Shute v. Frohmiller

• Decision Date: 29 May 1939
• Docket Number: Civil 4118
• Citation: 90 P.2d 998,53 Ariz. 483
• Parties: G. W. SHUTE, Petitioner, v. ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent
• Court: Arizona Supreme Court

90 P.2d 998

53 Ariz. 483

G. W. SHUTE, Petitioner, v. ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent

Civil No. 4118

Supreme Court of Arizona

May 29, 1939

Original proceeding in Mandamus. Alternative writ made peremptory.

Mr Chas. Woolf, for Petitioner.

Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, his Assistant, for Respondent.

OPINION

McALISTER, J.

This is an original proceeding in mandamus by G. W. Shute against Ana Frohmiller as state auditor, to compel her to audit and allow his verified claims for salary as attorney for the Colorado River Commission for the period from March 9, 1939, to April 15, 1939.

The petition is based on the provisions of chapter 46, Session Laws of the Fourteenth Legislature of the State of Arizona and certain action taken pursuant thereto. That act creates the Colorado River Commission consisting of three members to be appointed by the Governor, with the advice and consent of the senate, and confers upon it certain powers and duties relative to the rights of the state in the Colorado River and its tributaries in Arizona. Among these is the power to represent the state in civil and legal matters relating to the river; to claim rights therein for the state, by and with the approval of the Governor, and to enforce and defend such rights in the courts; to enforce existing rights and claims of the state therein; and to make application for dam sites thereon and perfect its rights thereto. Fifty thousand dollars is appropriated by the act to carry out its purposes and section 3, reading as follows, is incorporated in it, to enable the commission to employ the help necessary to perform its duties:

"Employees. The commission shall have power, with the approval of the governor, to employ such engineers, clerks, and other employees as it may deem necessary including, notwithstanding the provisions of section 52a, Revised Code of 1928, such legal counsel as may be required to protect the rights of the state, and to fix their compensation."

It appears from the petition that Alma M. Davis, Hugo B. Farmer and Donald C. Scott, who had been shortly theretofore appointed by the Governor and confirmed by the senate as members of the commission, met on March 9, 1939, organized by selecting Governor Jones as chairman and Alma M. Davis as secretary, and that at the same meeting Alma M. Davis was authorized as secretary to approve claims payable from the funds appropriated for the use of the commission.

On the same day, March the ninth, the commission, pursuant to the provisions of section 3 quoted above, and with the approval of the Governor, appointed the petitioner, G. W. Shute, as its legal counsel, and on the 1st day of April thereafter fixed his salary at $416.66 per month, beginning March 9, 1939. Since that date petitioner has been the duly appointed, qualified and acting attorney for the commission.

On the 3d day of April, 1939, the petitioner filed with the state auditor his verified claim for the sum of $309.12, covering his salary as attorney for the commission from March 9, 1939, to March 31, 1939, and on the 10th of April, 1939, his verified claim for $208.33, salary from April 1st to April 15th. Both claims had been approved by Alma M. Davis as secretary of the commission, but the respondent then refused and still refuses to audit and allow said claims and draw and deliver to petitioner her warrants on the state treasurer.

In her return the respondent admits that she has refused at all times to audit and allow the claims of the petitioner but alleges that there is no duty imposed on her to do this, because section 3 of chapter 46 is unconstitutional and void in so far as it authorizes the commission to employ special counsel, for the reason that it is the duty of the Attorney General to furnish whatever legal assistance the commission may need.

This allegation in the return raises the only issue in the case, namely, whether that portion of chapter 46, empowering the Colorado River Commission to employ its own counsel, violates the Constitution in that it deprives the Attorney General of the power to make this appointment. The Attorney General, as counsel for respondent, frames the question at issue in this language:

"Did the framers of the constitution, by creating the attorney general as a constitutional officer -- without enumerating his duties, but ingrafting upon him all the powers and duties of the attorney general as the same was known in common law -- restrict the legislature from stripping that officer of the powers and duties of the attorney general as the same was known in common law?"

