L. A. JOHNSON, as State Dairy Commissioner of the State of Arizona, Petitioner,
ANA FROHMILLER, as State Auditor of the State of Arizona, Respondent
Original proceeding in Mandamus. Alternative writ made peremptory.
Mr. Richard O. Johnson, for Petitioner.
Mrs. Ana Frohmiller, Respondent, in propria persona.
Messrs. Snell & Strouss and Mr. Mark Wilmer, Amici Curiae.
[57 Ariz. 508] McALISTER, J.
An alternative writ of mandamus was issued by this court upon the petition of L. A. Johnson, commanding the state auditor to issue him a warrant on the treasurer of the State of Arizona in payment of a claim for certain expenses incurred by him in the discharge of his duties as state dairy commissioner, or show cause why she has not done so.
The facts upon which the writ was asked were, according to the allegations of the petition, these: The petitioner was the state dairy commissioner and had been since some time prior to June 16, 1941. On June 19th he filed with the state auditor for approval and payment a claim for $11 for traveling expenses incurred by him in the discharge of his official duties, the claim being verified and approved by him as head of the department of the state dairy commission. [57 Ariz. 509] There were at the time and still are sufficient funds to the credit of that department appropriated by the legislature to pay the claim but the auditor rejected it, giving her reasons therefor. Whereupon the claim, fully itemized, verified and approved by petitioner was presented to the auditor the second time for approval and was again rejected by that officer who reported the fact of her rejection to the governor. Thereafter the petitioner presented the claim to the governor for approval and he also rejected it upon the same ground the auditor had, namely, that chapter 105, Session Laws of 1941, repealed section 50-902, Arizona Code of 1939, the one creating the office of state dairy commissioner, and thereby divested petitioner of his powers, duties and privileges as such officer from and after the effective date of that act. Such refusal was, however, the petition alleges, unjustified for two reasons, first, chapter 105 did not repeal section 50-902 and, second, if it did, section 1-107, Id., is applicable, and under it the petitioner continues to discharge
the functions of the state dairy commissioner.
In response to the order to show cause the auditor filed a general demurrer to the petition and to support it relies upon the proposition, first, that the statute creating the office of state dairy commissioner was repealed by chapter 105, Session Laws of 1941, and, second, that the provisions of section 1-107, supra, do not apply, because the duties of that office were transferred to another department.
The first question presented, therefore, is whether the office of state dairy commissioner was repealed by chapter 105, which went into effect on June 16, 1941. This office was first created in 1918 by the enactment of chapter 8 of the First Special Session of the Third Legislature and, with some amendments by the Fourth Legislature, chapter 123 was carried into the Revised Code of 1928 as chapter 17. In 1931 the Tenth Legislature, [57 Ariz. 510] chapter 82, repealed this chapter and adopted a code relating to the dairy industry which appears in the Arizona Code of 1939 as article 9 of chapter 50. The act created the office of state dairy commissioner and enacted in connection therewith over fifty sections for the full and complete regulation of the dairy industry. It placed upon the dairy commissioner the duty of enforcing its provisions and if that office has been abolished the remainder of article 9 of chapter 50, entitled, "Dairy and Dairy Products" is without any effect or force whatever, unless the contention of respondent that the duties of the dairy commissioner were transferred to another department be true.
However, notwithstanding the serious effect the repeal of the section creating the office of dairy commissioner has on the provisions regulating the dairy industry, it seems clear from a reading of chapter 105, Session Laws of 1941, that the legislature not only abolished that office but that it intended to do so. Its title is:
"Relating to public health; creating the state department of health and defining its powers and duties; amending section 68-405; and repealing sections 68-101, 68-102, 68-103, 68-104, 68-105, 68-106 and 50-902, ...