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Board of Regents of University and State Colleges v. Frohmiller

Supreme Court of Arizona

August 1, 1949


Page 834

Original mandamus proceeding by the Board of Regents of the University and State Colleges of Arizona against Ana Frohmiller, as State Auditor of the State of Arizona.

Peremptory writ issued.

Claude H. Brown and John D. Lyons, Jr., of Tucson, Arizona, for petitioner.

Fred O. Wilson, Attorney General and Perry M. Ling, Chief Assistant Attorney General, for respondent.

La Prade, Chief Justice. Udall, J., and Kelly, Superior Court Judge, concur. Justice Evo Deconcini having disqualified himself, Superior Court Judge Henry C. Kelly of Yuma County, was called to sit in his stead. Stanford, J., not participating due to illness. Phelps, Justice (dissenting).


La Prade, Chief Justice.

Page 835

[69 Ariz. 53] Upon petition of the Board of Regents of the University and State Colleges of Arizona, an alternative writ of mandamus was issued by this court directed to Ana Frohmiller as State auditor, commanding her to issue warrants in payment of seventeen claims which petitioner had caused to be filed with respondent. Thirteen of the claims were against funds of the University, and four were against funds of the Arizona State College at Tempe. Claim No. 1 was for the cost of advertising for bids for construction of dormitories authorized by Chapter 65, Arizona Session Laws of 1945, which bids were rejected. Claims Nos. 2 and 3 were for bronze tablets permanently affixed to dormitories stating the name of the building, date of construction, members of the board, the architect, etc. Claims 4 to 13, inclusive, were for expenses incurred in the inauguration of a new president at the university; specifically, they were for rental of caps and gowns (bachelor's master's, doctor's) for delegates, luncheon and reception, pictures of the inauguration and the new president, programs, direction signs for guidance of visitors, announcements, invitations, information folders, and public address system. The four claims against the funds of the Arizona State [69 Ariz. 54] College at Tempe were in payment of chinaware, crystal, silverware, dining room suite, china cabinet, and dining room rug, to be used in connection with the Home Economics Department of the College, where students are given practice instruction in home management. All of the claims were presented and rejected twice. After the second rejection they were all presented to the governor, who rejected the first claim against the university funds (to pay for advertising for bids for construction); approved the second and third claims against the University funds (for bronze tablets to be affixed to buildings); rejected all the other claims (inauguration expenses against the University funds); and approved all the claims against the State College funds.

In response to the writ respondent moved to dismiss the petition for the writ on the ground (1) that the facts stated in the petition showed no grounds for relief, and (2) that the court lacked jurisdiction over the subject matter. In discussing the motion respondent contended that (a) the board of regents is not a party beneficially interested and therefore may not prosecute this action; (b) the board of regents does not show a clear legal right to the relief demanded; and (c) the real parties in interest (creditors) have a plain, speedy, and adequate remedy at law.

The contention that the board of regents is not a party so beneficially interested as to be able to maintain this action is without merit. In Barry v. Phoenix Union High School, 1948, 67 Ariz. 384, 197 P.2d 533, 535, we held that a high school district could prosecute mandamus proceeding against a county school superintendent to compel the issuance of a warrant upon the county treasurer against the school district funds for payment of school equipment, and that the school district was a "party beneficially interested" within the meaning of section 28-201, A.C.A.1939, reading in part "The writ of mandamus may be issued by the supreme or superior court on the verified complaint of the party beneficially interested, * * *." In this case we pointed out that the board of education of a school district was "vitally concerned in seeing that its vouchers were honored by respondent in order that its financial integrity might be maintained and its manifold duties discharged." The foregoing holding and the reasons therefor are especially applicable to the board of regents in its management of the University and the two State Colleges. The importance of its business integrity and credit is sufficient

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in and of itself to make it a "party beneficially interested." That the remedy was available to the creditors does not preclude its use by the petitioner. Barry v. Phoenix Union High School, supra.

We are not unmindful of the general rule that mandamus lies only to compel an officer to perform a duty concerning [69 Ariz. 55] which he has no discretion, and which he has refused to perform. Where there are no disclosures or controverted facts calling for the exercise of discretion, discretion ceases to exist as an element of the action and then the only question is the application of the law, which the court may always give and direct. The board should and must have access to the extraordinary remedy of mandamus when it is necessary to secure its aid in carrying out duties, in which attempt it is being thwarted because some official refuses to perform a corresponding duty specifically imposed by law. Industrial Commission v. Arizona State Highway Commission, 40 Ariz. 163, 170, 10 P.2d 1046.

The issuing of the warrants was not discretionary with the auditor. If all the necessary fact predicates existed for the issuance of the warrants, including a "public purpose," then the warrants must issue as a matter of right. In Proctor v. Hunt, 43 Ariz. 198, 29 P.2d 1058, 1060, we stated that if a claim 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." (Emphasis supplied.) It was the auditor's right to determine whether the expenditures presented by the claims were for a public purpose. In making this determination she exercised her judgment. But in so doing she exercised no discretion in the sense in which that word is used when coercive action by mandamus is resisted. She had no discretion to exercise in determining what were the facts, because the facts were not in dispute. If the facts showed a legal right to the warrants, discretion on the part of the auditor ceased to exist and the duty was enjoined. To successfully resist the writ, her determination must have been correct. If she was honestly of the opinion that the expenditures represented by the claims were for an illegal purpose she rightfully refused to issue the warrants and in so doing is not subject to criticism for being cautious. On mandamus the court determines the question of public purpose. If in accord with the auditor's views it sustains her; if adverse she is coerced. State ex rel. Village of Chisholm v. Trask, 155 Minn. 213, 193 N.W. 121, citing cases; Ferris (1926) Extraordinary Legal Remedies, section 210; Cates v. Knapp, 104 Kan. 184, 178 P. 447; City of Burlington ex rel. Board of School Com'rs v. Mayor of City of Burlington, 98 Vt. 388, 127 A. 892, 893, 899; State of Arizona v. Angle, 56 Ariz. 46, 53, 104 P.2d 172; State ex rel. LaPrade v. Cox, 43 Ariz. 174, 30 P.2d 825; Campbell et al. v. Flying V Cattle Co., 25 Ariz. 577, 220 P. 417; Arizona Corp. Commission v. Heralds of Liberty, 17 Ariz. 462, 154 P. 202.

