Tillotson v. Frohmiller

• Decision Date: 21 November 1928
• Docket Number: Civil 2722
• Citation: 34 Ariz. 394,271 P. 867
• Parties: C. C. TILLOTSON, and GEORGE W. P. HUNT, J. C. CALLAGHAN and C. M. ZANDER, Acting as the Board of Directors of State Institutions of the State of Arizona, Appellants, v. ANA FROHMILLER, Auditor of the State of Arizona, (Defendant), and J. C. CALLAGHAN, Treasurer of the State of Arizona (Intervener), Appellees
• Court: Arizona Supreme Court

271 P. 867

34 Ariz. 394

C. C. TILLOTSON, and GEORGE W. P. HUNT, J. C. CALLAGHAN and C. M. ZANDER, Acting as the Board of Directors of State Institutions of the State of Arizona, Appellants, v. ANA FROHMILLER, Auditor of the State of Arizona, (Defendant), and J. C. CALLAGHAN, Treasurer of the State of Arizona (Intervener), Appellees

Civil No. 2722

Supreme Court of Arizona

November 21, 1928

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Mr Thomas P. Walton and Mr. Herbert B. Shoemaker, for Appellants.

Messrs Mathews & Bilby, for Intervener-Appellee.

OPINION

ROSS, C. J.

The plaintiff Tillotson filed his complaint seeking a writ of mandamus directing the state auditor, Ana Frohmiller, to audit and allow a claim of his against the state for services rendered as an engineer, under the direction of the Board of Directors of State Institutions the board assuming the right to incur such indebtedness under and by virtue of an initiative measure and a resolution passed by said board, both of which are hereafter set out. Thereafter the members of the Board of Directors of State Institutions, to wit, George W. P. Hunt, Governor, J. C. Callaghan, treasurer, and C. M. Zander, citizen member, asked and were granted the privilege of joining as plaintiffs.

The state treasurer, J. C. Callaghan, intervened, and he and the auditor filed separate answers, but raised practically the same questions. These answers consisted of general demurrers and averments that the initiative measure and the resolution under which the indebtedness was incurred were void, as in conflict with the state Constitution. The general demurrer was sustained, and, plaintiffs standing upon their complaint, an order of dismissal was entered. The plaintiffs appeal, and we shall refer to the parties herein as plaintiffs and defendants.

The only question involved is as to whether the Board of Directors of State Institutions (successor to the Board of Control) had the authority to incur the indebtedness sued for, and that brings up the question of the validity or constitutionality of the initiative measure and the resolution under which the board acted in employing plaintiff Tillotson. The initiative measure in question was approved by the voters of the state at the November 3, 1914, election, and proclaimed a law by the Governor on December 14, 1914, and is published under the head of "Amendments" at page 19 in the back of the Laws of 1915, Regular, First and Second Special Sessions. As passed it reads:

"An act to promote the welfare of the people of the state of Arizona, and to provide for the development of the resources of the state, and to abolish the contract system of all state construction, and to establish a state printing plant, and to establish a state banking system, and to make appropriation therefor.

"Be it enacted by the people of the state of Arizona:

"Section 1. Whenever, in the judgment of the Board of Control it shall be for the best interest of the state to establish, maintain or operate any manufacturing establishment or institution, for the purpose of manufacturing, marketing or distributing any natural product existing, or to exist, in or upon any public lands of this state, said Board of Control is hereby authorized to erect, construct, maintenance [maintain] or operate such establishment.

"Sec. 2. The Board of Control is further authorized and empowered to construct, establish and maintain buildings, dams, reservoirs, flumes, water plants, gas plants, printing plants and all other plants necessary for the operation and development of the resources of this state.

"Sec. 3. Whenever, in the judgment of the Board of Control, it shall be for the best interest of the state, said board is hereby authorized and empowered to establish, operate, conduct and maintain a state banking system for the use and benefit of the people of the state, in conformity with the National Banking Act, and to establish, operate and maintain a state printing plant, to print school books and to do all state printing.

"Sec. 4. All work on all state buildings, dams, reservoirs, flumes, water plants, gas plants, and all other state construction, shall be done by day's pay, by the state, and the system of letting contracts by the state is hereby abolished.

