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Dennis v. Jordan

Supreme Court of Arizona

April 2, 1951

DENNIS
v.
JORDAN et al

Page 693

Rehearing Denied April 24, 1951.

Judgment affirmed.

Whitney, Ironside & Whitney, Phoenix, for appellant.

Fred O. Wilson, Atty. Gen., Perry M. Ling, Chief Asst. Atty. Gen., Earl Anderson and Richard C. Briney, Asst. Attys. Gen., Lynn M. Laney, Associate Counsel, and William P. Mahoney, Jr., Phoenix, of counsel, for appellees.

La Prade, Justice. Udall, C. J., and Stanford and De Concini, JJ., concur. Phelps, Justice (dissenting).

OPINION

La Prade, Justice.

Page 694

[71 Ariz. 433] This is an appeal from the judgment of the lower court sustaining the constitutionality of the Public Employees' Retirement Act, proposed by initiative petition and proclaimed by the Governor, Laws of Arizona 1949, pp. 325-344, to have been enacted at the general election November 2, 1948 and now designated as Sections 12-801 to 12-828, inclusive, Cum.Pocket Supp., A.C.A.1939.

To employees on the State payroll prior to July 1, 1949 the Act represented:

1. that a Fund would be established, Sections 3, 5, 23 and 24, to which the State would contribute an annual sum sufficient (a) to make up the difference between the cost of retirement benefits and the 5% salary deductions of employees, (b) to meet the full cost of Death, Ordinary Disability, Accidental Disability, and Accidental Death benefits, and (c) to cover administration costs, and that the first sum would be paid by the State into the Fund "in the month of July 1949".

2. that benefit payments would begin January 1, 1950, Sec. 3, at which time Retirement, Sec. 8, Death, Sec. 11, Ordinary Disability, Sec. 12, Accidental Disability, Sec. 13, and Accidental Death, Sec. 14, benefits would become payable to state employees.

Notwithstanding what was represented:

(a) Subsequent to enactment of the Act November 2, 1948, the Nineteenth Legislature, regular session, had before it the matter of an appropriation for the "state employees' retirement fund" (Governor's Budget Message, January 24, 1949). The regular session convened January 10, 1949 [71 Ariz. 434] and adjourned March 19, 1949, making no such appropriation.

(b) The board of trustees (general administration board for the retirement fund) held its first and second official meetings on July 1 and July 11, 1949, respectively. One of the members of the board presented her claim for expenses to the state auditor, which claim was rejected upon the ground that no appropriation had been made therefor. The rejection of this claim was the basis for an action instituted in the Superior Court of Maricopa County on the 10th day of August, 1949, seeking an interpretation of the law and specifically, whether the Act appropriated funds to meet the expenses of administration. Summary judgment was entered, holding among other things that the Act provided no appropriation which was available to meet expenses of the trustees and that the legislature having made no appropriation therefor, there were no funds available for the payment of such claims.

(c) During the pendency of an appeal to this court challenging this judgment, the Governor by his proclamation of February 13, 1950 called the legislature into special session, which was regularly convened on February 20, 1950. Listed as one of the items for consideration was an item entitled: "Public Officers' and Employees' Retirement". HB 38 and HB 39 of that session were introduced February 24, 1950 and respectively sought an appropriation of $ 1,190,000 as an initial contribution to the Fund by the State and an appropriation of $ 42,800 for initial administrative expenses. Neither bill was passed.

(d) On April 3, 1950 this court handed down its decision on the appeal above referred to, being Eide v. Frohmiller, 70 Ariz. 128, 216 P.2d 726, affirming the judgment of the lower court decreeing that no appropriation had been made by the provisions of the Act to pay administration expenses.

(e) In March, 1950 the present action was instituted in the Superior Court of

Page 695

Maricopa County, resulting in the judgment here under consideration and which was submitted for decision in this court on the 23rd day of January, 1951.

(f) The Twentieth Legislature having met in regular session on the 8th day of January, 1951, it was deemed advisable, in view of the public interest and monetary considerations involved, to attempt to dispose of the case prior to the adjournment of the legislature in order that it might be fully advised in the premises. (The legislature adjourned without making any appropriation to activate the Fund.) Due to the enormity of the considerations involved, the extensive briefs and the multitude of objections raised as to the constitutionality of the Act, the court found itself unable to prepare a written decision prior to the date that the legislature was scheduled to adjourn.

After its submission (January 23) every member of the court laid all other matters [71 Ariz. 435] under consideration to one side and assiduously, individually and collectively, studied the case and the disposition to be made of it. On February 28th, without written decision, the court directed the filing of the following minute entry:

"The judgment of the lower court, denying a peremptory writ of mandamus to the plaintiff (appellant), is affirmed. The petition of plaintiff was in her capacity as a state employee, and the judgment denying the writ only adjudicated her rights as an employee of the state. In the court below, and here, the constitutionality of the Act as a whole has been challenged. The court will hand down its written decision as soon as it is possible to complete the same, holding the Act constitutional in so far as it applies to employees of the state. The opinion will expressly reserve passing upon the validity of the Act in so far as it attempts to provide for participation in the fund by persons employed by the political subdivisions of the state including counties, cities, towns, school districts, and employees of the political subdivisions of the state now participating in existing retirement and pension funds.

