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Ward v. Frohmiller

Supreme Court of Arizona

March 18, 1940

R. A. WARD, Petitioner,
ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent

Original proceeding in Mandamus. Alternative writ made permanent.

Mr. J. R. McDougall, for Petitioner.

Ana Frohmiller, Respondent, in propria persona.



R. A. Ward, hereinafter called petitioner, applied for a writ of mandamus against Ana Frohmiller, as auditor of the state of Arizona, requiring her to approve certain claims for the travel [55 Ariz. 203] expenses of himself and J. R. McDougall in attending a conference of what is known as the Council of State Governments held on October 26, 27, 28, 1939, in San Francisco, to discuss various governmental problems, including migrants and migratory labor, relief and social security problems, with the representatives of Washington, Oregon, California, New Mexico, Idaho, Nevada, Colorado, Utah and Wyoming. He also asked that she be compelled to approve certain claims of Robert C. Parnell, in attending a meeting of the Civil Service Assembly, held in San Francisco at the same time, for the purpose of discussing methods and technique in the administration of the so-called merit system installed by the State Department of Social Security and Welfare, hereinafter called the state department. All of these trips were authorized, and the claims for expenses aforesaid were approved by the proper official of the state department. The claims were presented to the state auditor, who rejected them, and advised the state department as follows:

"... My reason for rejecting these claims is that travel to such conventions, conferences, assemblies, etc., is not authorized by the statutes of this state and this office seriously doubts whether a public purpose is involved."

The claims were again presented to and rejected by the auditor, and were then presented to the governor, who, having examined them, approved them in toto, and they were again presented to the auditor, but she refused to issue warrants therefor.

The question before us involves the powers and duties of the state auditor, under circumstances such as are set forth in the foregoing statement of facts.

The pertinent statutes governing the presentation and approval of claims against the state of Atizona, and the issuance of warrants therefor are found in [55 Ariz. 204] sections 28 and 2619 Revised Code 1928, which read as follows:

"2619. Presentation, approval and payment of claims. All claims against the state for an obligation authorized, required or permitted to be incurred by any state officer or agency, and not payable out of any special fund, or in a special manner, shall be paid only in the following manner: The claimant shall present an itemized claim, sworn to by him and approved by the head official of each office of state agency under which the obligation was incurred, or by some other officer thereof, if expressly authorized to approve; then presented to the state auditor and, if approved by him, he shall draw his warrant therefor on the state treasurer, who shall pay the same when countersigned by the governor and only out of the appropriation made therefor."

"28. Auditing of claims; other duties. The auditor shall: 1. Audit, adjust and settle the amount of claims against the state payable out of funds of the state, except only such claims as may be expressly

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required by law to be audited and settled by some other officer, and investigate any claim presented. If such an investigation discloses that all or any portion of any claim is not for an actual public purpose, connected with the activities of the office, board, commission, or department where the claim originated, he shall refuse to draw a warrant, except for such amount of each claim as appears to be for an actual public purpose. He shall state his reasons for rejection to the originating office, and a warrant shall not be drawn therefor until a new claim, fully itemized, stating specifically the actual public purpose of, and the necessity for each particular item or amount of expenditure referred to in the auditor's statement of reasons, is presented to the auditor properly verified by the oath of the person making the expenditure, and again approved for audit and warrant by the officer, board, commission, or department which in the first instance audited the rejected claim. If such verified claim is not filed, or if re-filed, if it does not then appear that a public purpose is in fact involved respecting the claim thereof, the auditor shall have power to again [55 Ariz. 205] reject the claim, and report the fact of such rejection to the governor, and no warrant shall be drawn thereon, unless the governor specifically approves the claim in whole or in part."

We have had the meaning and effect of these provisions under consideration in the case of Proctor v. Hunt, 43 Ariz. 198, 29 P.2d 1058, 1060. Therein we said:

"We are of the opinion that, construing all of these sections together, as of course it is our duty to do, in order to make them all effective, if possible, that when a claim is to be made for an obligation authorized or permitted to be incurred by any state officer or agency, which is not payable in some special manner, the claimant must execute an itemized claim, sworn to by him, which must be approved by the head official of the particular office or department by which the obligation was incurred. After this is done, it must be presented to the auditor, and, if it is, on its face, for a public purpose and is properly itemized and accompanied by vouchers, and an appropriation has been made by law for that purpose, it is the mandatory duty of the auditor to approve said claim and to issue a warrant therefor; no discretion being given, if the matters recited beforehand appear in the claim as presented. Callaghan v. Boyce, 17 Ariz. 433, 153 P. 773.

