Carr v. Frohmiller , 47 Ariz. 430 ( 1936 )

In reaching their conclusion as to the judgment which should be rendered in the instant case, the majority of the court have followed principles of constitutional law and statutory construction so widely different from that which I have always believed, and still believe, to be correct, that I am not only compelled to dissent from their conclusion, but to voice a protest against the principles thus approved. These principles, divested of all camouflage and worded so simply that the veriest layman may understand their meaning and analyze their ultimate effect, may be stated as follows:

"When one legislature has adopted a project requiring for its operation a long period of time, and the raising and expenditure of large sums of money by the administrative officers of the government, and has made a continuing appropriation therefor, it is beyond the power of a later legislature to hamper or limit the execution of such project, or the right of the administrative officers to raise and spend such sums as appear necessary to carry it out to its fullest extent, by expressly and explicitly limiting the amount of money appropriated to carry out the project, and directing the administrative officers to spend the lesser amount, and no more, thereon, and such officers may and should disregard the later mandate of the legislature and raise and spend such money as may be necessary to carry out the project, in the manner and to the extent directed by the first legislature."

It seems to me that the falsity of this proposition is so obvious to any man who has made a study of our form of government and the constitutional power of the different branches thereof that it requires little explanation to point out wherein the error lies.

It has always been held, ever since the establishment of constitutional government in America, that the power to authorize and direct the expenditure of public money lies in the legislature and the legislature only, except as it may be affirmatively vested elsewhere by the Constitution. It has also been recognized as a fundamental constitutional principle that the mere approval by the legislature of any project requiring the spending of money, and providing in most explicit detail as to how that project shall be executed, and the granting of authority to the administrative branch of the government to carry it out, does not authorize nor empower the latter to spend one penny of public money for any of those purposes unless and until the legislature, in addition to authorizing the project and directing how it shall be carried out, has also appropriated money for that purpose, and the amount of money which may be spent cannot be affected in any manner by the character of the project, nor the amount needed to execute it, but solely by the amount which the legislativeauthority has said may be spent for that purpose, regardless of whether it is sufficient to complete the project in whole or in part. I shall therefore waste no further space in endeavoring to show that the principles above stated are not and cannot be, under our system of government, constitutional and valid, but shall only point out wherein the decision of the majority, as applied to the present case, is necessarily based on those false and fallacious principles.

In 1933 our legislature adopted chapter 34 of the Session Laws of that year, which provided for the establishment of a system of old age pensions for the state of Arizona. The act contains twenty-four sections, and the first twenty-two set forth, in elaborate detail, the establishment of a county commission for the purpose of awarding old age pensions, the qualifications which must be possessed by all pensioners, the manner in which applications should be made and approved, the amount of the pension and its limit, and the method of payment thereof, together with a provision for cancellation and penalties for violation of the act. These sections, while containing a complete and workable system for old age pensions, did not of themselves provide for the expenditure of one penny of money from the state treasury, and, had the act stopped at that point, it would have been illegal for any administrative officer of the state to pay any such pensions from the state treasury. In such a case, our old age pension act would have been in the same position as the Social Security Act recently adopted by Congress (42 U.S.C.A., §§ 1301-1305), for which no appropriation was made when it was passed. Like that act, our act could not have been effective unless and until money was appropriated to pay the expenses of carrying it out. The legislature, realizing that the act was but an idle gesture without any appropriation, then added section 23, which reads as follows:

"Appropriation. The sum of twenty dollars per month to each pensioner under this act or so much thereof as may be necessary, is hereby appropriated out of the general fund of the state, to carry out the provisions of this act. The state auditor shall report to the state tax commission the sum of all warrants issued hereunder, and the state tax commission shall include said sum in determining the annual tax levy."

