Wilson R. BLAND, State Post Auditor, Petitioner,
Jewel W. JORDAN, State Auditor, Respondent.
[79 Ariz. 385] Darrell R. Parker, Phoenix, for petitioner.
Robert Morrison, Atty. Gen., and W. T. Willey, Sp. Asst. Atty. Gen., for respondent.
LA PRADE, Chief, Justice.
This court at the instance of petitioner Wilson R. Bland, post auditor, issued an alternative writ of mandamus directed to respondent Jewel W. Jordan, state auditor, to accept and allow petitioner's salary claim for the last half of July, 1955, upon the basis of a salary of $8,400 per year, or show cause for not so doing. Respondent by her return to the writ admitted that she had refused the claim upon the basis requested but had offered to accept the claim upon the basis of a salary of $7,200 per year, her position being that the applicable salary for the office of post auditor is $7,200 per year for a four-year term beginning July 1, 1955.
[79 Ariz. 386] Petitioner was appointed to the office on July 15, 'at a salary of $8,400 per annum, this appointment to begin July 16, 1955, to expire July 15, 1959 (Succeeding Kenneth D. Lockwood).' Petitioner claims that the salary of post auditor was the sum of $8,400 per year as fixed by Chapter 138, Laws of 1955, which was approved by the governor and filed in the office of secretary of state on the 13th day of April, 1955. This Act contained the
usual emergency clause but failed to receive the necessary number of votes to pass as an emergency law and as a consequence became operative as an ordinary law on July 3, 1955, which was ninety days after the adjournment of the legislature. State ex rel. LaPrade v. Cox, 43 Ariz. 174, 179, 30 P.2d 825. The office of post auditor was created by Chapter 28, Laws 1950, 1st S.S., Sections 10-940, 10-947, 1952 Code Supp. By Section 10-946 it is provided that
'The term of office to which the first post auditor is appointed shall commence on the first day of July, 1950, and shall expire on the 30th day of June, 1955, and thereafter the term shall be for four (4) years.'
Section 10-947 fixed the salary and reads:
'The post auditor shall receive a salary of not to exceed $7,200.00 per annum.'
Bland asserts that the 1955 amendment fixing the salary at $8,400 became operative July 3, twelve days before his appointment took effect, and that the term to which he was appointed began on July 16, 1955, and continued to July 16 four years distant. The auditor's position as to this particular contention is that the term to which he was appointed began on July 1, the first day after the ending of the first term, and that his appointment was in fact for the unexpired portion of the term. This contention is correct, being in conformity with our holding in Clark v. Frohmiller, 53 Ariz. 286, 88 P.2d 542. She then contends that the statutory salary of $7,200 being affixed to the term which began on July 1 could not be increased on July 3 during the term, citing article 4, pt. 2, § 17 of the Arizona Constitution providing that the compensation of a public officer shall not be increased 'during his term of office'.
Considering that this salary increase law was enacted befor the beginning of the term, does the fact that the operative date of the amendment was after the term began, bring petitioner within the inhibition of the constitutional provision prohibiting an increase in compensation during his term of office? The correct answer to this question is determinative of this proceeding.
Under the decisions of this court and others having like constitutional prohibitions against salary increases during a term, it appears that the constitutional prohibition does not positively prohibit all such salary changes. In County of Yuma v. Sturges, 15 Ariz. 538, 140 P. 504, 506, it was held that the Yuma cOunty treasurer [79 Ariz. 387] was entitled to receive a salary increase during his term of office. Prior to his taking office the law provided that the salary of the county treasurer was dependent upon the assessed valuation of the property in the county. The assessed valuation at the time he took office authorized a salary of $2,200 per year. Later during his term the assessed valuation increased so as to permit a salary at the rate of $2,500 per year. Upon the happening of this contingency the treasurer demanded the increase in salary which was refused on the constitutional ground here asserted. This court held that the increase was allowable
'* * * Not by virtue of any subsequent legislative action, but solely by the automatic operation of the very law in effect at the beginning of the term, and which law definitely prescribed and fixed the compensation incident to the office, the amount thereof being graded according to the determination of an extraneous fact, to wit, the fact of the equalized assessed valuation.'
The holding and reasoning in our case of Moore v. Frohmiller,46 Ariz. 36, 46 P.2d 652, 656, is relevant to the instant problem. In that case Tax Commissioner Thad Moore sought a writ of mandamus to compel the issuance of salary warrant at the rate of $4,500 per year, which was the salary attached to the office by law at the time he was elected and took office. The tax commission was composed of three officers, one elected every two years for a six-year term. Moore was elected in 1932. O'Neil was elected in 1934. In 1933, after Moore was elected but before O'Neil was elected, the legislature passed an Act ...