A. M. CRAWFORD, Petitioner,
GEORGE W. P. HUNT, Governor, ANA FROHMILLER, State Auditor, and MIT SIMMS, as State Treasurer, Respondents
Original proceeding in Mandamus. Case referred to the Superior Court of the County of Maricopa for finding of facts.
Messrs. Favour & Baker, for Petitioner.
Mr. K. Berry Peterson, Attorney General, and Mr. Charles L. Strouss, Assistant Attorney General, for Respondents.
[41 Ariz. 231] LOCKWOOD, J.
A. M. Crawford, hereinafter called plaintiff, filed an original petition in this court against George W. P. Hunt as Governor, Mit Simms as treasurer, and Ana Frohmiller as auditor of the state of Arizona, hereinafter called defendants, to compel the issuance and payment to him of state warrants in the aggregate of $7,000 which petitioner claims is due him from the state for salary as legislative examiner from July 1st, 1931, to August 31st, 1932, by virtue of the provisions of chapter 45 of the Session Laws of 1929. Defendants demurred generally and then answered setting up in substance three defenses: (a) That the amount claimed may not be paid for the reason that no appropriation from the funds of the state has been legally made for such payment; (b) that, if such appropriation does exist, plaintiff has failed to perform the duties imposed upon him by said chapter 45, supra, from June 30th, 1931, to the date of this proceeding and has thereby vacated his office; and (c) that, if any right of action for said sum ever existed, it is barred by the failure of plaintiff to bring an action to recover it within ninety days from the time it became due, as provided by section 2804, Revised Code 1928. To this answer plaintiff demurred, and the case has been submitted to us on the pleadings.
The facts, with one exception, are undisputed, and we state them as follows: In 1929 the ninth legislature of the state of Arizona adopted chapter 45, supra, which chapter was duly approved by the Governor and became law immediately after its approval, [41 Ariz. 232] since it carried the emergency clause. It reads, so far as material for the purposes of this opinion as follows:
"Section 1. The office of Legislative Examiner is created hereby. . . .
"Section 2. The term of office of the Legislative Examiner shall be six years, unless for cause he shall be sooner removed by the Legislature. . . .
"Section 3. The Legislative Examiner shall receive a salary of six thousand dollars per year, and his necessary traveling and hotel expenses, while absent from the capital city in the performance of his official duties. . . ."
"Section 6. The Legislative Examiner shall submit to the Legislature, at the beginning of each regular session, a detailed report of the condition of the several departments of state and state institutions, and of the manner in which the expenditures of money appropriated by the Legislature have been and are being expended, and he shall be at all times subject to the call of the Legislature or of any committee thereof.
"Section 7. It shall be the duty of the Legislative Examiner to submit to the Legislature, upon the convening of each regular session thereof, or, when requested so to do, upon the convening of any special session, such data as may be helpful to the Legislature in making appropriations. . . .
"Section 8. The Legislative Examiner shall be provided with suitable offices on the legislative floor of the Capitol Building, and shall have the right, within the limits of the appropriation for the maintenance of his office, to employ such assistants and stenographers, and to incur such expense in the conduct of his office as may be necessary to carry out the purposes of this act.
"Section 9. For the fiscal year 1929-1930, the sum of fifteen thousand dollars, and for the fiscal year, 1930-1931 the sum of fifteen
thousand dollars, or so much thereof as may be necessary to carry out the provisions of this act, is hereby appropriated out of any moneys in the general fund not otherwise appropriated, and the auditor is instructed to draw his [41 Ariz. 233] warrants for claims, duly approved by the Legislative Examiner, and the state treasurer is directed to pay the same.
"Section 10. All acts and parts of acts in conflict with the provisions of this act are hereby repealed."
Thereafter in accordance with the terms of the chapter plaintiff was duly appointed as legislative examiner, and on July 1st, 1929, entered upon and performed the duties imposed on him by the chapter, at least until June 30th, 1931. The tenth legislature, which met in January, 1931, in the General Appropriation Bill included an appropriation for the salaries and expenses of the office of the legislative examiner, but the same was vetoed in its entirety by the Governor, after the adjournment of the legislature. The legislative examiner was paid his salary as provided by the chapter up to July 1st, 1931, after which defendants refused to issue or pay to him any more salary warrants. It is contended by him, and denied by defendants, that he performed the duties of his office ever since that date, but at all events no action of any nature was filed by him to compel the payment of any salary until this petition for mandamus was filed September 29th, 1932.
We consider the three defenses to the action above stated in their order. It is not disputed by defendants that the office of legislative examiner exists and plaintiff was duly appointed thereto, and that, if he has continued to perform its duties, the state owes him the salary fixed by chapter 45, supra, and sued for by him, but they contend that no money may be paid out of the state treasury except when an appropriation therefor exists, ...