"... In the present case, the various claims were approved by the Governor of Arizona, the head of the department for which the appropriations, which it is contended justified the expenditure of the money in question, were made. We think under these circumstances that unless it appeared upon their face that the claims, as approved by the Governor, were not in proper form or not for a public purpose, connected with the activities of the Governor's office, for which an appropriation had been made, it was the duty of the auditor, enforceable by mandamus, to issue a warrant therefor. If this is not true, and if the auditor must, at her peril, determine not only that the claim, on its face, was for a proper purpose and that there is an appropriation to pay it, but that the items of the claim were necessary and actually used for their [55 Ariz. 206] ostensible purpose, she must, by herself or her deputies, investigate every transaction of every department of the state government to the uttermost detail, before she dare approve a claim for the purchase of even a paper of pins. No officer could make a long-distance telephone call, however urgent, until he had first consulted with her as to its necessity and advised her of all its details, so that she might determine if it were for a public purpose. The tremendous cost of such procedure, and the manner in which it would hamper and delay the normal operations of the state government are obvious, and the appropriations made by the Legislature, from time to time, for the auditor's office, have been grossly inadequate for such a duty. Unless the Legislature explicitly so directs, we cannot conceive such to have been its intention.... We hold, therefore, that, unless it appears upon the face of the claims, approved by the Governor, and presented to the Auditor, that they were not in proper form, or not for a public purpose, no action lies against the auditor and treasurer for issuing and paying warrants for such claims, for the primary duty of auditing them is by section 2619, supra, placed upon the Governor, and he, and he only, is responsible if it appears, from evidence dehors the face of claims themselves that they were not, as a matter of fact, for a public purpose."

Upon a re-examination and reconsideration of the two sections, we see no reason to depart from the construction placed on

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them in Proctor v. Hunt, supra. We hold, therefore, that if it appears from the face of the claims in the present case that they were in proper form and that the money claimed thereunder was expended for a public purpose, and they were properly approved by the head of the state department, it was the duty of the auditor to approve the claims and issue warrants.

Were the claims for a public purpose, within the meaning of those words as used in our statute? We think the natural and logical definition of the words [55 Ariz. 207] "public purpose" as to used is synonymous with "a purpose approved and authorized by law." Was the state department, therefore, authorized by law to expend its funds for the purpose of sending representatives to San Francisco to attend conventions of the character described herein?

It is not questioned that one presenting a claim against the state must show affirmatively a statute which directly, or by reasonable implication, authorizes the incurring of the charge. And in construing the statute, we must apply the rule that the intent of the legislature governs. In some cases that body has limited very strictly the powers and duties given a state department, and has gone into minute detail as to just how the appropriation for its support must be spent. In others the duties imposed are manifold and described in very general terms, while the appropriation is for a lump sum. The construction to be given a statute of the former kind is necessarily much stricter than that to be applied to the latter. The powers given are presumably correlated with the duties, and when the latter are far-reaching and set forth in broad language, it is but reasonable to assume, in the absence of a legislative expression to the contrary, that even though no express powers are described in detail, those conferred by implication are sufficient to permit the execution of the duties in the best possible manner. Practically all the authorities uphold this rule. 59 C.J. 973, and cases cited. The language used by the great Chief Justice in the famous case of McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579, 605, though written of the federal Constitution, logically applies to statutory construction as well:

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which [55 Ariz. 208] are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

The state department was created by chapter 69 of the regular session laws of 1937. Its duties are set forth in section 7 of the chapter, and among them we find the following:

"The State Department shall... (g)... develop plans in cooperation with other public and private agencies for the prevention as well as treatment of conditions giving rise to public welfare and social security problems; to make the necessary expenditures in connection therewith;"

