GEORGE P. SELLERS, Petitioner,
ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent
Original proceeding in Mandamus by George P. Sellers against Ana Frohmiller, State Auditor, to compel her to draw warrant for salary. Alternative writ quashed and peremptory writ denied.
Messrs. Windes & Miller, for Petitioner.
Mr. Charles L. Strouss and Mr. J. R. McDougall, Assistant Attorney General, for Respondent.
[42 Ariz. 240] McALISTER, J.
On July 16, 1933, the petitioner, George P. Sellers, filed with the state auditor, Ana Frohmiller, a claim for $9.67 for salary as a secretary in the office of Governor B. B. Mouer for the fifteenth day of July, 1933. Being doubtful of the legality of the claim the auditor rejected it, whereupon the petitioner filed in this court a petition for an alternative writ of mandamus directing the auditor to approve the claim and draw a warrant in payment of it, or show cause why she has not done so.
The petitioner bases his claim to the writ upon the provisions of chapter 95, Session Laws of 1933, which is the general appropriation bill enacted at the regular session of the eleventh legislature for the biennium beginning July 1, 1933, and ending June 30, 1935. Section 1 of this chapter appropriates the sums set forth in the sixty-one subdivisions comprising [42 Ariz. 241] the section, each of which designates the amount set aside and appropriated to the particular department, institution or agency of the state named in that subdivision. Sections 2, 3, 4 and 5 deal with matters which do not concern this inquiry, but section 6 provides for the appointment of a person to perform the services for which the claim of petitioner is made. It reads as follows:
"Section 6. Provided that each and every sum hereby and herein appropriated for the purpose of Operation and/or Travel, excepting the respective sums appropriated for Operation and/or Travel to the University of Arizona, Arizona State School for the Deaf and Blind, Arizona State Teachers' College at Flagstaff, and Arizona State Teachers' College at Tempe, and Attorney General, shall be under the direct control and supervision of the Governor. No person, officer, agent, agency, commission, institution or department of state, except those institutions herein excepted, shall expend or contract any obligation of any character whatsoever against any sum herein appropriated for Operation and/or Travel until a proper requisition therefor has been made to the Governor, in such form as he may require and the Governor has been shown to his full satisfaction that a necessity exists for such expenditure or the contracting of such obligation, at which time, if he deems such expenditure or obligation necessary, he shall grant such requisition, and the auditor shall draw his warrant for such amount only after being properly presented with a claim therefor, duly approved by the Governor.
"Subdivision 1. For the salary of a secretary to the Governor to assist in the disbursement of appropriations for Operation and/or Travel, as in this section provided, the sum of Three Thousand Six Hundred ($3,600.00) Dollars per year for each of the twenty-second and twenty-third fiscal years, is hereby appropriated. For the purpose of providing the necessary supplies for the disbursement of appropriations for Operation and/or Travel during the twenty-second and twenty-third fiscal years, the sum [42 Ariz. 242] of Two Hundred and Fifty ($250.00) Dollars per annum is hereby appropriated."
To all of the departments, institutions and agencies of the state the general appropriation bill appropriates certain sums for operation and to many of them for travel, and this section, it will be observed, places the control of the expenditure of such appropriations, except in certain instances, under the supervision of the Governor.
The petition alleges that on July 14, 1933, the Governor, pursuant to the authority conferred upon him by this section, appointed "the petitioner as a secretary, to perform such clerical duties as he, the said Governor, might direct, to enable him, the said Governor, to perform and discharge the duties imposed upon him by the provisions of said Section 6," and that on the following day the petitioner entered upon the discharge of his duties and, in accordance with the statute requiring the payment of those employed by the state twice a month, filed with the auditor a claim for $9.67, which, at the annual salary provided therein, $3,600, was the amount due him for first half of July, namely, one day, the 15th, but notwithstanding the foregoing provision the auditor rejected his claim.
In answering the petition the respondent interposed a general demurrer and alleged further that chapter 95, Laws of 1933, is the general appropriation bill and that section 6 thereof is unconstitutional in that it violates sections 13 and 20, article 4, part 2, of the Constitution of this state, which read as follows:
"Section 13. Every Act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void ...