Let us analyze the section to see just what legal effect it had. What are the requirements of an appropriation? They are: (a) A certain sum; (b) a certain object; and (c) the authority to spend. Nothing further is necessary or even germane thereto. Now all of these requirements are found in the first sentence of the section. The "certain sum" is "twenty dollars per month to each pensioner . . . or so much thereof as may be necessary." Since the name of each individual pensioner and the monthly amount of his pension must be certified to the auditor, under section 11 of the act, a mere mathematical computation will show the amount which may be spent, and "that is certain which can be made certain." The "certain object" is found in the words "to carry out the provisions of this act," while the "authority to spend" appears in the language "is hereby appropriated." The last sentence of the section is obviously entirely unnecessary in order to make a valid and workable appropriation in the act.

But, it will be said, the legislature must have put the sentence in the act for some purpose, and it is our duty to ascertain and enforce that purpose. Quite true, so let us determine what the purpose could be. The sentence contains instructions to two state officers, as follows: (a) The auditor shall report to the tax commission "the sum of all warrants issued hereunder"; and (b) the tax commission "shall include said sum in determining the annual tax levy." Is this a necessary part of an appropriation? It can be neither "an authority to spend" nor "a certain object," for in no conceivable way could the language of the sentence be tortured into either meaning. There remains only the "certain sum." Now, if the "sum of all warrants issued hereunder" is the "certain sum" which constitutes theappropriation, or if it limits or affects that sum in any manner, the act is unworkable. It went into effect July 1, 1933. No warrants, of course, had been issued under it before that date, and none could be issued thereafter until the amount ofthe appropriation was made certain either by the legislature fixing it directly or by setting up a method by which it could be made certain. If "the sum of all warrants issued" was to affect the "certain sum" of the appropriation, since the "warrants issued" were then zero, the auditor's report to the tax commission must certify them as zero, and the "certain sum" which was the basis and limit of the appropriation and which the tax commission would include in its annual levy would necessarily also be zero, and this situation would continue ad infinitum, for zero multiplied by zero indefinitely is still zero. The utter absurdity of imagining the second sentence of the section had anything to do with the amount or validity of the appropriation is so apparent that it is difficult to treat the suggestion seriously. The real purpose of the sentence is plain. It is merely a direction as to how the money required to meet the appropriation already made is to be raised. Since the number of pensioners fluctuates from time to time, it would, of course, be impossible for the tax commission, which makes its levy in August, to know exactly how much money would be needed to pay all pensions for that fiscal year until the end of the year. Two alternative methods for raising funds for that purpose were therefore possible. Either the commission might guess at the amount which would be necessary (based on what had actually been spent during the preceding year) and levy accordingly what it thought would be sufficient for the current year, or else the state treasury would advance the amount necessary to pay the warrants issued by virtue of the appropriation for the current year, and, the amount actually spent thus being definitely ascertained by June 30th of each year, the tax commission would, in the following August, make a levy sufficient to reimburse the treasury for what had been spent during the preceding fiscal year. Each of these plans has been used repeatedly by various legislatures when the precise amount necessary to raise to meet an appropriation could not be ascertained until after it was necessary to make the annual tax levy. It would appear that, since the language of the second sentence states that the amount levied should be exactly the amount for which warrants have previously been issued, it was not the intention of the legislature that the tax commission should make an estimate of what would be needed for the current year, but rather that they should follow the second method of levying an amount sufficient to reimburse the treasury for what had previously been spent. But, be that as it may, under either theory the second sentence is and can be no part of the appropriation, but is merely a direction as to how the levy topay the appropriation shall be made.

Since chapter 34 contained a continuing appropriation, as set forth in the first sentence of section 23, supra, and a method for raising the money to meet that appropriation in the second sentence thereof, no further appropriation from the legislature was necessary in order to carry on indefinitely. The auditor would draw her warrants, not to exceed $20 per month, for the pensioners certified to her under section 11 of the act, and at the end of each fiscal year she would report the amount of the appropriation spent by her during that year, whereupon the tax commission in the succeeding year would make a levy to reimburse the treasury for what had been spent. That this was the view of the Eleventh Legislature is shown by the fact that the general appropriation bill of that year (Laws 1933, chap. 95) made no appropriation whatever for old age pensions, and, as long as no further action was taken by the legislature, the act would continue self-executing and effective indefinitely.

