State ex rel. Frohmiller v. Hendrix

• Citation: 124 P.2d 768,59 Ariz. 184
• Decision Date: 20 April 1942
• Docket Number: Civil 4493
• Parties: STATE OF ARIZONA ex rel. ANA FROHMILLER, State Auditor, Appellant, v. HERMAN E. HENDRIX, CLYDA S. MARKHAM, UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellees
• Court: Supreme Court of Arizona

124 P.2d 768

59 Ariz. 184

STATE OF ARIZONA ex rel. ANA FROHMILLER, State Auditor, Appellant, v. HERMAN E. HENDRIX, CLYDA S. MARKHAM, UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellees

Civil No. 4493

Supreme Court of Arizona

April 20, 1942

APPEAL from an order of the Superior Court of the County of Maricopa. John P. Clarke, Judge. Order reversed and case remanded with instructions.

Mrs Ana Frohmiller, Appellant, in propria persona.

Messrs Lewkowitz & Wein, for Appellee Markham.

OPINION

LOCKWOOD, C.J.

On January 25, 1940, the State of Arizona, on the relation of Ana Frohmiller, as state auditor, filed in the superior court of Maricopa county, a complaint against Herman E. Hendrix Clyda S. Markham, and United States Fidelity & Guaranty Company, a corporation, to recover money belonging to the State of Arizona, which it was alleged had been wrongfully misappropriated by the two defendants first named. On April 1, 1940, a judgment in favor of defendants Hendrix and United States Fidelity & Guaranty Company was duly rendered. Markham answered, and the case against her came on for trial before a jury, which ultimately reported it was unable to agree on a verdict, and it was discharged. During all these proceedings, plaintiff was represented by P. H. Brooks, a member of the state bar and the deputy state auditor. On July 31, 1941, a motion to dismiss the case without prejudice was filed, founded upon a stipulation entered into between counsel for defendant Markham and Brooks, and on August 1 an order was entered granting the motion. The next day an application for reinstatement of the case, signed by Ana Frohmiller as state auditor, was filed. Allan K. Perry, a member of the state bar, voluntarily appeared on behalf of plaintiff, but was denied the right to act as such representative, though he was permitted to argue the motion as amicus curiae. On October 10 an order was entered by the court reinstating the case, which later was set for trial with a jury.

The matter came on for trial on November 7, Phil J. Munch, a member of the state bar and deputy state auditor, appearing on behalf of plaintiff. Counsel for defendant Markham then presented a motion to dismiss on the ground that the State of Arizona was not properly represented, in that no one but the attorney general, or his assistants, was authorized to represent the plaintiff in the superior court. On November 8, the following order was entered:

"Order defendant's motion to dismiss action because not properly prosecuted before the court is granted," and the matter was brought before us on appeal therefrom.

The questions for our consideration are (a) whether, in an action of this kind, it is properly brought by the state on relation of the auditor, (b) if so, to what extent, if at all, she may appear therein in propria persona or by deputy, and (c) whether she may be represented in court by counsel other than the attorney general or one of his regularly appointed assistants.

The constitution of Arizona provides for certain elective state officers, among them being the governor, state auditor and the attorney general. Art. 5, § 1, Const. of Arizona. The powers and duties of the governor are to a great extent set forth in the Constitution. Those of the attorney general and the auditor are in no way specified therein beyond the provision of art. 5, § 9, which reads as follows:

"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."

We, therefore, must refer to the statutes in order to ascertain what powers and duties the legislature has conferred upon these officers. In so doing we should consider all the statutes affecting the question and so construe them together as to, if possible, give effect to all the provisions appearing therein. These sections are subdivision 6, section 4-302, referring to the auditor; and subdivision 2, section 4-502, and section 4-503, Arizona Code 1939, affecting the attorney general. They read as follows:

"Auditing of claims -- Other duties. -- The auditor shall: ...

"6. Direct prosecutions in the name of the state, for all official delinquencies in relation to the assessment, collection, and payment of the revenue against all persons, who, by any means, become possessed of public moneys or property and fail to pay over or deliver the same, and against all debtors to the state."

