APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and cause remanded with directions.
Mr. Rouland W. Hill and Mr. Howard A. Twitty, for Appellant.
Mr. Richard F. Harless, County Attorney, and Mr. Leslie C. Hardy, Deputy County Attorney, for Appellee.
[56 Ariz. 477] ROSS, J.
The Industrial Commission, through attorneys of its own choosing, brought this action against School District No. 48 of Maricopa County for premiums on workmen's compensation insurance due the state compensation fund. The defendant moved the court to dismiss the action upon the ground that only the attorney general of the state, or the county attorneys acting under his direction, can bring and prosecute such an action. The court granted the defendant's motion and the plaintiff has appealed from the judgment.
The question is one of statutory construction. Section 56-969, which is part of the workmen's compensation law (sections 56-901 to 56-977, Arizona Code, 1939), is relied upon by the defendant as governing the situation. It reads:
"56-969. Duty of attorney-general and county attorneys. -- Upon the request of the commission the attorney-general, or, under his direction, any county attorney of any county, shall institute and prosecute the necessary actions or proceedings for the enforcement of any of the provisions hereof or for the recovery of any money due the state compensation fund or accident benefit fund, or any penalty provided for, arising within the county in which he was elected, and shall prosecute or defend in like manner all actions or proceedings brought by or against the commission, or the members thereof in their official capacity. The [56 Ariz. 478] commission may compromise any action brought under this article." (Italics ours.)
The authority conferred upon the attorney general by this statute was given to him in the original act providing for workmen's compensation, passed as chapter 83, Laws of 1925, and was an extension of his powers and duties as theretofore provided in section 4-502. By chapter 30, Laws of 1931, there was added to section 4-502, section 4-503, which conferred on the attorney general additional powers and duties and, at the same time, gave the Industrial Commission power to employ its own attorneys. Such section reads:
"4-503. Legal advisor of departments. -- The attorney-general shall be the legal advisor of all departments of the state, and shall give such legal service as such departments may require. With the exception of the industrial commission, no official, board, commission, or other agency of the state, other than the attorney-general, shall employ any attorney or make any expenditure or incur any indebtedness for legal services. The attorney-general may, when the business of the state requires, employ assistants." (Italics ours.)
Prior to the passage of this last act, the legal advisor of the plaintiff was the attorney general and his assistants. Since its passage, the Industrial Commission has appointed its own legal advisors, who have also represented it in any and all of its litigation.
The attorney general of Arizona is a constitutional officer and his powers and duties are "prescribed by law." Shute v. Frohmiller, 53 Ariz. 483, 90 P.2d 998, 1001.
Taking the above statutes together, it is contended by defendant that they confer exclusive power upon the attorney general and the county attorneys of the state acting under his direction to institute and prosecute actions for the Industrial Commission, while [56 Ariz. 479] plaintiff maintains it is expressly, or at least impliedly, given the power to employ its own attorney and pay him for his services.
The compensation law empowers the Industrial Commission to sue and be sued in its own name in all actions or proceedings arising out of or relating to the state compensation fund. Sec. 56-904. In section 56-920 it provides for the state compensation fund, which is made up of premiums and penalties paid thereon by the employers of the state for their own protection against liability to employees. The state is without liability beyond the payment of ...