State ex rel. Colorado River Commission of Arizona v. Frohmiller

• Decision Date: 25 November 1935
• Docket Number: Civil 3702
• Parties: STATE OF ARIZONA ex Rel. COLORADO RIVER COMMISSION OF ARIZONA and JOHN L. SULLIVAN, as Attorney General of the State of Arizona, Petitioner, v. ANA FROHMILLER, as Auditor of the State of Arizona, Respondent
• Court: Arizona Supreme Court

52 P.2d 483

46 Ariz. 413

STATE OF ARIZONA ex Rel. COLORADO RIVER COMMISSION OF ARIZONA and JOHN L. SULLIVAN, as Attorney General of the State of Arizona, Petitioner, v. ANA FROHMILLER, as Auditor of the State of Arizona, Respondent

Civil No. 3702

Supreme Court of Arizona

November 25, 1935

Original proceeding in Mandamus. Alternative writ quashed.

Mr John L. Sullivan, Attorney General, for Petitioner.

Mr Terrence A. Carson, for Respondent.

OPINION

LOCKWOOD, C.J.

The state of Arizona, on the relation of the Colorado River Commission, hereinafter called the commission, and John L. Sullivan, as Attorney General of the state, hereinafter called the Attorney General, filed a petition in this court for a writ of mandamus directed against Ana Frohmiller, as auditor of the state, hereinafter called respondent, asking that she be ordered to approve a certain claim of James R. Moore against the state, and to draw a warrant on the state treasurer for the sum of $5,000 in payment thereof. The alternative writ was issued and the matter is before us on the petition and the return.

The questions involved are solely of law, the facts being in nowise in dispute, and we may state these facts so far as necessary for a decision of the case as follows: The commission was created by chapter 3 of the regular session of the Ninth Legislature (1929). Among its powers as set forth in said chapter are the following:

"2. To institute and prosecute, or appear and defend, in the name of, and in behalf of the state of Arizona such actions, suits or legal proceedings as may be necessary or may be deemed advisable to protect the rights and interests of citizens and property owners of the state of Arizona, or the rights of said state of Arizona, or the rights of said state in the Colorado river or its tributaries. The attorney general of the state shall be the attorney in any such actions or proceedings, and the commission with the attorney general shall have the right to employ such special attorneys as assistants to the attorney general, and other experts as it may be necessary to carry out the purposes of this commission or any of the duties imposed upon it."

By chapter 6 of the regular session of the Twelfth Legislature (1935), an appropriation for the purpose of carrying out the provisions of chapter 3, supra, was made in the following language:

"Section 2. That there be and there hereby is appropriated from any funds in the state treasury not otherwise appropriated sixty-nine thousand two hundred seventy-six dollars and fifty-one cents, or so much thereof as may be necessary, for the use of the attorney general for salaries and services, operation, travel and capital investment, in prosecuting and defending any suits brought by or against the state of Arizona in any manner relating to the Colorado river, and furnishing legal services to the state or any of its agencies in all matters pertaining to said river."

Prior to January 23, 1935, proceedings were pending in the Supreme Court of the United States which materially affected the rights of the state in the Colorado River, and on the date last mentioned at a meeting of the commission the following resolution was adopted:

"That the Attorney General's designation of Mr. J. R. Moore as Special Assistant to the Attorney General to represent Arizona's interests in the pending suit in the United States Supreme Court and to act for the Commission in all matters other than in connection with the pending negotiation with the Secretary of the Interior and the other basin states, be approved, and that Mr. Moore's compensation in such capacity, as suggested by the Attorney General, be fixed at $10,000.00 per annum, beginning January 7, 1935, payable semi-monthly, together with necessary expenses and disbursements, to continue until otherwise agreed, and subject to termination at any time by the joint action of the Attorney General and the Commission."

