Winsor v. Hunt

• Decision Date: 10 February 1926
• Docket Number: Civil 2485
• Citation: 29 Ariz. 504,243 P. 407
• Parties: MULFORD WINSOR, Plaintiff, v. GEORGE W. P. HUNT, as Governor of the State of Arizona, Defendant
• Court: Arizona Supreme Court

243 P. 407

29 Ariz. 504

MULFORD WINSOR, Plaintiff, v. GEORGE W. P. HUNT, as Governor of the State of Arizona, Defendant

Civil No. 2485

Supreme Court of Arizona

February 10, 1926

Original proceeding for Writ of Mandamus. Writ granted.

Messrs Armstrong, Lewis & Kramer, for Plaintiff.

Mr John W. Murphy, Attorney General, and Mr. Earl Anderson Assistant Attorney General, for Defendant.

OPINION

LOCKWOOD, J.

The seventh legislature of the state of Arizona, at its regular session in the spring of 1925, passed House Bill No. 229, providing for the revision and codification of the laws of the state of Arizona, and it was duly approved by the Governor on March 16, 1925. Pursuant to the provisions thereof, the Governor appointed F. C. Struckmeyer as Code commissioner.

Section 5 of the act reads as follows:

"Section 5. The said commissioner shall receive a salary of ten thousand dollars ($10,000.00) the year, and shall have power to employ such clerical and stenographic assistance as may be necessary."

On April 16th, 1925, the Code commissioner employed Mulford Winsor, hereinafter called plaintiff, who was president of the state Senate when the act was passed, at an agreed compensation of four hundred dollars per month, to render necessary clerical assistance in and about the revision and codification of the laws under section 5 above quoted. Pursuant to said employment, plaintiff entered upon the discharge of his duties, and rendered such clerical assistance to the commissioner well and satisfactorily from April 16th to June 23d, 1925. On June 22d plaintiff made claim against the state for eight hundred dollars compensation, for two months' services as aforesaid, in two formal demands executed by him in the manner provided by law and approved by the Code commissioner, which were filed with the state auditor. The latter audited and allowed them, and drew in payment thereof two warrants, which were delivered to the Honorable George W. P. Hunt, Governor of the state of Arizona, hereinafter called defendant, for his counter-signature as required by law. Two days later defendant returned to the auditor these warrants with a letter stating that he had disapproved of the same for reasons set forth in a letter to the Code commissioner. This letter, so far as material to the decision of this case, reads as follows:

"Section 5, part 2, of article 4 of the Constitution of Arizona provides as follows: 'No member of the Legislature, during the term for which he shall have been elected, shall be appointed or elected to any civil office of profit under this state, which shall have been elected, shall be appointed or elected to any civil office of profit under this state, which shall have been created, or the emoluments of which shall have been increased, during said term.' The appropriation for the revision of the Code was made by the Seventh Legislature, of which Mr. Winsor was a Senator and president of the Senate. Consequently I hold that Mr. Winsor cannot draw any of the funds appropriated for the revision of the Code. . . . The only way my signature can be obtained on any warrant paying a salary to the president of the Senate in connection with the revision of the Code will be upon order of the Supreme Court of the state of Arizona. . . ."

On June 24th a claim for services from June 16th to June 23d was approved by the commissioner, presented to the auditor, and approved by him, and the warrant drawn therefor transmitted to the defendant, who on July 1st returned it without his counter-signature, for the same reasons that he had returned the other warrants. Thereafter, and on November 2d 1925, plaintiff filed his application as an original matter in this court, setting up, in substance, his employment, his services, the presentation to and approval by the auditor of his claims for compensation, the issuance of the warrants and their transmission to the Governor, and his refusal to countersign the same, and that:

"The counter-signature of each of the three warrants so drawn by the auditor on the treasurer of the state of Arizona in favor of the plaintiff in payment of his compensation for said clerical assistance by him rendered said Code commissioner as herein alleged are acts the performance of which the law specially enjoins on the defendant as a duty resulting from his office as Governor of the state of Arizona, which said duty the defendant has arbitrarily and unlawfully failed and refused to perform. adequate remedy in the ordinary course of the law for his wrongs and injuries herein set forth and occasioned by the failure and refusal of the defendant to countersign said warrants,"

-- and asking for a writ of mandamus directing the defendant to countersign the warrants.

Defendant appeared specially and presented a plea to the jurisdiction of the court, on the ground that:

"The judicial department of the state of Arizona is without jurisdiction to compel the Governor of said state by mandamus to do or perform any act, and specially the act which plaintiff here asks this court to compel the defendant to do."

A demurrer was also filed and an answer, which was in effect a general denial, a plea of the statute of limitations under chapter 80 of the Session Laws of 1917, an allegation that plaintiff was ineligible to the position for services in which he claimed pay as aforesaid, under the Constitution, and that plaintiff was never legally employed by the Code commissioner or anyone else to render clerical services, in that the General Appropriation Act does not appropriate funds for payments of this kind, and that no budget was ever filed with the Governor by the Code commissioner prior to July 1st, 1925, showing plaintiff's employment.

The first question presented for our consideration is whether or not this court is authorized to issue a writ of mandamus against the Governor of the state. Counsel for defendant cite article 3, of the Constitution, which reads as follows:

"The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others,"

-- and contend that this constitutional provision restrains the judicial department from interfering with the executive in the discharge of any duty imposed by law upon the latter.

Plaintiff urges, on the other hand, that section 4, article 6, of the Constitution, which reads in part as follows:

"The Supreme Court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers, . . ."

-- expressly gives to this court the right to compel all state officers, among whom the Governor is included, by mandamus to perform the duties imposed upon by them by law.

The general principle involved was discussed, and, in our opinion, the proper rule for its determination set forth by the Supreme Court of the United States in the famous case of Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60. Therein the court, speaking through Chief Justice MARSHALL, says:

"Questions, in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this court.

"But, if this be not such a question . . . what is there in the exalted station of the officer, which shall bar a citizen from asserting in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus directing the performance of a duty, not depending on executive discretion, but on particular acts of Congress and the general principles of law?

"If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his conduct if the case be such a case as would, were any other individual the party complained of, authorize the process?

"It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined. [Italics ours.] Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.

"But where he is directed by law to do a certain act affecting the absolute rights of individuals . . . in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department."

Nor do we think defendant would insist seriously that the writ of mandamus does not lie against other state officers, when the act to be performed is ministerial in its nature. His counsel seem to contend, however, that the office of the Governor is of a different and higher nature than the other state offices created by the Constitution, and for that reason not bound by the same principle.

With this doctrine we can in nowise agree. As was said by the Supreme Court of Nevada in State v. Dickerson, 33 Nev. 540, 113 P. 105:

"Under the Constitution of the United States, which is the supreme law of the land, and the Constitution of...