Alternative writ of mandamus quashed.
Langmade & Sullivan, Phoenix, for petitioner.
Fred O. Wilson, Atty. Gen., Perry M. Ling and Earl Anderson, Asst. Attys. Gen., for respondent.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
This is an original application for an alternative writ of mandamus against the respondent, Jewel W. Jordan, as state auditor to require her to issue a warrant against the state of Arizona in payment of the petitioner's claim.
The Nineteenth Legislature in Chapter 30, Session Laws of 1949, passed a law establishing
the Arizona Children's Colony. The Colony was to occupy a tract of land belonging to the state, to wit: Section 16, Township 6 South, Range 8 East, Gila and [72 Ariz. 319] Salt River Base and Meridian. The petitioner was then the owner of agricultural leases from the state of Arizona, covering part of the above described section upon which he had placed a well and other improvements.
In the summer of 1949, the state cancelled petitioner's leases and took possession of the land. By the provisions of Sec. 11-206, A.C.A.1939, appraisers were appointed and they appraised the improvements and damages to the petitioner at $ 10,620. Formal claim was made to the respondent for the above amount. The claim was audited and approved as being just but the respondent refused to issue a warrant for its payment.
The sole question presented by this application is whether there is a valid appropriation against which the respondent may draw a warrant.
Petitioner alleges that under the provisions of Sec. 11-1002, A.C.A.1939, which relates to the taking of state lands by state institutions, the respondent is authorized to pay the claim out of the state's general fund. The pertinent part of the above section, which is relied upon by petitioner, reads as follows: "* * * Upon the surrender of the said lands to the state, the owner of said improvements shall be paid, from the general fund of the state, the appraised value thereof, and the amount of such damages."
Section 5 of Article 9 of the Constitution of Arizona reads in part as follows: "* * * No money shall be paid out of the state treasury, except ...