Webb v. Frohmiller

• Decision Date: 23 May 1938
• Docket Number: Civil 4002
• Citation: Webb v. Frohmiller, 52 Ariz. 128, 79 P.2d 510 (Ariz. 1938)
• Parties: DEL E. WEBB, Petitioner, v. ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent
• Court: Arizona Supreme Court

79 P.2d 510

52 Ariz. 128

DEL E. WEBB, Petitioner, v. ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent

Civil No. 4002

Supreme Court of Arizona

May 23, 1938

Original proceeding in Mandamus. Petition for writ denied.

Mr Charles L. Strouss, for Petitioner.

Mr. Joe Conway, Attorney General of Arizona, and Mr. Earl Anderson Special Assistant Attorney General, for Respondent.

OPINION

LOCKWOOD, J.

Del E. Webb, hereinafter called plaintiff, filed an original petition in this court against Ana Frohmiller, as state auditor, asking for a writ of mandamus to compel her to approve a certain claim presented by him. The facts are in nowise in dispute, and may be stated as follows:

In 1933, the Eleventh Legislature, at its First Special Session adopted chapter 8, commonly known as the income tax law, and in chapter 80, section 1, of the Regular Session of 1935, the Twelfth Legislature amended chapter 8 by adding a section containing the following language:

"Section 49 (d). Appropriation. For the purpose of carrying out the provisions of the Income Tax Act of 1933, from and after the thirtieth day of June, 1935, there is hereby appropriated to the tax commission out of the general fund such amount as may be necessary for the effective administration of the act, but not to exceed four per cent (4%) of the total revenues collected hereunder during each calendar year or fraction thereof as determined by the receipts therefrom by the state treasurer. The appropriation herein made shall be exclusive of and in addition to the appropriation contained in the general appropriation act for the use and benefit of the state tax commission, and exclusive of and in addition to the appropriation contained in the general appropriation act for the use and benefit of the state tax commission in the administration of the Income Tax Act of 1933. Any other provisions of law notwithstanding any unexpended balance of the appropriation made hereunder shall not be subject to the provisions of the financial code and shall not revert to the general fund at the end of the fiscal year, provided that any unexpended balance remaining of the appropriation herein made shall revert to the general fund on the thirty-first day of December of each year."

In the session last mentioned the legislature adopted chapter 77, commonly known as the sales tax law, and chapter 78, commonly known as the luxury tax law. Chapter 77, article 3, contains the following provisions:

"Sec. 2. For the purpose of carrying out the provisions of this act, there is hereby appropriated to the tax commission out of the taxes collected hereunder an amount not to exceed four per cent of the taxes collected each month hereunder, which appropriation shall be credited by the state treasurer to a special fund to be known as the license fee and privilege tax administration fund. The necessary expenses of the administration of this act shall be paid out of the license fee and privilege tax administration fund upon claims duly itemized, verified and approved by the tax commission, which claims shall be presented and filed with the state auditor who shall draw his warrant therefor on the state treasurer, and the state treasurer shall pay the same out of the license fee and privilege tax administration fund. No expenditures shall be made by the tax commission in excess of the amount herein appropriated."

While section 2 of chapter 78, article 4, contains this language:

"For the purpose of carrying out the provisions of this act, there is hereby appropriated to the state tax commission out of the taxes collected hereunder an amount equal to four per cent of the taxes collected each month hereunder. The necessary expenses of the administration of this act shall be paid upon claims duly itemized, verified, and approved by the state tax commission, which claims shall be presented to and filed with the state auditor who shall draw his warrant therefor on the state treasurer, and the state treasurer shall pay the same out of the luxury tax administration fund. No expenditures shall be made by the state tax commission in excess of the amount herein appropriated."

In the year 1937, the Thirteenth Legislature, at its regular session, adopted chapter 56, which reads, in part, as follows:

"Section 1. Appropriation. (a) Notwithstanding the limitations imposed by section 3021, Revised Code of 1928, all moneys standing to the credit of the legislative, executive and judicial public buildings land fund are appropriated to the board of directors of state institutions, for the purpose for which said fund was created, namely, the erection of an addition to the state capitol, to be known as the department of justice building, for the housing of the supreme court, the attorney general's offices, and the several divisions of the state library, and to be expended in the manner and under the terms and conditions hereinafter expressed.

"(b) In addition to the appropriation contained in subsection (a), the sum of one hundred twenty thousand dollars is appropriated out of the general fund for the employment of labor and other necessary expenditures in connection with the erection of said addition to the state capitol, and the general fund shall be reimbursed, at the rate of not less than ten thousand dollars per month, to the amount of said appropriation, out of the governor's relief fund (section 21, chapter 77, Session Laws of 1935, Regular Session).

"Sec. 2. Conditions. (a) Said appropriations are conditioned upon the allocation, by the federal emergency administration of public works, under the terms of that certain public works project application known as application number Arizona 1040-1, or other agreement between the state of Arizona and the federal government or any agency thereof, of approximately forty-five per cent of the cost of erection of the proposed addition to the capitol building."

Section 1, subdivision (b) was amended as to amount by chapter 2 of the First Special Session of 1937, section 12, but was left the same otherwise in substance.

Pursuant to said chapter 56, a contract was entered into with the federal government, whereby it furnished the requisite percentage of the cost of the proposed building, as set forth in section 2 of chapter 56, supra, and the board of directors of state institutions advertised for bids for its erection. The advertisement called for certain alternative proposals, and when the bids were opened, it was discovered that if all the alternative proposals were accepted, there was not a sufficient appropriation under chapter 56, supra, to meet the entire cost of the building. The board, therefore, omitted many of the alternative proposals, and let a contract to plaintiff for the sum of approximately $443,000, which was within the appropriation under chapter 56, supra, and construction was commenced. The contract also provided that the alternative proposals might be added to the job at the option of the board and extras called for, all on terms specified in the contract.

The tax commission, which was charged with the administration of the three tax laws above mentioned in connection with its many other duties, had been housed from...