It is a notorious fact, of which the courts cannot avoid taking judicial notice, that particularly during the last decade the problems which may properly be included under the head of "public welfare and social security" have grown enormously. Among these problems are old age assistance, home and ork relief, outdoor, indoor and medical care for indigents, aid to dependent and crippled children and the blind. All of these are, by chapter 69, supra, placed in the hands of the state department for administration. The federal government contributes to the state department large sums for these purposes, and as a condition to such contribution requires that the latter maintain a suitable merit system. Due to the migratory habits of a considerable portion of the population of the United States, obviously it is utterly impossible for any state to deal properly with these problems without taking into consideration similar problems, and their complications, arising in other states, and endeavoring to work out a plan of action in harmony with like activities carried on by the sister states. These problems are to a great extent new, and only continued experimentation and the exchanging of ideas and information with similar officials in other jurisdictions can produce a satisfactory system of dealing with [55 Ariz. 209] them. That this was recognized by the legislature is shown by the fact that the state department was directed to "develop plans in cooperation with other public and private agencies" to handle the many problems arising and, as we have pointed out, it is necessary for a successful handling of these problems that the plans should include agencies outside the state of Arizona. To limit the method of developing these plans to correspondence by mail or conversations

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by telephone would greatly hamper such cooperation and coordination, for it is well known that half an hour's personal interview between executives can accomplish far more than months of letter writing. We think, therefore, the reasonable construction of section (g), supra, is that the "other public and private agencies" include all those, both within and without the state, that are engaged in an endeavor to solve public welfare and social security problems, and that the state department is not only authorized but directed to take such steps as may be reasonably necessary to develop plans in cooperation with these other agencies, for the better solution of these problems. If this be true, then certainly attending a conference of representatives of the eleven western states, for the specific purpose of considering such problems as "migrants and migratory labor, relief and social security" and "civil service regulations" for the various agencies engaged in this work comes within the powers which the state department is directed to exercise.

The respondent apparently relies chiefly upon the cases of Yavapai County v. O'Neill, 3 Ariz. 363, 29 P. 430, Webster v. Parks, 17 Ariz. 383, 153 P. 455, and Maricopa County v. Norris, 49 Ariz. 323, 66 P.2d 258.

In the first case, the sheriff of Yavapai county presented a claim to the supervisors of that county for his expenses in traveling outside the Territory of Arizona, [55 Ariz. 210] for the purpose of (a) executing a warrant of arrest, and (b) of summoning witnesses residing outside the territory. The court held that since a sheriff could not validly make an arrest outside the territory, it was not within his power to serve a warrant of that nature there, and his expenses in making the attempt could not be paid by the county. On the other hand, it held that subpoenaing of a witness was a duty which any messenger could perform, either within or without the territory, and that his mileage for notifying witnesses without the territory was a legitimate county charge.

If the representatives of the state department, in traveling to San Francisco, had been attempting to perform some official act which necessarily depended for its validity on its being done within the territorial jurisdiction of the officers, they could not collect the expenses of such a trip. But the acts which they performed, being those merely of consultation for the purpose of formulating a method of cooperation with outside agencies, were undoubtedly powers which could be validly exercised anywhere outside of the state of Arizona. The O'Neill case upholds the power of the state department in sending its representatives out of the state, rather than denies it.

In the Webster case the claim involved was one paid by the board of supervisors to one H. O. Tunis for expenses in attending an "Arizona Good Reads Convention " at Prescott. In that case the record did not show whether the attendance of Tunis was in an official capacity as a representative of the county, or merely as an interested private spectator, and there was nothing to indicate directly or indirectly that he was in the exercise of any official duty in attending such a convention.

In the present case the record shows clearly that the claimants were instructed by their official superior [55 Ariz. 211] to attend the conventions in question, to discuss with representatives of similar bodies from other states some of the problems in regard to which the state department was specifically directed by the legislature to develop plans in cooperation with other public agencies.

In the Webster case, if the board of supervisors had been instructed to develop plans in cooperation with other private and public agencies for good roads in Arizona, which should be a part of a nation-wide system, financed in part by the Federal government, we think there could have been no doubt that the expense of sending a representative of the board to a convention, within or without the state, would have been a legitimate, proper, and, indeed, necessary public purpose.

In the Norris case the officer was given a bench warrant to serve in Missouri on a fugitive from justice. We pointed out that, as in the O'Neill case, the warrant was void outside of the state, and that the law had provided another way of returning fugitives from justice, which was exclusive. In the ...

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