that they had not been presented for approval in the manner required by law.

We consider first the demurrer.It is a well-accepted rule that the state may adopt whatever method it prefers to determine whether it is liable upon or shall discharge a given obligation.It may select agents for this purpose to pass on the question, and provide that a claim shall be paid only upon the determination of such an agent.State v. Kelly,27 N.M. 412, 202 P. 524, 21 A.L.R. 156.Under this power the legislative authority, in the absence of constitutional restrictions, may provide any method it desires to be followed in presenting claims, and may make this method a condition precedent to the allowance and payment of such claims, and unless and until it is followed no action will lie against the state in its courts to enforce the payment of the claim, no matter how great may be the obligation.State v. Stout,7 Neb. 89;Phelps v. Auditor General,136 Mich. 439, 99 N.W. 374;People ex rel. Evers v. Glynn,126 A.D. 519, 110 N.Y.S. 405;State ex rel. Garneau v. Moore,37 Neb. 507, 55 N.W. 1078, 56 N.W. 154;Lincoln Safe Dep. & Trust Co. v. Weston,72 Neb. 536, 101 N.W. 16.

In the case of Yavapai County v. O'Neill,3 Ariz. 363, 29 P. 430, in construing the statutes relating to claims against counties, we held that while our statutes did not expressly provide that no action can be brought before a presentation of a claim against a county in the manner provided by law, yet that is the necessary implication, and that the method provided by statute for presenting a claim must be followed as a condition precedent to any action in the courts thereon.The same reasoning applies to claims against the state.We think, therefore, both on authority and reason, that before any action may be brought against a state officer, whether it be by mandamus or otherwise, to enforce the payment of a claim against the state, it must appear affirmatively that the claimant has first followed the method of presentation of the claim for approval set forth by the statutes, and only after it appears he is unable to secure an approval and payment of a legal claim in that manner will he be permitted to apply to the courts for redress.Let us determine then what is required of one who has a claim against the state before he may resort to the courts for its enforcement.

We have stated in the cases of Ward v. Frohmiller,ante, p. 202, 100 P.2d 167, andProctor v. Hunt,43 Ariz. 198, 29 P.2d 1058, that these requirements are found in sections 2619and28,Revised Code 1928.The first requirement is that an itemized claim be presented to the head of the department who, by law, must authorize and approve the expenditure, under section 2619, supra, and if his approval is obtained, it must then be presented to the state auditor for approval under section 28, supra.

A history of section 28, supra, is important as indicating the changed policy of the legislature upon a vital point in regard to the auditing of claims against the state.The Civil Code of 1913 provided for the method in which claims should be presented for approval, as follows:

"73.Persons having claims against the state shall exhibit the same, sworn to, with the evidence in support thereof to the auditor, to be audited, settled and allowed, within one year after such claim shall accrue, and not afterwards; and no claim shall be audited or allowed the items of which are not specifically and fully stated and set out."

"70.He[the auditor] shall: (1.)-- Audit and settle all claims against the state, payable out of the treasury, except only such claims as may be expressly required by law to be audited and settled by some other officer or person.

"(2.)-- Draw all warrants upon the treasury for money, except only in cases otherwise expressly provided by law...."

"77.In all cases of claims duly audited and allowed by the auditor as legal and proper charges against the state, and in all cases of specific appropriations, salaries, pay, or expenses, provided for by law, the auditor shall draw a warrant on the treasurer of the state for the amount as allowed in the form required by law, and notify the state treasurer, provided an appropriation has been previously made for such purpose."

"72.All warrants issued by the state auditor, as authorized by law, must be countersigned by the governor of the state before presentation to the state treasurer for payment or endorsement, and in case of absence of the governor from the state the said warrants shall be countersigned by the secretary of state, and unless so countersigned said warrants shall not be considered complete in form or effect, as legal obligations against the state."

It will be seen upon an examination of these sections that the claimant was required to present an itemized and verified claim to the auditor; that thereafter the auditor examined and settled the claims, and if they were legal and proper charges, drew a warrant upon the treasurer, which was countersigned by the governor, and thereafter the warrant became a legal obligation against the state.No other person was given any discretion in passing upon the claims except the auditor, the action of the governor when the claim was approved by the former being ministerial only.Winsor v. Hunt,29 Ariz. 504, 243 P. 407.If then the auditor, for any reason, disapproved a claim so presented every condition precedent to a review of his action by the courts had been performed, and a claimant might bring such action as was appropriate under the circumstances, for there was no requirement then that a claim must first be presented to the head of the department affected and approved by him.

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