GEORGE T. CALDWELL, MARY E. CALDWELL, H. V. SMITH and MARGARET C. SMITH, Appellants,
BOARD OF REGENTS OF THE UNIVERSITY OF ARIZONA, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Gordon Farley, Judge. Judgment reversed.
Messrs. Houston & Dodd, for Appellants.
Mr. Joe Conway, Attorney General, and Mr. Edward P. Cline, Assistant Attorney General, for Appellee.
[54 Ariz. 405] LOCKWOOD, J.
This is an action by George T. Caldwell and Mary E. Caldwell, his wife, H. V. Smith and Margaret C. Smith, his wife, hereinafter called plaintiffs, against the Board of Regents of the University of Arizona, hereinafter called defendant, asking for a declaratory judgment that a certain clause in section 2, chapter 88, of the regular session laws of 1939, being the general appropriation bill, is null and void, and that the defendant be enjoined from discharging any of the above plaintiffs from their services as employees of the University of Arizona by reason of the aforesaid clause of chapter 88, supra.
A general demurrer was filed to the complaint, which was sustained, and plaintiffs declining to amend, judgment was rendered in favor of defendant, whereupon this appeal was taken.
The complaint alleges the marital relationship of plaintiffs and that all of them had for many years previously been continuously employed by defendant at the University of Arizona; that the fourteenth legislature of the state of Arizona, at its regular session in 1939, adopted chapter 88, which was the general appropriation bill, for the ensuing biennium, and that section 2 of said act contained the following proviso: "In no case, shall both the husband and wife be included, at the same time, on the pay rolls mentioned [54 Ariz. 406] in this act." That onor about the 15th day of April, 1939, the defendant informed plaintiffs that as soon as such law should become effective, which by its terms was the 1st day of July, 1939, and solely by reason thereof and because it feared to incur the penalties provided by law if it violated the terms of said proviso of chapter
88, supra, it would no longer employ both husband and wife in any case, and requested the plaintiffs to determine among themselves which spouse should lose employment. It was further alleged that plaintiffs were informed and believed that but for the passage of said chapter 88, supra, and the fear defendant had that a penalty would be visited upon it in case of any violation thereof, it would gladly continue them in their existing employment, and that the only reason which actuated it in its request that the plaintiffs choose which of each couple should retire from employment by defendant was said proviso of chapter 88, supra. The complaint then alleged that the proviso was unconstitutional and void for many reasons, and particularly because it violated article IV, section 20, of the Constitution of Arizona, which reads, in part, as follows:
"The general appropriation bill shall embrace nothing but appropriations for the different departments of the State, for State institutions, for public schools, and for interest on the public debt...."
The sole issue before us for our consideration is whether that portion of section 2 above quoted is unconstitutional, as being a violation of section 20, article IV, supra. We have had the question of the effect of this section of the Constitution directly under consideration in at least two cases. The first is Sellers v. Frohmiller, 42 Ariz. 239, 24 P.2d 666, 668. Section 1 of the general appropriation bill of 1933, chapter 95, appropriated certain sums for the support of [54 Ariz. 407] specified departments and agencies of the state, each one having a separate subdivision of the section devoted to its appropriation. Sections 2, 3, 4 and 5 of the bill dealt with matters not material to the case, while section 6 read as follows:
"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 Hundre ($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 of Two Hundred and Fifty ($250.00) Dollars per annum is hereby appropriated."
[54 Ariz. 408] Sellers had been appointed by the Governor as secretary under subdivision 1, and filed his claim for salary under such subdivision. The auditor, being doubtful of the legality of the claim, rejected ...