The Twelfth Legislature, however, met some two years later. At this time it had the plenary authority which is held by every legislature, including the right to repeal, to modify, to alter, or to limit any act of any nature passed by the Eleventh Legislature, in any manner it might see fit, restrained only by the express provisions of the Constitution itself, for it must never be forgotten that, while all the other departments of state look to the Constitution for their authority to act, the legislature looks to the Constitution only for limitations thereon. In other words, no officer of another department of government may do anything unless directly or impliedly authorized by the Constitution or laws passed in pursuance thereof, while the legislature has the full power of the Parliament of England, except as that power is limited by the express or implied provisions of the Constitution itself. The Twelfth Legislature evidently was satisfied with the general scheme of the Old Age Pension Law and the manner in which it should be carried out, for it made no changes therein; the method of awarding pensions was left the same; the method of making a levy reimbursing the treasury for any money expended by reason of the law was not altered. But, when it came to the question as to how much should be appropriated to carry out the terms of the law, that legislature spoke, and spoke explicitly and emphatically. The general appropriation bill of 1935 (Laws 1935, chap. 107) contained the following language:

"Section 1. The following sums herein set forth are hereby appropriated for the fiscal years beginning July 1, 1935 and ending June 30, 1936, hereinafter designated as the 24th fiscal year, and beginning July 1, 1936 and ending June 30, 1937, hereinafter designated as the 25th fiscal year, for the several purposes and objects as hereinafter specified, and the state auditor is hereby authorized and directed to draw warrants on the state treasurer to and not to exceed the amounts herein set forth and for the purpose herein specified; and the state treasurer is hereby authorized and directed to pay said warrants out of the general fund of the state and the appropriation for the respective state agencies herein made. . . .

"Subdivision 64.   Old Age Pensions.
                             For the 24th    For the 25th
Fiscal Year     Fiscal Year
"Pensions                 $275,000.00    $275,000.00."

This act which, of course, so far as it was constitutional, superseded ipso facto the terms of any acts or parts of acts of any previous legislature in conflict therewith, whether the earlier act was expressly repealed or modified or not, specifically provided an appropriation of $275,000, and no more, for the twenty-fourth and twenty-fifth fiscal years, respectively, for the purpose of the payment of old age pensions, and provided "the said auditor is hereby authorized and directed to draw warrants on the state treasurer to and not to exceed the amounts herein set forth and for the purpose herein specified." It seems to me it is impossible to frame language more definite and mandatory limiting the amount of warrants that the state auditor may draw for old age pensions during the twenty-fourth and twenty-fifth fiscal years to the sum of $275,000 for each year. In so far as the appropriating sentence of section 23,supra, is in conflict with this appropriation, it must necessarily fall. Is there a conflict? We must assume that the legislature had some purpose in placing in the general appropriation bill for 1935 an appropriation for old age pensions when it had not put one in the appropriation bill of 1933. There could be only one of two reasons for the change. The first is, that it believed the appropriation contained in chapter 34,supra, was not continuing in its nature, and that, in order to provide some money for the operation of the law, it was necessary for the legislature of 1935 to make a new appropriation. The second is, that it assumed that the appropriation in chapter 34 was continuing in its nature and ample to carry out the provisions of the act, as it clearly was, but that for some reason it determined to replace such appropriation by an appropriation limited to a specific sum and not fixed by the number of pensioners and the amount of pension granted by the county commission. Any other reason for its conduct is inconceivable. But, no matter which purpose activated the legislature, the effect would be the same in either case. The appropriation of 1935 was substituted for the appropriation of 1933. If the Twelfth Legislature meant the appropriation of 1933 to continue, it was absurd and useless to place another appropriation for a different amount, determined in a different manner, within the general appropriation bill. If it did not wish the 1933 appropriation to continue, it was necessary to make a new appropriation. I see no escape from the conclusion that the appropriation contained in the appropriation bill of 1935 is, as a matter of constitutional law, a substitute for that contained in chapter 34, and was so intended by the legislature.

