G. W. SHUTE, Petitioner,
ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent
Original proceeding in Mandamus. Alternative writ made peremptory.
Mr. Chas. Woolf, for Petitioner.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, his Assistant, for Respondent.
[53 Ariz. 484] McALISTER, J.
This is an original proceeding in mandamus by G. W. Shute against Ana Frohmiller as state auditor, to compel her to audit and allow his verified claims for salary as attorney for the Colorado River Commission for the period from March 9, 1939, to April 15, 1939.
The petition is based on the provisions of chapter 46, Session Laws of the Fourteenth Legislature of the State of Arizona, and certain action taken pursuant thereto. That act creates the Colorado River Commission consisting of three members to be appointed by the Governor, with the advice and consent of the senate, and confers upon it certain powers and duties relative to the rights of the state in the Colorado River and its tributaries in Arizona. Among these is the [53 Ariz. 485] power to represent the state in civil and legal matters relating to the river; to claim rights therein for the state, by and with the approval of the Governor, and to enforce and defend such rights in the courts; to enforce existing rights and claims of the state therein; and to make application for dam sites thereon and perfect its rights thereto. Fifty thousand dollars is appropriated by the act to carry out its purposes and section 3, reading as follows, is incorporated in it, to enable the commission to employ the help necessary to perform its duties:
"Employees. The commission shall have power, with the approval of the governor, to employ such engineers, clerks, and other employees as it may deem necessary including, notwithstanding the provisions of section 52a, Revised Code of 1928, such legal counsel as may be required to protect the rights of the state, and to fix their compensation."
It appears from the petition that Alma M. Davis, Hugo B. Farmer and Donald C. Scott, who had been shortly theretofore appointed by the Governor and confirmed by the senate as members of the commission, met on March 9, 1939, organized by selecting Governor Jones as chairman and Alma M. Davis as secretary, and that at the same meeting Alma M. Davis was authorized
as secretary to approve claims payable from the funds appropriated for the use of the commission.
On the same day, March the ninth, the commission, pursuant to the provisions of section 3 quoted above, and with the approval of the Governor, appointed the petitioner, G. W. Shute, as its legal counsel, and on the 1st day of April thereafter fixed his salary at $416.66 per month, beginning March 9, 1939. Since that date petitioner has been the duly appointed, qualified and acting attorney for the commission.
On the 3d day of April, 1939, the petitioner filed with the state auditor his verified claim for the sum [53 Ariz. 486] of $309.12, covering his salary as attorney for the commission from March 9, 1939, to March 31, 1939, and on the 10th of April, 1939, his verified claim for $208.33, salary from April 1st to April 15th. Both claims had been approved by Alma M. Davis as secretary of the commission, but the respondent then refused and still refuses to audit and allow said claims and draw and deliver to petitioner her warrants on the state treasurer.
In her return the respondent admits that she has refused at all times to audit and allow the claims of the petitioner but alleges that there is no duty imposed on her to do this, because section 3 of chapter 46 is unconstitutional and void in so far as it authorizes the commission to employ special counsel, for the reason that it is the duty of the Attorney General to furnish whatever legal assistance the commission may need.
This allegation in the return raises the only issue in the case, namely, whether that portion of chapter 46, empowering the Colorado River Commission to employ its own counsel, violates the Constitution in that it deprives the Attorney General of the power to make this appointment. The Attorney General, as counsel for respondent, frames the question at issue in this language:
"Did the framers of the constitution, by creating the attorney general as a constitutional officer -- without enumerating his duties, but ingrafting upon him all the powers and duties of the attorney general as the same was known in common law -- restrict the legislature from stripping that officer of the powers and duties of the attorney general as the same was known in common law?"
In this query counsel for the respondent assumes that because the framers of the Constitution created the office of Attorney General without enumerating the duties going with it, they thereby engrafted upon [53 Ariz. 487] that officer all the powers and duties the Attorney General had under the common law, and that the effect of this was to restrict and prohibit the legislature from depriving him of these powers and duties. Obviously, the correctness of this viewpoint must depend upon the meaning of the expression, "as may be provided by law," and "shall be as prescribed by law," which appear in the following sections of article 5 of the state Constitution:
"Section 1. The Executive Department of the State shall consist of Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General, ...