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Giss v. Jordan

Supreme Court of Arizona

April 6, 1957

Harold C. GISS, as a Member of the Senate of the Twenty-Third Legislature of the State of Arizona, and J. O. Grimes, as a Member of the House of Representatives of the Twenty-Third Legislature of the State of Arizona, Petitioners,
v.
Jewel W. JORDAN, State Auditor of the State of Arizona, Respondent.

Page 780

[82 Ariz. 154] Udall Pace, Yuma, Snell & Wilmer, Perry M. Ling, Phoenix, for petitioners.

Robert Morrison, Atty. Gen., for respondent.

UDALL, Chief Justice.

This is an original proceeding in this court, initiated by Honorable Harold C. Giss, a member of the Senate, and Honorable J. O. Grimes, a member of the House of Representatives of the Twenty-third Legislature of the State of Arizona. Petitioners seek a peremptory writ of mandamus to compel respondent Jewel W. Jordan, state auditor, to approve their claims as submitted and to draw her warrants therefor on the state treasurer, for the payment of certain sums claimed to be due them under the provisions of section 41-1103, A.R.S., for expenses incurred as legislators 'for subsistence, incidentals, lodging and other expenses'. The respondent questioned the constitutionality of the Act-as it is construed by petitioners-and has thrice refused to make the payments therein provided unless there were compliance with other statutory requirements, hereinafter set forth. Her last refusal was after the Governor of Arizona, acting under the provisions of section 41-141, A.R.S., had approved said claims. We assumed original jurisdiction and issued an alternative writ of mandamus.

In respondent's answer to the alternative writ it is stated:

'* * * Respondent denies that she has refused to approve and issue a warrant for reimbursements to the members of the legislature for money expended by them for actual and necessary lodging, subsistence and incidental expenses in the aid of the performance of their duties and responsibilities while in attendance at sessions

Page 781

of the State Legislature, other than she has refused to approve the claims which are the subject matter of this action because they do not disclose sufficient information to discharge her duties as State Auditor pursuant to A.R.S., section 41-141.

'As a further and separate defense, Respondent alleges that she is and has [82 Ariz. 155] been willing to approve claims for reimbursements to members of the legislature, including petitioners, and that she has been and is approving and issuing warrants for reimbursements for approximately 100 members of the present legislature; that she is requiring that such claims for reimbursement be made on a form itemizing the reimbursements claimed and requiring that the same be made under oath by the individual members of the legislature, or that in lieu thereof she is requiring that receipts supporting the claims be provided the Respondent, in order that she may be able to carry out her duties as State Auditor pursuant to A.R.S., section 41-141, so that she can ascertain that the claims are consistent with the provisions of Article 4, part 2, sections 1 and 17 of the Arizona State Constitution.'

The pertinent provisions of the constitution referred to above read as follows:

'(2) From and after the adoption of this amendment members of the legislature shall receive $8.00 per day * * *.' Art. 4, Pt. 2, section 1(2).

'Extra compensation prohibited; increase or decrease of compensation during term of office.

'Section 17. The Legislature shall never grant any extra compensation to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract entered into, nor shall the compensation of any public officer, * * * be increased or diminished during his term of office * * *.' Art. 4, Pt. 2, section 17.

In order to better understand the position of respondent we deem it necessary to refer to some legislative and judicial history on this matter of subsistence and lodging expenses for members of the legislature. Prior to the year 1947 no such expenses had ever been allowed. The Eighteenth Legislature enacted Chapter 16, Laws 1947 (as amended see, section 41-1103, A.R.S.), the pertinent part thereof reading:

'Section 1. Reimbursement Of Members Of Legislature. Any member or employee and officer of the legislature, while absent from his usual place of residence in the service of the state during a session of the legislature, shall be reimbursed for his actual and necessary expenditures for subsistence and lodging, not to exceed the sum of ten dollars per day. All claims for reimbursement as provided in this Act shall be filed as other claims against the state, and shall be accompanied by receipts or vouchers evidencing such expenditures.'

It will be noted that this Act provided (a) for expenses only for those members who [82 Ariz. 156] were away from their usual place of residence, (b) reimbursement only to the extent that claims were supported by receipts or vouchers, and (c) a maximum limitation of ten dollars per day. Furthermore, the Act provided that claims thereunder should be filed and audited 'as other against the state', i.e., there was no effort made to bypass the state auditor's scrutiny of such claims. The constitutional validity of this Act was upheld by us in the case of Earhart v. Frohmiller, 65 Ariz. 221, 178 P.2d 436. The true rule announced in that case is that the legislature might provide reimbursement for legitimate expenses incurred by its members-i.e., actual 'out-of-pocket-cash' expenditures.

The respondent nowise questions this holding. In fact that attorney general, as

Page 782

her counsel, expressly concedes, (1) 'reimbursement to members of the legislature for actual cash outlays necessarily incurred for subsistence and incidentals while away from home in the performance of their duties does not violate the constitution of Arizona'; (2) a similar concession is made as to reimbursements to members of the legislature who do not live away from home. However, as will be shown, the law relative to such claims has been changed in some important respects which creates an entirely new problem insofar as constitutionality of the revised Act is concerned.

The present statute relied upon by petitioners, insofar as pertinent, reads as follows:

'Reimbursement of expenditures

'A. Each member of the legislature, during sessions of the legislature, shall be allowed and receive in addition to any compensation and mileage as authorized by law a reimbursement for subsistence, incidentals, lodging and other expenses in aid of the performance of his duties and responsibilities as a legislator, as follows:

'1. If residing at his usual place of residence, not to exceed twelve dollars per day.

'2. If not residing at his usual place of residence, not to exceed seventeen dollars per day.

'D. Reimbursement of expenditures made under the provisions of subsections A, * * * of this section shall not be subject to the provisions of § 35-181.

'E. All payments provided for in this section shall be paid upon approval of the president of the senate or the speaker of the house of representatives from funds appropriated for the house of the legislature over which he presides.' § 41-1103, A.R.S. (Emphasis supplied.)

[82 Ariz. 157] It will be noted that under subdivision D, supra, such claims are purportedly exempt from the requirements of section 35-181, A.R.S., which, in part, reads:

'Article 5. Fiscal Procedures, Controls And Reports

' § 35-181. Presentation, approval and payment of claims and payrolls

'A. All claims against the state for obligations authorized, required or permitted to be incurred by any state officer or agency, shall be paid only in the following manner:

'The claimant shall present an itemized claim, sworn to by him and approved by the head official of each office or state agency under which the obligation was incurred, or by some other person thereof, if expressly authorized to approve the claim. * * * The claim shall then be presented to the state auditor and, if approved, the auditor shall draw his warrant therefor on the state treasurer, who shall pay it when countersigned by the governor but only from the appropriation made therefor. * * *'

Petitioners' claims-refused by the auditor-are practically identical, varying only as to amounts claimed due (Senator Giss of Yuma County claims 7 days expenses at $17 per day or a total of $119; Representative Grimes, who resides at his usual place of residence in Tempe, claims 7 days expenses at $12 per day or a total of $84); each bear the signature of claimants and the approval thereof by the presiding officer of their particular legislative body. The body of such claims is as follows:

'Expense Voucher

(Name of Legislative Body)

'State of ...


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