But it is urged that even the legislature may not constitutionally include general legislation in the general appropriation bill, and that the second sentence of section 23 could not be repealed by that bill. The general principle thus stated is quite true, and the second sentence of the section could not be, and was not, repealed by the appropriation bill of 1935. But what is the effect of that sentence? It does not make an appropriation in any manner. As I have pointed out, it merely directs the tax commission to reimburse the treasury for the amount actually spent for old age pensions by virtue of the appropriation for the preceding fiscal year by levying a tax therefor in a certain manner during the current fiscal year, and that is still the law. The auditor was authorized by the appropriation bill of 1935 to draw her warrants for old age pensions not in excess of $275,000 during the twenty-fourth fiscal year. That amount might or might not be sufficient to pay all the pensioners certified to her the full sums provided in the pensions granted them, but that was not her business. The pension was not a vested right in any of the pensioners; that was a matter in the discretion of the legislature, and in the exercise of its legal discretion it told her that, although she might pay less, she could not pay more, than $275,000. At the end of the twenty-fourth fiscal year, it was her duty, under the last sentence of section 23, supra, to certify to the tax commission the amount of warrants she had issued. It was their duty, when they made the levy for the twenty-fifth fiscal year, to raise an amount sufficient to reimburse the treasury for the warrants thus paid, and no more. It seems to me from the language and citations found in the majority opinion that its signers have been misled by the fallacious idea that the second sentence of section 23, in some mysterious way beyond my power to understand, is a vital and inseparable part of the appropriation contained in the first sentence, and yet at the same time is substantive law which can neither be repealed by the general appropriation bill of 1935 nor left in force to raise the money to be spent by virtue of the appropriation contained in that bill.

It seems to me that I have demonstrated, beyond any reasonable possibility of contradiction, that the appropriation made by the legislature for the purpose of old age pensions at its session in 1935 was a substitute for the appropriation made by the previous legislature in chapter 34, supra, and that the necessary and inevitable effect of the 1935 appropriation, since it was in conflict with the one of 1933, was to repeal the latter. If this be true, the auditor could not issue more warrants after the later appropriation was exhausted.

I am heartily in sympathy with the principle of old age pensions, and I believe that, when a pension of this kind has been established, it should be paid to those entitled thereto by law. But I think it should be paid in a legal, constitutional manner, by an appropriation made by that body which alone is vested with the authority to make appropriations, and that, if it has been mistaken in its judgment as to the amount needed, it ill becomes the administrative or judicial departments of the government to violate plain and fundamental constitutional principles in order to supply what the legislature has omitted, but what it can simply and easily provide upon the shortest notice, if it so desires.

In closing, I shall take a few moments to point out the appalling results which will be reached if the principles which the majority of the court has applied in this case are followed to their logical conclusion in succeeding cases which may and undoubtedly will, sooner or later, come before us. The contention has been made seriously that, when the legislature has imposed certain duties upon any public officer, and has appropriated a sum insufficient for him, in his opinion, to perform those duties properly, he may, without asking the consent of the legislature, spend such additional sums to carry out those duties as he may deem necessary, and that the auditor is bound to draw her warrant for those additional sums and the treasurer to pay them as there is money in the treasury. If this be true, the effect is to transfer the control of the purse from the legislative to the executive and judicial departments of the state government. The ordinary man, upon this last situation being suggested to him, would repudiate its constitutionality with indignation, and yet, if we are to apply the same principles as those necessarily used by the majority in reaching the conclusion which they have, this is the result which must inevitably be reached. The old maxim that "the end justifies the means" has always been repudiated by every right thinking man, and yet, in the long run, it seems to me that the only excuse for the conclusion of the majority is that the end, to wit, that the old age pensioners should be paid without the necessity of calling the legislature into special session for the purpose of making a constitutional and legal appropriation therefor, is so important that it justifies what is, in my opinion, an unconstitutional administrative and judicial appropriation for that purpose by the other departments of the state government.