In pursuance thereof, the Attorney General appointed Mr. Moore, and the latter took an oath of office as Special Assistant Attorney General as of January 18, 1935, and thereafter appeared before the Supreme Court of the United States and successfully defended the interests of Arizona in the action then pending. Mr. Moore continued to perform various services on behalf of the state under this appointment until October 7, 1935, at which time the commission, after reciting the necessity of further protection of the interests of the state in the Colorado River through various legal proceedings, adopted the following resolution:

"That the Attorney General be, and he hereby is, authorized to retain James R. Moore and Charles L. Strouss as his special assistants, to represent the state, along with the Attorney General, in the prosecution of said action for an equitable apportionment of the waters of the Colorado River. That the compensation of said special assistants is hereby fixed as follows:

"James R. Moore, a retainer of $15,000.00, payable $5,000.00 forthwith and $10,000.00 upon entry of final decree in said suit or upon the termination of his employment as herein authorized by the Attorney General or other duly constituted authority of the State of Arizona; plus a yearly retainer of $12,500.00 and $25.00 per day while engaged in the performance of said duties outside of the State of Arizona, payable semi-monthly.

"Charles L. Strouss, a retainer of $6,000.00 per year, plus $25.00 per say while engaged in the performance of said duties outside of the State of Arizona, payable semi-monthly.

"Each of said assistants shall further be allowed and reimbursed for all necessary traveling and maintenance expenses and disbursements made in and about said work; provided, however, that their hotel and personal maintenance expenses shall not exceed $5.00 per day.

"That the compensation, expenses and disbursements of the Attorney General and said special assistants in connection with the suit for the allocation of the waters of the Colorado River shall be paid from the fund appropriated by Chapter 6, Regular Session of the 12th Legislature of the State of Arizona, Session Laws, 1935, and such other appropriations as the Legislature may from time to time make."

And on said date the Attorney General did employ Mr. Moore and Mr. Strouss in accordance with such resolution. Immediately thereafter Mr. Moore presented his claim to the auditor for the sum of $5,000, being the amount of his retainer as set forth in the foregoing resolution which, by its terms, was then payable, the claim having been approved by the Governor and the Attorney General. On October 17th the auditor informed the Attorney General that she declined to approve the claim for the following reasons:

"1. The statutes do not authorize expenditures for retainers of this nature.

"2. Granting this retainer constitutes an increase in salary of an officer during his term and violates the provisions of our Constitution."

Whereupon the commission and the Attorney General, claiming that the interests of the state were being seriously injured and jeopardized by the failure of the auditor to approve the claim, filed their petition herein.

The respondent answered, admitting all of the allegations of the petition, except that the interests of the state were being injured by the failure of the auditor to approve the claim, and in reply to such last allegations maintained that they were merely conclusions of law, and further alleged that Mr. Moore had been named by the commission as Assistant Attorney General; that he had acted under said appointment from January 18, 1935, up to and including the 15th day of October of that year; and that by reason of his accepting and retaining such position he was precluded from claiming the $5,000 involved in this proceeding as a retainer under the resolution of the commission above set forth. The respondent further demurred to the petition on the ground that (1) the petitioners had no beneficial interest in the subject-matter of the action and were, therefore, not entitled to maintain it, and (2) that the petition showed on its face that it did not state a cause of action.

The position of the respondent as set forth in her brief is twofold, (1) that the proceeding, if it lies at all, should have been brought by Mr. Moore instead of by the commission and the Attorney General; (2) that even assuming the petitioners were the proper persons to bring the proceeding. the petition shows on its face that the auditor was justified in refusing to approve the claim for the reason that it violated (a) section 17, part 2, article 4, of the Constitution of Arizona, (b) section 17 of article 22 of said Constitution, and (c) section 2799, Revised Code 1928. The first objection goes to the form of the action; the second goes to its substance. We think it unnecessary in this case to pass on the first objection for, in our opinion, it can and should more properly be decided on the merits rather than on a matter of procedure. We consider, therefore, the second objection. Section 17, part 2, article 4, of the Constitution reads as follows,

"The Legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, after the services shall have been rendered or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office,"

while section 17 of article 22 is in the following language:

"All State and county officers (except notaries public) and all justices of the peace and constables, whose precinct includes a city or town or part thereof, shall be paid fixed and definite salaries, and they shall receive no fees for their own use."

It is contended by respondent that...