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Clark v. Frohmiller

Supreme Court of Arizona

March 27, 1939

JOHN P. CLARK, Petitioner,
v.
ANA FROHMILLER, as Auditor of the State of Arizona, Respondent

Original proceeding in Mandamus. Demurrer to petition sustained and alternative writ quashed.

Mr. P. H. Brooks, for Petitioner.

Mr. Joe Conway, Attorney General and Mr. Lin Orme, Jr., his Assistant, for Respondent.

OPINION

LOCKWOOD, J.

This is an original proceeding by John P. Clark, hereinafter called petitioner, against Ana Frohmiller, as auditor of the state of Arizona, hereinafter called respondent, requesting a writ of mandamus ordering her to draw her warrant upon the state treasurer for the sum of $550.53 for salary which petitioner claims is due him from the state as judge of the superior court of Navajo county. [53 Ariz. 287] The facts necessary for a decision of the case are not in dispute and may be stated as follows:

The superior court of Navajo county was of the superior courts established at statehood under article 6, section 5, of the Constitution of Arizona. By virtue of said section the first term of office of the judge of that court expired the first Monday in January, 1915, and from and after that time the terms were governed by the following language of section 5, supra:

"... Thereafter the term of office of all judges of the superior court shall be four years, from and after the first Monday in January next succeeding their election and until their successors are elected and quality."

Honorable PAUL A. SAWYER was elected judge of the superior court of Navajo county at the general election in 1934, and entered upon the discharge of the duties thereof on the first Monday in January, 1935, the term of office for which he was elected expiring the first Monday in January, 1939. Judge SAWYER died during the month of December, 1935, and petitioner herein was appointed to fill the vacancy. This appointment was made under the following provision of section 5, supra:

"If a vacancy occur in the office of judge of the superior court, the Governor shall appoint a person to fill the vacancy until the election and qualification of a judge to hold said office, which election shall be at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term."

In pursuance of such provision, petitioner was chosen at the next general election, which was held in November, 1936, to "hold office for the remainder of the unexpired term" of Judge SAWYER. At the time Judge SAWYER took office in January, 1935, up to December 2, 1936, the salary of the judge of the [53 Ariz. 288] superior court of Navajo county was fixed by law at

Page 543

$3,200 per year. On the date last named, and before petitioner filed an oath of office and entered upon the discharge of his duties as the result of his election in November, 1936, the legislature fixed the salary at $3,500 per year.

It is the contention of petitioner that on this state of facts, from and after the first Monday in January, 1937, he was entitled to be paid at the rate of $3,500 per year as fixed by the act of December 2, 1936, rather than at the rate of $3,200 per year as fixed by the law in effect when Judge SAWYER took office in January, 1935, and it is this question which is before us for consideration.

The answer is necessarily determined by the interpretation of section 17, part 2, article 4 of the Constitution of Arizona, as amended at the general election in 1930 ...


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