McDonald v. Frohmiller
| Decision Date | 19 November 1945 |
| Docket Number | Civil 4859 |
| Citation | 63 Ariz. 479,163 P.2d 671 |
| Parties | JAMES F. McDONALD, as Superintendent of the Bureau of Criminal Identification of the State of Arizona, and as Assignee of DANIEL B. O. SMITH, Assistant to the Superintendent of the Bureau of Criminal Identification of the State of Arizona, Petitioner, v. ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent |
| Court | Arizona Supreme Court |
ORIGINAL Proceedings in Mandamus.
Alternative Writ made peremptory.
Mr Terrence A. Carson, Messrs. Cox, Lockwood & Lockwood, Mr. J Fred Talley, for Petitioner.
Mr. Charles L. Strouss, for Respondent.
The petitioner James F. McDonald, as Superintendent of the Bureau of Criminal Identification of the State of Arizona and as assignee of Daniel B. O. Smith, Assistant Superintendent of the Bureau of Criminal Identification of the State of Arizona, directly filed in this court his petition for a writ of mandamus directed to Ana Frohmiller as Auditor of the State of Arizona. By his petition he seeks to compel the issuance of certain claimed salary warrants. An alternative writ was issued directing the auditor to issue the warrants or show cause in this court for noncompliance with the court's order. The petitioners, James F. McDonald and Daniel B. O. Smith, were at all times herein referred to respectively Superintendent and Assistant Superintendent of the Bureau of Criminal Identification of the State of Arizona, and in daily attendance in the performance of their duties.
The Bureau of Criminal Identification was established by the legislature in 1929. The Act covering its character and duties is found in the Code of 1939 in Art. 2 of Chap. 45 (Secs. 45-201 to 45-214, Arizona Code Annotated 1939). Thereby there was established two state offices; one that of superintendent and the other that of assistant superintendent. In both cases the salary was specifically fixed by the law; that of the superintendent at $ 3,600 per year, and for the assistant superintendent $ 2,400. The superintendent holds for a term of two years and until his successor is duly appointed and qualified; the assistant superintendent holds by appointment and subject to the will of the superintendent, but cannot be dismissed without cause. The legislature in 1945 attempted to abolish the Bureau of Criminal Identification, but the bill was vetoed by the governor and was not passed over the veto. This left Art. 2, Chap. 45, establishing the bureau, in full force and effect. The legislature in 1945 failed to make any appropriation to meet the expenses and salaries provided by said article. The existing appropriation made in the general appropriation of 1943 expired on July 1, 1945. Thereafter (September, 1945) the legislature in special session made an appropriation for the salaries of the two officers to the 1st of September, 1945, but no more. These officers, believing that they were entitled to their salaries, made application to the auditor for salary warrants for September and the first half of October. She declined to issue warrants for that period, and this proceeding was brought to determine whether or not it was her duty to do so, notwithstanding that the legislature had failed to make a biennial appropriation for their salaries covering the period in question.
The legal question presented by this situation has been before this court twice; once in the case of Windes v. Frohmiller, 38 Ariz. 557, 3 P.2d 275, and again in Crawford v. Hunt, 41 Ariz. 229, 17 P.2d 802. In the Windes case the question was raised as to whether the creation of the office and the fixing of the salary by the Constitution was not and of itself an appropriation regardless of further action by the legislature. After discussing the cases fully and citing many authorities, this court was of the unanimous opinion that such constitutional provision created a continuing appropriation which was beyond the power of the legislature to take away, and ordered the auditor to issue the warrants prayed for. In the Crawford case, the office in question was created by an act of the legislature, and the Act, like the constitutional provision, fixed the salary and duties of the officer and provided that he should be paid. The legislature later attempted to appropriate money to pay the salary, but this particular appropriation was vetoed by the governor. The questions raised by Windes v. Frohmiller, supra, were also raised in the Crawford case, and the additional one that the office, being a statutory one, might be abolished by the legislature. The court agreed with this last contention but said that the legislature, as long as the office existed, could not refuse to appropriate money for the salary and thereby deprive the officer of that which the statute creating the office had said "he shall receive."
With these two established principles before the auditor it would seem at first flush that she should not have questioned the propriety of issuing the warrants in the case at bar, but, with her usual zeal to protect the state's monies, she declined to issue the warrants and is looking to this court for further guidance. Her uncertainty for authority to issue the warrants has its origin in the action of the legislature in adopting Chap. 86, S. L. 1943. This Act had for its purpose the repeal of specific continuing and recurring appropriations. The auditor questions whether Chap. 86 has not had the effect of repealing the continuing appropriations such as were held to exist in the Crawford case. The case of Hudson v. Brooks, 62 Ariz. 505, 158 P.2d 661, we think answers the auditor's question in the negative. The implied continuing appropriation here is a special one resulting as a matter of law and obviously was not and could not be considered to be within the contemplation of the legislature when it repealed certain continuing appropriations covered by Chap. 86, supra, as we will more specifically point out.
With reference to petitioner's claim for warrants as assignee, the auditor's position substantially is that the principles laid down in Crawford v. Hunt and Windes v. Frohmiller do not apply to the assistant superintendent for the reason that his term is not definitely limited by law and that, therefore, the provisions of Sec. 17, Pt. 2, Art. 4 of the Constitution do not apply to him. The applicable portion of the constitutional provision reads as follows:
"§ 17. . . . nor shall the compensation of any public officer be increased or diminished during his term of office, . . . ."
It is apparent, of course, that the express holding in Crawford v. Hunt, supra, that the legislature may not abolish or alter a continuing appropriation already made during the term of the officer for whose salary the continuing appropriation was made because of the limitation of Sec. 17, Pt. 2, Art. 4 of the Constitution applies only to an office with a fixed term. State ex rel. Colo. River Comm. of Arizona v. Frohmiller, 46 Ariz. 413, 52 P.2d 483; Coleman v. Lee, 58 Ariz. 506, 121 P.2d 433. Nevertheless, we are of the opinion that the fundamental principles on which it was held that a continuing appropriation was made by the creation of the office and fixing of the salary in both the Windes and Crawford cases are just as applicable to offices where the term is not fixed as to those in which it is expressly limited to a definite period.
In arriving at this conclusion we make the following analysis of what we consider to be the principles involved: first, we must determine whether Daniel B. O. Smith is a public officer; second, whether there was a continuing appropriation; and, third, whether such continuing appropriation, if made, has been repealed.
As far as the first point is concerned we think that it cannot be seriously questioned that the assistant superintendent provided for by Chap. 16 of the Regular Session Laws of 1929 is a public officer. Secs. 3 and 4 of said chapter, (the Arizona Code Annotated 1939 code sections are 45-203 and 45-204), read as follows:
Therein it is expressly stated that he shall hold "office" it is also provided that he must subscribe to the "usual oath of office." His duties obviously are to assist the superintendent in performing his duties. Both the superintendent and the assistant superintendent have every qualification necessary to constitute them public officers instead of mere employees. Winsor v. Hunt, 29 Ariz. 504, 243 P. 407; State v. Frohmiller, 46 Ariz. 413, 52 P.2d 483. We think, however, it is unnecessary to go beyond the express language of the statute which says that the assistant shall hold "office" to establish that the legislature meant that he should be a public officer rather than a mere employee. That he holds an "office" and is an "officer"...
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