Millett v. Frohmiller

• Decision Date: 05 January 1948
• Docket Number: 5015
• Citation: Millett v. Frohmiller, 66 Ariz. 339, 188 P.2d 457 (Ariz. 1948)
• Parties: MILLETT v. FROHMILLER
• Court: Arizona Supreme Court

188 P.2d 457

66 Ariz. 339

MILLETT v. FROHMILLER

No. 5015

Supreme Court of Arizona

January 5, 1948

Appeal from Superior Court, Maricopa County; Walter J. Thalheimer Judge.

Judgment affirmed.

Jennings Strouss, Salmon & Trask, J. A. Riggins, Jr. and Henry S Stevens, all of Phoenix, for appellant.

John L. Sullivan, Atty. Gen., and John W. Rood, Chief Asst. Atty. Gen., for appellee.

Udall, Justice. Stanford, C. J., and LaPrade, J., concur.

OPINION

Udall, Justice.

This is an action for a declaratory judgment to determine the question as to whether any funds are available for the payment of plaintiff's claim for services rendered to the Arizona Corporation Commission (hereinafter referred to as the Commission) in the matter of a proposed rate survey to be conducted by it.

The facts necessary to a determination of the matter are as follows: Plaintiff-appellant, a certified public accountant engaged in practice in Phoenix, Maricopa, County, Arizona, on April 21, 1947, entered into a contract with the Commission to make an examination of certain public service corporations operating in Arizona. The date to be thus procured by plaintiff and his assistants was to be used by the Commission in connection with the performance of the duties imposed on it under Art. XV, Sec. 3 of the Constitution of Arizona, i. e., making classifications, rates, and charges of public utilities. Plaintiff worked one day (May 5, 1947) and then submitted a claim for $ 35 to the defendant-appellee as State Auditor for said services against: (1) the money appropriated under Chapter 11, Laws of the First Special Session, Seventeenth Legislature, hereinafter referred to as Ch. 11, (2) the money authorized to be collected under Chapter 79, Regular Session, Eighteenth Legislature, hereinafter referred to as Ch. 79, and (3) the general fund. Defendant rejected each of these claims as not properly payable out of the respective funds mentioned, whereupon this suit was brought. The lower court granted defendant's motion for summary judgment and judgment was entered for defendant dismissing plaintiff's complaint. From this judgment appeal was taken. The gist of plaintiff's assignments of error and propositions of law is embodied in our discussion of each phase of the case.

The first fund which plaintiff believes is available for the payment of his claim is that created by Ch. 11. Briefly, this Act appropriates $ 50,000 to be used by the Commission to have a survey conducted to determine the fair value of the property of the gas and electric public service corporations of the State in order to establish a proper base for rate-making purposes. It further provides that the Corporation Commission should have a survey made employing therefor the Federal Power Commission in accordance with the terms of the Federal Power Act, 16 U.S.C.A. § 791a et seq., and Sec. 4 of the law states that: "The sum of fifty thousand dollars is appropriated to the corporation commission, for the payment of the expenses of the federal power commission, including but not limited to the salaries of personnel and travel expenses, in cooperation with the corporation commission in making the property investigation authorized by this act." (Emphasis supplied.)

Plaintiff, though admittedly not connected in any way with the Federal Power Commission, contends that this fund is available to him for payment of his claim for the reason that he believes that part, and that part only, of Ch. 11 which limits the use of the fund to payment of expenses of the Federal Power Commission is unconstitutional.

His argument concerning the unconstitutionality of this limitation is based upon Section 3, Article XV of the Constitution of the State of Arizona which gives "full power" to the Commission to "prescribe * * * just and reasonable rates and charges to be made and collected, by public service corporations * * *." Plaintiff's theory is that our Constitution in giving "full power" to the Commission in this regard, also, by necessary implication, gives the Commission complete discretion over the manner and method by which this power should be exercised. Therefore, any legislative attempt to direct by whom such a survey shall be made (such as was done in Ch. 11 in confining the use of the appropriated funds to the payment of the employees of the Federal Power Commission) constitutes, according to plaintiff, an attempt by the legislature to usurp the constitutional powers of the Commission.

