Lockwood v. Jordan

• Decision Date: 07 May 1951
• Docket Number: No. 5508,5508
• Citation: 72 Ariz. 77,231 P.2d 428
• Parties: LOCKWOOD, Post Auditor, v. JORDAN, State Auditor.
• Court: Arizona Supreme Court

Page 428

231 P.2d 428

72 Ariz. 77

LOCKWOOD, Post Auditor, v. JORDAN, State Auditor.

No. 5508.

Supreme Court of Arizona.

May 7, 1951.

Edward Jacobson, of Phoenix, for petitioner.

John C. Hughes, Richard H. Elliott, of Phoenix, for respondent.

PHELPS, Justice.

This is an original proceeding in mandamus brought by petitioner Kenneth D. Lockwood, Post Auditor, against Jewel W. Jordan, State Auditor, respondent, to compel her to issue to him a warrant in payment of his salary as post auditor of the state of Arizona from March 16 to March 31, 1951.

The action is based upon the provisions of House Bill 74, Chapter 28, Session Laws of the 19th Legislature of the state of Arizona, First Special Session.

The Act creates the office of post auditor, prescribes his qualifications, duties, the manner of his appointment, term of office, his salary, and makes appropriation for the expenses of administration of the office including necessary salaries. The bill was approved by the Governor March 18, 1950.

Section 5 of the Act providing for the appointment of post auditor reads as follows: 'The post auditor shall be appointed by the president of the senate and the speaker of the house of representatives with the advice and consent of a majority of the senate and of the house of representatives. In the event of a vacancy in the office of post auditor while the legislature is not in session, or if in session fails to act, such vacancy shall be filled by a person named by a majority vote of the following: the Governor, the president of the senate and the speaker of the house of representatives. Such appointment to be confirmed at the next subsequent regular or special session of the legislature by the majority vote of the senate and of the house of representatives.'

Section 6 provides that: 'The term of office to which the first post auditor is appointed shall commence on the first day of July, 1950, and shall expire on the 30th day of June, 1955, and therefore the term shall be for four (4) years.' Salary was fixed at the sum of $7,200 per annum.

On October 1, 1950, the post auditor was appointed by the Governor, the president of the senate and the speaker of the house of representatives under the provisions of section 5 above quoted.

Thereafter on the second Monday in January, 1951, the first regular session of the 20th Legislature convened and adjourned March 18, 1951. During such session petitioner's name was not presented to it for confirmation as the Act provided.

However, on March 18, 1951, following the adjournment of the first regular session of the 20th Legislature petitioner was again appointed to such position in the same manner as before. It will be observed that the reappointment of petitioner was made on the same day the legislature adjourned.

Petitioner's salary was paid from the date of his appointment until March 16, 1951. On March 31 following, respondent refused to honor petitioner's payroll including his salary from March 16 to March 31. On April 2, 1951, petitioner filed an application with this court for the issuance of a writ of mandamus to compel respondent to issue her warrant in payment of his salary as hereinabove stated.

Respondent has set up in substance in her answer the following defenses. First, that chapter 28, supra, is illegal and void for the reason that it violates article 3 and article 5, sections 1 and 9, of the Arizona Constitution and therefore that petitioner was not in fact an officer of the state of Arizona during the period for which the claim for salary is filed; secondly, that if the Act is held to be constitutional the appointment of petitioner on October 1, 1950, and the failure of the legislature at its regularly convened session beginning the second Monday in January, 1951, to confirm his appointment had the legal effect of vacating said office and that the subsequent attempt to again appoint him was also illegal and void and that petitioner was not a public officer during the period and therefore not entitled to be paid out of the funds appropriated for the payment of the salary of post auditor. Article 3 of the constitution reads as follows: 'The powers of the government of the state of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.'

Section 1, article 5 of the constitution provides in so far as here material:

'The executive department of the state shall consist of governor, secretary of state, state auditor, state treasurer, attorney-general, and superintendent of public instruction each of whom shall hold his office for two years beginning on the first Monday of January next after his election, except that the terms of office of those elected at the election provided for in the Enabling Act approved June 20, 1910, shall begin when the state shall be admitted into the Union, and shall end on the first Monday in January, A. D. 1913, or when their successors are elected and qualified.

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'The officers of the executive department during their terms of office shall reside at the seat of government, where they shall keep their offices and the public records, books, and papers. They shall perform such duties as are prescribed by this constitution and as may be provided by law.'

Section 9 of article 5 provides: 'The powers and duties of secretary of state, state treasurer, state auditor, attorneygeneral, and superintendent of public instruction shall be as prescribed by law.'

We cannot agree with respondent's contention that chapter 28 violates either article 3 or article 5, sections 1 and 9, of the Arizona Constitution.

Adverting first to the contention that the Act under consideration violates article 5, sections 1 and 9 of the state constitution, the precise question was presented to this court in the case of Shute v. Frohmiller, 53 Ariz. 483, 90 P.2d 998, 1001. There the petitioner had been employed by the Colorado River Commission as its counsel under authority granted the commission in the act creating it. After entering upon his duties and after a portion of his monthly salary had accrued he presented his claim to the state auditor for audit and allowance. The auditor denied such claim upon the ground that the act creating the commission was unconstitutional and void in so far as it authorized the appointment by the commission of special counsel to represent it. The reason given was that the constitution of the state, by creating the office of attorney general in Arizona, had engrafted upon him all the powers and duties of the attorney general as the same was known at common law.

This court in that case observed that if the constitution had created the office of attorney general without referring to its powers and duties it might have been true under the authorities cited that the term 'attorney general' had been used in its common law acceptation since Arizona is a state in which the common law prevails; but that when the constitution provided in the same article in which it created the office of attorney general that he should perform such duties as were prescribed by the constitution and as may be provided by law and that his duties 'shall be 'as prescribed by law" it could not be said that the constitution was silent as to his powers and duties; that while it was true the constitution did not enumerate his duties but in stating that they shall be as 'prescribed by law' it referred to them and clearly made it the duty of the legislature to say what they should be. The court asserted that the expressions, 'as provided by law' and 'as prescribed by law' are susceptible of no other construction. It then concluded that the attorney general was not a common law officer, upon whom 'the duties and powers of the attorney general as the same was known at common law' had been engrafted but was one whose powers and duties could be ascertained only by resort to the statutes. The court further said:

'Notwithstanding the holding in these cases, (cases cited by respondent) we are clearly of the view that the mere naming of the attorney general in the constitution of this state does not amount to an implied restriction on the authority of the legislature in prescribing his duties. It is true in this state, as in others, that the office of attorney general, together with the other executive offices created by the constitution, is imbedded in that instrument, but it is equally true that the authority of the legislature to prescribe what the duties and powers of those occupying these offices shall be is imbedded there also, and, this being true, no common-law powers or duties can attach to that office but only those prescribed by statute. This statement, we think, completely answers the contention of counsel for respondent that 'the framers of the constitution in providing for the election of the attorney general by the people thereby reserved unto the people the right to have the well known functions of the attorney general discharged only by a person elected attorney general, and that the naming of this officer in the constitution amounts to an implied restriction upon legislative authority to create other and appointive officers for the discharge of such functions.' 'As just stated, the provision that the attorney general's powers and duties 'shall be as prescribed by law' is as much a part of the constitution as that portion of it creating the office itself and fully as binding, but it is a useless provision if it be true that the mere naming of the office in that instrument limits the legislature in prescribing the functions the person filling it must perform. Naturally the framers of the constitution intended, when they created the office of attorney general and made it elective, that its...