Sellers v. Frohmiller
| Decision Date | 03 August 1933 |
| Docket Number | Civil 3396 |
| Citation | 42 Ariz. 239,24 P.2d 666 |
| Parties | GEORGE P. SELLERS, Petitioner, v. ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent |
| Court | Arizona Supreme Court |
Original proceeding in Mandamus by George P. Sellers against Ana Frohmiller, State Auditor, to compel her to draw warrant for salary. Alternative writ quashed and peremptory writ denied.
Messrs Windes & Miller, for Petitioner.
Mr Charles L. Strouss and Mr. J. R. McDougall, Assistant Attorney General, for Respondent.
On July 16, 1933, the petitioner, George P. Sellers, filed with the state auditor, Ana Frohmiller, a claim for $9.67 for salary as a secretary in the office of Governor B. B. Mouer for the fifteenth day of July, 1933. Being doubtful of the legality of the claim the auditor rejected it, whereupon the petitioner filed in this court a petition for an alternative writ of mandamus directing the auditor to approve the claim and draw a warrant in payment of it, or show cause why she has not done so.
The petitioner bases his claim to the writ upon the provisions of chapter 95, Session Laws of 1933, which is the general appropriation bill enacted at the regular session of the eleventh legislature for the biennium beginning July 1, 1933, and ending June 30, 1935. Section 1 of this chapter appropriates the sums set forth in the sixty-one subdivisions comprising the section, each of which designates the amount set aside and appropriated to the particular department, institution or agency of the state named in that subdivision. Sections 2, 3, 4 and 5 deal with matters which do not concern this inquiry, but section 6 provides for the appointment of a person to perform the services for which the claim of petitioner is made. It reads as follows:
To all of the departments, institutions and agencies of the state the general appropriation bill appropriates certain sums for operation and to many of them for travel, and this section, it will be observed, places the control of the expenditure of such appropriations, except in certain instances, under the supervision of the Governor.
The petition alleges that on July 14, 1933, the Governor, pursuant to the authority conferred upon him by this section, appointed "the petitioner as a secretary, to perform such clerical duties as he, the said Governor, might direct, to enable him, the said Governor, to perform and discharge the duties imposed upon him by the provisions of said Section 6," and that on the following day the petitioner entered upon the discharge of his duties and, in accordance with the statute requiring the payment of those employed by the state twice a month, filed with the auditor a claim for $9.67, which, at the annual salary provided therein, $3,600, was the amount due him for first half of July, namely, one day, the 15th, but notwithstanding the foregoing provision the auditor rejected his claim.
In answering the petition the respondent interposed a general demurrer and alleged further that chapter 95, Laws of 1933, is the general appropriation bill and that section 6 thereof is unconstitutional in that it violates sections 13 and 20, article 4, part 2, of the Constitution of this state, which read as follows:
The contention of the respondent is that section 6 contravenes both of these provisions. It violates, she says, the first section because its subject matter is not expressed in the title of chapter 95 and the second one because it is a part of the general appropriation bill and contains legislation other than that making appropriations for the support of the various departments of the state government. If this contention, whether based on the first or second section, is sound, her action in rejecting the claim is proper, otherwise not. The correctness of this position can only be determined by ascertaining what section 6 actually provides for and accomplishes and then giving it this meaning. It will be observed that after section 1 makes and sets aside, in its sixty-one subdivisions, appropriations for the various departments of the state, section 6 provides that the expenditure of that portion of each of the appropriations set apart for operation and travel shall be under the direct control and supervision of the Governor and that "no person, officer, agent, agency, commission, institution or department of state, except those institutions herein excepted, shall expend or contract any obligation of any character whatsoever against any sum herein appropriated for Operation and/or Travel until a proper requisition therefor has been made to the Governor," and it has been shown to his full satisfaction in such manner as he may require that the necessity therefor exists, in which event it becomes his duty to grant the requisition. Thereupon, the auditor shall "draw his warrant for such amount only after being properly presented with a claim therefor, duly approved by the Governor." This section, in its first and only subdivision, provides for a secretary to be appointed by the Governor solely for the purpose of assisting him in performing the new duties assigned him, that is, in disbursing the appropriations for operation and travel, and appropriates $3,600 per year as his compensation for this service.
Before this section was enacted the Governor had no duty whatever to perform relative to the matter of approving claims against the state for operation, travel or anything else, unless the auditor rejected a claim, in which instance it became his duty to pass upon it. Article 5, Constitution of Arizona; sec. 19, Rev. Code 1928; Winsor v. hunt, 29 Ariz. 504, 243 P. 407. The requirement of section 29, Revised Code of 1928, that he countersign all warrants issued by the state auditor, is purely ministerial, and, hence, enforceable by mandamus if the warrants are in proper form and duly signed by the auditor. Winsor v. Hunt supra. The duty to examine and approve claims has heretofore rested solely in the state auditor. Sections 28 and 2619, Rev. Code 1928. Moreover, it was never, prior, prior to the passage of section 6, supra, required of any person, officer or agency to whom an appropriation was made that he first procure a requisition from the Governor or from anyone else before spending or contracting the funds set apart for the use of that person, officer or agency, for operation, travel or any other purpose. Up to then, the statutes on this subject had been enacted upon the theory that the state was sufficiently protected by requiring the auditor alone to audit and approve the expenditures...
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