In regard to plaintiff's contention, namely the availability of this fund for the payment of his claim, it must be emphasized that all the court need now consider is whether, in this case, the appropriation can properly be separated from the limitation put upon it. If it cannot be so separated, then the constitutionality of Ch. 11 as a whole can in nowise affect him, and this for the reason that if not separable, the appropriation stands with its limitation, or, if unconstitutional, both the appropriation and the limitation fall. In either of these instances it would not be available to plaintiff.

The law concerning the severability of statutes is well settled.

"* * * the valid part of a statute will be sustained where the valid and invalid parts are so separate and distinct that it is clear or may be presumed that the legislature would have enacted the former without the latter, if it had known of the invalidity, or, as otherwise stated, if the valid or invalid parts are not so intimately connected as to raise the presumption that the legislature would not have enacted the one without the other, the act will be upheld so far as valid. On the other hand, the whole statute will be declared invalid where the constitutional and unconstitutional provisions are so connected and interdependent in subject matter, meaning, and purpose as to preclude the presumption that the legislature would have passed the one without the other, but, on the contrary, justify the conclusion that the legislature intended them as a whole and would not have enacted a part only." 59 C.J., Statutes, Sec. 206.

"To be capable of separate enforcement, the valid portion of an enactment must be independent of the invalid portion and must form a complete act within itself. The law enforced after separation must be reasonable in light of the act as originally drafted. The test is whether or not the legislature would have passed the statute had it been presented with the invalid features removed." 2 Sutherland, Statutory Construction, 3d Ed. Horack, Sec. 2404.

See also, 11 Am.Jur., Const.Law, Secs. 155, 157; 1 Cooley's Constitutional Limitations, 8th Ed., 362, 363, and note; Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822; Riccio v. Hoboken, 69 N.J.L. 649, 55 A. 1109, 63 L.R.A. 485; Williams v. Standard Oil Co., 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287, 60 A.L.R. 596. Even a cursory reading of Ch. 11 makes it clear that the legislature intended to there provide for a rate survey requiring the services of the Federal Power Commission. To hold that all that was intended was to provide for a rate survey to be made by any persons, group, or agency that the Commission might select would constitute gross judicial legislation. However, to support his claim of severability plaintiff calls our attention to two cases, People v. Tremaine, 252 N.Y. 27, 168 N.E. 817; and State v. Carter, 167 Okl. 32, 27 P.2d 617, 91 A.L.R. 1497. Both cases deal with the scope of limitations that can properly be included in a general appropriation bill. Neither are applicable to the Act here in question which was passed as a separate piece of legislation. The funds there appropriated are clearly wedded to the use for which they are prescribed. Any other use would be improper. Crane v. Frohmiller, 45 Ariz. 490, 45 P.2d 955; Webb v. Frohmiller, 52 Ariz. 128, 79 P.2d 510; McDougall v. Frohmiller, 61 Ariz. 395, 150 P.2d 89.

The second fund plaintiff believes is available for payment of his claim is the moneys collected under the authority of Ch. 79. This Act, in Section 1(a) thereof, provides that "To enable the corporation commission to perform its lawful duties relating to * * * rates (of public utilities) * * * the commission shall annually make an assessment against each such corporation * * *." The assessment is computed in the form of percentages of the gross operating revenue of the utilities. Sec. 2 of Ch. 79 provides for the disposition of these collected funds as follows: "All moneys received by the commission under the provisions of this Act shall be paid to the state treasurer and placed in the general fund of the state."

It is plaintiff's contention that Ch. 79 constitutes at once both a method for raising such funds and also the appropriation thereof to the Commission. In support of this contention plaintiff directs our attention to Carr v. Frohmiller, 47 Ariz. 430, 56 P.2d 644 as authority for the proposition that funds collected for a specific purpose cannot be expended for another purpose. This is in accord with Art. 9, Secs. 3 and 9 of the Constitution of the State of Arizona, and we support this as a correct statement of our law.

Plaintiff then quotes from Arizona Teachers' Retirement System v. Frohmiller, 60 Ariz. 490, 140 P.2d 615, 616, in which somewhat similar language is contained, to the effect that no more apt language for an appropriation could be chosen. That case, however, concerned a mandamus proceeding brought by the Arizona Teachers' Retirement System for salaries of the Executive Secretary and Secretary thereof. The fund attacked was an amount by appropriation "transferred from the state school fund to the Arizona teachers' retirement system for the purpose of carrying out the provisions of (the) Act." Nothing further is...