SHAPLEY et al.
FROHMILLER et al
Original proceeding on the petition of Nora B. Shapley and others, constituting the State Board of Beauty Culturist Examiners, against Ana Frohmiller, State Auditor, and William T. (Bill) Brooks, State Treasurer, for a writ of mandamus to command respondents to transfer by proper book entries certain funds from the credit of the general fund to credit of special fund of board in the amount of previous credit, wherein an alternative writ was issued.
Alternative writ made peremptory.
John L. Sullivan, Atty. Gen., Harry O. Juliani, Chief Asst. Atty. Gen., and John W. Rood. Asst. Atty. Gen., for petitioners.
Charles L. Strouss, of Phoenix, for respondents.
Stanford, Chief Justice. LaPrade and Morgan, JJ., concurring.
Stanford, Chief Justice.
[64 Ariz. 36] The petitioners constitute the state board of beauty culturist examiners. The respondents are the duly elected, qualified, and acting state auditor and state treasurer. The board was created by Chapter 52, Session Laws 1935, now incorporated as Article 3, Chapter 67, A.C.A.1939, being Sections 67-301 to 67-329, inclusive, as amended by Chapter 75, Session Laws 1941. The act creating the board relates to the practice of beauty culture, provides for the examination of applicants, licensing, and establishes fees therefor. It is contemplated by the legislature that the board would be self sustaining in that there was appropriated to the board ninety percent of its fees for its maintenance. This ninety percent was to be deposited with the state treasurer and by him to be maintained in a separate and permanent fund for the board. This is made to appear from Sections 26 and 27, Chapter 52, Session Laws 1935, being Sections 67-326 and 67-327. These sections read as follows:
"67-326. Disposition of fees. -- All moneys received by the board under the provisions of this act shall be paid to the secretary, who shall receipt therefor. At the end of each month he shall report to the state auditor the total amount received by him under the provisions of this act, from all sources, and shall deposit the said amount with the state treasurer, who shall place the same in a special fund to be known as 'board of beauty culturist examiners' fund.' Ninety (90) per cent of all money so paid to the state treasurer shall remain and be a separate and permanent fund for the maintenance of the board and for the enforcement of the provisions
of this act, and the remainder shall be credited to the general fund of the state."
"67-327. Compensation of members of board. -- (a) Each member of the board shall receive a salary of one hundred and thirty-five dollars ($ 135) per month and necessary travel expenses.
"(b) The board shall have authority to employ such inspectors and clerical help as may be necessary to carry out the provisions of this act, and to fix their compensation. All salaries and expenditures hereby authorized shall be paid out of the board of beauty culturist examiners' fund."
In 1943 the legislature enacted a law known as "the budget and financial administration [64 Ariz. 37] Act of 1943" and repealed Articles 1 and 2 of Chapter 10, A. C. A. 1939, relating to public finances. See Chapter 86, Session Laws 1943. By Section 7 of Article 4 this Act all balances or appropriations provided for the departments and agencies of the state existing at the end of the fiscal year (and not incumbered) were declared to be lapsed and reverted to the general fund of the state. Section 17 of Article 4 of the Act provided that all continuing or recurring appropriations heretofore made for the use of any state departments or agencies from or consisting of any specified source of revenue or percentage of the receipts and collections of specified revenue, or a percentage of, or amounts equal to a stated percentage of specified expenditures were abolished and repealed and were directed to be paid into the general fund. At the close of the fiscal year, June 30, 1945, the board had on deposit with the state treasurer the sum of $ 6,033.20 which had not been expended or incumbered. At the conclusion of the fiscal year, respondents considered the fund theretofore held for the credit of the board to be lapsed, and they caused the same to be credited to the general fund, and refused to permit the petitioners to use same.
In this court petitioners secured the issuance of an alternative writ of mandamus directed to the respondents, commanding them to transfer by proper book entries from the credit of the general fund to the credit of the special fund of the board the amount of the previous credit, or show cause why they had not done so. In response to the writ respondents filed a motion to quash upon ...