DUDLEY W. WINDERS, Petitioner,
ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent
Original mandamus proceeding in the Supreme Court by Dudley W. Windes against Ana Frohmiller, as State Auditor of the State of Arizona, to compel respondent to issue warrant for salary. Peremptory writ granted.
Mr. Dudley W. Windes, in pro. per.
Mr. K. Berry Peterson, Attorney General, for Respondent.
Messrs. Chalmers, Fennemore & Nairn, Mr. J. Early Craig, Messrs. Moeur & Moeur, Messrs. Sloan, Holton, McKesson & Scott, Messrs. Struckmeyer & Jennings, Messrs. Armstrong, Kramer, Morrison & Roche, Messrs. Moore & Shimmel, Mr. Samuel White, Mr. Floyd M. Stahl, Mr. T. A. Carson, Mr. Luther P. Spalding, and Mr. L. M. Laney, Amici Curiae.
[38 Ariz. 558] FICKETT, Superior Judge.
The state legislature in 1927 increased the salary of the judges of the Supreme Court, and in 1929 increased the salaries of the judges of the superior courts, including Maricopa county, and of the members of the corporation commission. But in conformity with the state Constitution these increases could not take effect as to the occupants of these offices until after they had again presented themselves for election; the above-mentioned courts and commission being continuing bodies, the terms of the members of which are not coterminous.
Section 17, part 2, of article 4 of the Constitution of Arizona, prior to the amendment, read 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."
At the general election held the fourth day of November, 1930 (see Laws 1929, chap. 71), the people of the state of Arizona amended said section 17, part 2, of article 4 of the Constitution of Arizona, to read as follows:
[38 Ariz. 559] "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, provided, however, that when any legislative increase or decrease in the compensation of the members of any court, board, or commission, composed of two or more officers or persons, whose respective terms of office are not coterminous, has heretofore or shall hereafter become effective as to any member of such court, board, or commission, it shall be effective from such date as to each of the members thereof." (Italics ours.) which said amendment was duly proclaimed by the Governor of the state of Arizona on the first day of December, 1930, to be a part of the Constitution of Arizona.
Under this amendment, the petitioner and Judge M. T. PHELPS, as judges of the superior court of Maricopa County, Judge A. C. LOCKWOOD, of the Supreme Court, and W. D. Claypool and Loren Vaughn, of the corporation commission, presented in January, 1931, their claims to respondent, as state auditor, for back salary, and demanded that warrants for such increase salary from the first Monday in January, 1929, be paid. The respondent refused to issue warrants, but did issue certificates of indebtedness in the amounts of the respective claims, and filed with, and submitted the same to, the legislature, which refused to appropriate funds for their payment.
Petitioner, within the time allowed by law, instituted this proceeding for himself and as assignee of the other above-named claimants.
The Attorney General, who represents the state auditor, admits that the constitutional amendment hereinabove set forth specifically provides that the petitioner shall be paid the back salary which he seeks, but contends that because the legislature has [38 Ariz. 560] not made ...