"Duties. -- The attorney-general shall: ...

"2. Appear in the Supreme Court and prosecute or defend all causes therein to which the state, or any officer thereof in his official capacity, is a party; and when required by the governor to appear for the state or any officer thereof, and prosecute or defend in any other court any cause wherein the state is a party or is interested;..."

"Legal advisor of departments. -- The attorney-general shall be the legal advisor of all departments of the state, and shall give such legal service as such departments may require. With the exception of the industrial commission, no official, board, commission, or other agency of the state, other than the attorney-general, shall employ any attorney or make any expenditure or incur any indebtedness for legal services. The attorney-general may, when the business of the state requires, employ assistants."

The present proceeding is an attempt to collect certain public moneys which it is alleged have come into the possession of defendant Markham, and which she has failed to pay over or deliver to the state. What does subdivision 6, supra, declare to be the duty of the auditor in reference to such a situation? It is to "direct prosecutions in the name of the state." What is the extent of the authority given to the auditor by the words "direct prosecutions"? We have frequently said that, in construing statutes, words used therein are to be given their common meaning, unless it clearly appears that some special or technical meaning is intended by the legislature. Webster's New International Dictionary, 2nd Ed., is accepted by this court as giving the commonly understood definitions of all words in the English language. We find therein the verb "direct" is defined as "to give an order or instruction to; to instruct authoritatively; to regulate the activities or course of." There are many other definitions given, but we think these are peculiarly applicable to the word as used in the statute. As synonyms of the words "direct," we find "command, conduct, guide."

We think the words "direct prosecution" mean it is the duty of the auditor to cause to be instituted prosecutions in the name of the state, on her relation, whenever she thinks public money has come into the hands of anyone who fails to pay it over as required by law, and to direct and guide such prosecutions until they are terminated. When the state is injured, it has a right to sue for redress, but it must sue through the instrumentality of an agent or person designated by statute or empowered by recognized principles of law to act for it. We think the auditor, considering the manifold duties of that office, is the logical person to determine whether prosecutions to recover state money should be instituted, and to cause such action to be taken on her relation, and the legislature has evidently reached the same conclusion, and stated it in subdivision 6, supra.

Counsel for defendant cite State v. Standard Oil Co., 179 Ark. 280, 16 S.W.2d 581, as authority for a different meaning for the words "direct prosecutions." On a careful reading of the case, we think, while the statutes involved are different, its rationale rather sustains our conclusion.

It has been accepted in the past without question in this state that one may appear and present or defend any action wherein he is plaintiff or defendant, without the assistance of a regularly licensed attorney. In many states, the bar act or some constitutional or statutory provision expressly so provides. We are not aware of any provision of the Arizona statutes or constitution which expressly covers this question. Section 32-349, Arizona Code 1939, reads as follows:

"Only active members may practice law. -- No person shall practice law in this state subsequent to the organization meeting of the state bar unless he shall be an active member thereof in good standing as in this act defined."

But it seems to be accepted as a general principle that one who acts only for himself in legal matters is not, in the meaning of similar statutes, practicing law. Section 21-426, Arizona Code 1939, reads, in part, as follows:

"Signing of pleadings. -- Every pleading of a party represented by an attorney shall be signed by at least one (1) attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address...."

This would seem to imply that one may appear and institute proceedings without an attorney. If this were a proceeding by the auditor in her private capacity, we think under our past practice and the statutes quoted, she would have a right to appear and not only sign pleadings but represent herself in all legal proceedings. It will be observed, however, that the action is one by the State of Arizona on her relation, and that she is acting as an agent of the real plaintiff, the state. We know of no cases in which it is held that a plaintiff or defendant may be represented in court by an agent who is not himself the plaintiff or defendant or a licensed attorney. The only case which we can find, which seems to bear upon the question, is that of New Jersey Photo Engraving Co. v. Carl Schonert & Sons, 95 N.J. Eq. 12, 122 A. 307. Therein the court sa...