In this query counsel for the respondent assumes that because the framers of the Constitution created the office of Attorney General without enumerating the duties going with it, they thereby engrafted upon that officer all the powers and duties the Attorney General had under the common law, and that the effect of this was to restrict and prohibit the legislature from depriving him of these powers and duties. Obviously, the correctness of this viewpoint must depend upon the meaning of the expression, "as may be provided by law," and "shall be as prescribed by law," which appear in the following sections of article 5 of the state Constitution:

"Section 1. The Executive Department of the State shall consist of Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General, and Superintendent of Public Instruction.

"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. The powers and duties of Secretary of State, State Treasurer, State Auditor, Attorney-General, and Superintendent of Public Instruction shall be as prescribed by law."

If the Constitution had created the office of Attorney General without referring to its powers and duties, it might be true under the authorities that the term "attorney general," had been used in its common-law acceptation, since Arizona is a state in which the common law prevails. A statement to this effect appears in State v. Huston, 21 Okl. 782, 97 P. 982, 992, wherein the court in a rather exhaustive opinion on rehearing said:

"The correct rule appears to be that, where the office of Attorney General is created in states where the common law prevails, without any reference to the duties of such office, the word is used with its accepted meaning under the common law, and carries with it such duties and powers as were usually incident to the office of Attorney General in England under the common law, when not locally inapplicable."

But when the Constitution provides in the same article in which it creates the office of Attorney General that that officer "shall perform such duties as are prescribed by this Constitution and as may be provided by law" and that his powers and duties "shall be as prescribed by law," it cannot be said that the Constitution is silent as to his duties and powers. It is true that it does not itself enumerate them but in stating that they shall be "as prescribed by law" it refers to them and clearly makes it the duty of the legislature to say what they shall be. The expressions, "as provided by law," and "as prescribed by law," are, as we see it, susceptible of no other construction. The word "law" in both expressions means statute. Fountain v. State, 149 Ga. 519, 101 S.E. 294; Exline v. Smith, 5 Cal. 112; Lawson v. Kanawha County Court, 80 W.Va. 612, 92 S.E. 786; Winters v. Hughes, 3 Utah 443, 24 P. 759; In re Campbell, 138 Mich. 597, 101 N.W. 826; People v. Santa Clard Lumber Co., 55 Misc. 507, 106 N.Y.S. 624. From this it follows necessarily, as most courts hold, that under Constitutions containing provisions similar to those in Arizona, the Attorney General is not a common-law officer, one upon whom "the duties and powers of the attorney general as the same was known in common law" have been engrafted but is one whose powers and duties may be ascertained only by resort to the statutes. In Wisconsin the office of Attorney General is created by the Constitution (art. 6, § 3) which provides that its powers and duties are such as "shall be prescribed by law," and in State v. Snyder Industrial Com., 172 Wis. 415, 197 N.W. 579, 580, the court said:

"In this state the Attorney General has no common-law powers or duties. His duties spring from the statute,..."

In Washington the Constitution, article 3, section 21, provides that

"The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law."

In State v. Seattle Gas & Elec. Co., 28 Wash. 488, 68 P. 946, 949, 70 P. 114, the court said:

"In the exercise of power the officer is controlled by the law theretofore declared. The attorney general of the state, although bearing the same title as the attorney general of England, is not a common-law officer. There is nothing in a mere name. Because the particular office filled by the relator is called the office of 'attorney general,' it does not follow therefrom that he has the same powers as the attorney general of England under the the common law.... The constitution and statutes of this state define his power. To the constitution, therefore, and the laws enacted in pursuance thereof, we must look for these powers, and not to the common law."

In Oklahoma the Constitution says that the Attorney General "shall perform such duties as may be designated in this Constitution or prescribed by law," Okl. Stats. Ann., Const., art. 6. § 1, and in State v Huston, s...