[69 Ariz. 56] The case of State ex rel. Griffith, Atty. Gen. v. Board of Commissioners of Linn County et al., 113 Kan. 203, 213 P. 1062, 1063, involved the question of the duty of a county attorney to approve a bridge contract under the Kansas Statute, Laws 1917, c. 80, § 18, which provided: "That it is hereby made the duty of the county attorney to personally examine as to form, the advertisement, proposal, contract, plans, specifications, bond and the minutes of the board's meeting for each bridge or culvert proposed to be built or repaired by contract, to determine whether the contract has been awarded in strict compliance with this act; and no contract shall be legal and binding on the county until said contract is signed by the chairman of the board of county commissioners, by order of said board at a legal meeting thereof, and approved by the county attorney by his signature indorsed thereon."

The county attorney sought to avoid the approval of the contract upon the ground

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that, in his opinion, the bridge laws had not been complied with. The Supreme Court of Kansas held:

"The occupant of the office of county attorney at the time the contracts were executed did not believe that the bridge laws had been complied with, and made an indorsement upon each to that effect. The defendants urge that it was incumbent upon the officer to act upon his own judgment, and that his action cannot be controlled by mandamus, and that in any event the present county attorney has no duty to perform in the matter. The obvious intention of the statute is that the county attorney shall pass upon the legality of the proceedings involved, and not upon any question of business expediency. Where, as here, the problem is one of applying the law to established facts, an officer who must in the first instance pass upon the question may be required to take another course where the court reaches a different conclusion upon the legal issue. For illustration, mandamus will lie to require the auditor of state to allow a claim in spite of his prior disapproval, where it was based upon what is found to be a mistaken view of the law. (Emphasis supplied.)

"'Where they (the defendants in mandamus) seek to justify nonaction on their part solely by a reason which is founded upon a doubtful conception of their legal obligations -- where the controversy grows out of a dispute over a pure question of law, an authoritative answer to which will necessarily end the matter -- the practice in this state is to permit the issue to be determined in mandamus. * * *' Eberhardt Construction Co. v. Board of Comr's of Sedgwick County, 100 Kan. 394, 396, 164 P. 281, 282."

The doctrine of this Kansas case was upheld in Giles, State Comptroller v. City of Houston, et al., Tex.Civ.App.1933, 59 S.W.2d 208. Also see Johnson et al. v. Arnold, Mayor, 176 Ga. 910, 169 S.E. 505.

[69 Ariz. 57] In State ex rel. Independent Asphalt Pav. Co. v. Gill, 87 Wash. 201, 151 P. 498, 499, the mayor of the city of Seattle refused to approve a bond given to the city to secure the faithful performance of a local street improvement contract upon the sole ground that "no legal or sufficient ordinance has been passed by the city of Seattle, as required under the charter and the laws of the state of Washington, to constitute a valid proceeding authorizing said improvement." The Supreme Court of the state of Washington held: "It is insisted that the courts should not control the discretion of the mayor touching the matter of approval of bonds of this nature. Counsel seem to assume that to sustain this judgment would be to interfere with the mayor's discretion. We do not think such is the case, in view of appellant's admissions as to the sufficiency of the bond here involved, and his refusal to approve it solely because of the claimed invalidity of this ordinance. There is no question of discretion here involved, but rather a pure question of law, arising upon conceded facts. Mandamus is an appropriate remedy to compel an inferior officer to perform a plain ministerial duty. Under the conceded facts appellant's duty became simply ministerial. * * *" (Emphasis Supplied.)

In our own case of Hutchins v. Frohmiller, 55 Ariz. 522, 103 P.2d 956, 959, the necessary steps were delineated that must be followed before the coercive writ will issue against the auditor. It was pointed out that among the preliminary steps it must be made to appear that both the governor and the auditor have had an opportunity to exercise their independent judgment on any claims presented, and that "when thus presented, rejected by both the auditor and the governor, a proceeding of this nature (mandamus) would properly raise the issue of whether, as a matter of fact and law, they were for a public purpose and authorized by law." And in Maricopa County Municipal Water Conservation Dist. No. 1 v. LaPrade, 45 Ariz. 61, 40 P.2d 94, 97, it was said: "* * * And if it appear in the proceeding that there is only one legal way he can act on an admitted state of facts, it would seem that he no longer has any discretion, that his duty, although discretionary if the facts are in dispute, becomes ministerial only, and that logically there is no reason why mandamus should not lie to compel him

Page 838

not only to act, but to act in the only manner which the law permits."

It would thus seem that the practice in this state is to permit the issue of "public purpose" to be ...

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