"Sec. 5. There is hereby appropriated out of the general fund of the state treasury a sufficient amount to carry out and put into effect the provisions of this act. Should the general fund be impoverished, then the people may vote state bonds to carry out the provisions of this act."

On a referendum submitted by the legislature to the people, the latter, at the November, 1918, election, amended section 4 of said initiative measure to read as follows:

"All work on all state buildings, dams, reservoirs, flumes, water plants, gas plants and all other state construction may be done by contract." Appendix to Session Laws of Arizona 1919, p. 10.

We do not deem it necessary to give here the full text of the board's resolution. It was dated August 8th, 1927, and in its preamble recites that the $100,000 appropriated by the 1927 legislature "for the use of the Colorado River Commission for the purpose of making engineering surveys and for other very important purposes . . . is entirely inadequate." The body of the resolution recites that the "engineering work should be undertaken immediately," in order that data in fighting the Swing-Johnson Bill pending in Congress might be collected and made available to the opponents of such bill. We quote only that portion of the resolution directing the tax levy and setting out the purpose of its proposed use:

"Therefore, be it resolved that the State Board of Equalization be requested to include in their levy for the current year the sum of $75,000.00; and

"Be it further resolved that the same be expended for the investigation of the storage, the development of power and the diversion of water for irrigation from points at or near Glen-Canyon and Bridge-Canyon, and for the filing for rights of way for canal lines with the state and federal departments and for the determination of the irrigable lands available under the most feasible project found by the engineers."

It is averred that after, and on the same day, the resolution was passed, the State Board of Equalization levied a tax on the taxable property of the state at a rate sufficient to cover the said sum of $75,000, to be used for the purposes mentioned in the initiative measure and resolution. It is alleged the services sued for by plaintiff Tillotson were rendered the Board of Directors of State Institutions on August 12th, 1927, and "consisted of estimating the cost of a survey of the Marble Gorge dam and reservoir, dam and tunnels to the Verde river in Arizona, including skeleton map of such survey." The complaint sets out the reasons the state auditor gave for not approving and allowing claim, as follows:

"(1) That the said claim does not constitute a proper and legal claim against the state of Arizona.

"(2) For the reason that in the opinion of said auditor there has not been nor is there now any appropriation made by law to pay said claim, neither are there any funds available for the payment of said claim."

Plaintiffs contend that the initiative measure is valid; that the Board of Directors of State Institutions acted within its jurisdiction and power in ordering the State Board of Equalization to make a levy to cover the $75,000 proposed to be expended; that such board had the power to spend such money for the purposes indicated in its resolution, and to that end to employ and to pay plaintiff Tillotson for his services out of such fund.

The defendants state auditor and state treasurer contend, first, that the initiative measure is an attempt by the legislature to delegate its duties and powers to the Board of Directors of State Institutions, in violation of article 3 of the state Constitution, distributing the powers of government and prohibiting, except as otherwise provided, one department from exercising the powers of either of the others. The initiative measure is challenged on several other grounds, as that it violates section 20, part 2, article 4, of the Constitution, which provides that all appropriations, except the general appropriation bill, "shall be made by separate bills, each embracing but one subject"; also section 13 of said article, which provides that "every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title." It is said the initiative measure contains many subjects unrelated to each other, and that some of them are not expressed in the title. Then objection is made that the resolution passed by the board is an attempt to make an appropriation for a purpose rejected by the voters in 1924, when they voted down an initiative measure proposing an appropriation of $100,000 for the same object. Finally, it is said, even if the initiative measure be upheld as constitutional, the attempt of the Board of Directors of State Institutions to replenish the "impoverished" general fund by a tax levy violated the provisions of such initiative measure.

We state these various contentions, as they were grounds upon which the defendant auditor refused to approve plaintiff's claim. While a bare statement of these contentions points strongly to their invalidity, we will not discuss any of them, except the first since, in our view of the law, the initiative measure, relied upon by the plaintiff as giving authority to the Board of Directors of State Institutions to do what was undertaken, is clearly a violation of article 3 of the state Constitution,...