"The reservation referred to will be made for the reason that no political subdivision of the state, or other persons that might be affected, are before the court, and their rights and obligations under the Act cannot properly be adjudicated in this proceeding."

Now, in conformity with the Constitution, art. 6, section 2, the court is filing its written decision, giving the grounds for its decision as contained in the minute entry.

Plaintiff below, an employee of the department of library and archives of the state of Arizona, whose director is the appellee Mulford Winsor, initiated this action in the Superior Court of Maricopa County against the state auditor, and Mulford Winsor, director aforesaid, seeking to secure a peremptory writ of mandamus directed to the auditor and director, commanding them to approve and cause to be paid to plaintiff the 5% theretofore taken from her wages and to cease preparing and causing to be prepared any state payrolls from which any deduction had been made from the employee's wages. Semimonthly wage payment, Section 43-1601, A.C.A.1939; auditor to issue warrants, Laws 1943, Chapter 86, Section 10-926, A.C.A.1939, Cum.Supp.

Appellees' answer contained three defenses:

(1) lack of jurisdiction over the subject matter;

(2) failure of complainant to state a claim upon which relief could be granted; and

(3) defensive admissions, denials, and allegations, the net substance of which constitutes a denial that the Act was unconstitutional and that appellant, by virtue of the provisions of the Act, had voluntarily [71 Ariz. 436] elected to and did become a member of the Fund and could not challenge the constitutionality of the Act.

The court below held (1) that the plaintiff had no legal standing to maintain the action, and (2) that the Act was valid and constitutional.

Appellant's first two assignments of error challenge the judgment in so far as it held that the plaintiff was not entitled to maintain the action and was not a proper party to question the constitutionality of the

Page 696

Act. Appellees, deeming that the public interest requires that the supreme court decide the constitutionality of the Act (and accordingly with the court's permission), withdrew their contention that the plaintiff had no legal standing to maintain the action and was not a proper party to question the constitutionality of the Act.

By the third assignment of error it is said that the Act is unconstitutional and void because the Act "was not initiated, petitioned for, submitted or referred to a vote of the people or enacted in conformity with the requirements of Article 4, part 1, Section 1, paragraphs (9), (10), (11), and Article 22, Section 14 of the Arizona Constitution and Sections 60-103, 60-107, A.C.A.1939."

Section 60-107(a), A.C.A.1939, which implements Article 4, part 1, Section 1, paragraph (11), of the Constitution, commands that the voters be advised in the official publicity pamphlet as to the full and correct title and the form in which said measure will appear on the ballot.

The basis for the assignment of error challenging the sufficiency of the title to the Act, has its origin in the following factual situation, recited chronologically:

1. On June 30, 1948 there was filed with the Secretary of State an Initiative Petition in which the full and correct title of the measure proposed under the Initiative was:

"To Establish a Public Employees' Retirement Fund to Provide Retirement, Disability, Death and Withdrawal Benefits for Officers and Employees of the State of Arizona, and of Political Subdivisions of the State of Arizona Including Counties, Cities, Towns, and School Corporations; to Provide for Participation in the Fund by Persons Employed Jointly by the State of Arizona, Its Political Subdivisions, Municipalities and Federal Agencies; to Provide for the Maintenance and Administration of the Fund; to Prescribe the Procedures Whereby Political Subdivisions may Participate in the Fund on Behalf of Their Employees and Employees of Institutions, Boards, Commissions, Officers, Bureaus or Any Other Agencies Maintained by a Political Subdivision; to Prescribe the Method for Inclusion of Certain Existing Retirement and Pension Funds; and to Provide the Method of Financing the Fund."

2. The Official Publicity Pamphlet for the November 1948 election stated:

[71 Ariz. 437] "The following is the form and number in which the question will be printed on the Official Ballot:

"Proposed by Initiative Petition

"Relating to Public Employees; Providing for Retirement Fund; for Participation in Fund by Employees and for Retirement, Disability and Death Benefits."

"To Establish a Public Employees' Retirement Fund * * *", etc., setting out the full initiated title immediately supra.

3. On the November 2, 1948 Official Ballot was this title:

"Relating to Public Employees; Providing for Retirement Fund; for Participation in Fund by Employees and for Retirement, Disability and Death Benefits."

(which title hereinafter is referred to as "ballot title"); that the true title was not printed on the Official Ballot; and that no initiative petitions filed with the Secretary of State bore the ballot title.

4. The Official Canvass shows that the General Election vote of November 2, 1948 was on an initiative measure, the title ...


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