Prideaux v. Frohmiller , 47 Ariz. 347 ( 1936 )

This is an original proceeding in mandamus against Ana Frohmiller, as state auditor. It seeks to compel the auditor to audit, allow, and draw a warrant for a claim of $6 for services rendered by plaintiff, Prideaux, to the state tax commission in the preparation of a defense to a suit in the United States District Court for Arizona by the United Verde Copper Company against said commission, involving the company's tax assessments for the year 1933; also a claim for $6 for like services in preparation of a defense to a suit by the Verde Tunnel Smelter Railroad Company against said commission, involving the company's tax assessment for the year 1935.

The complaint sets out that the debt owing to plaintiff was incurred by the state tax commission under and by virtue of an authorization of the Governor of the state, issued and proclaimed on January 31, 1936, pursuant to the provisions of chapter 61, Laws 1931, and section 2620, Revised Code of 1928, the latter being a part of the state Financial Code.

It appears from the complaint and the Governor's proclamation that, in addition to the two above-named suits, there are pending in the same court, four suits by the Phelps-Dodge Company, contesting its assessments for the year 1935; two by the Central Arizona Light Power Company (one for 1933 and one for 1934); one by the Verde Tunnel Smelter Railroad Company, contesting its assessment for the year 1935; one by the United Verde Copper Company, contesting its assessment for the year 1934; and two by the Valley Bank Trust Company contesting its assessments for the years 1934 and 1935.

The Governor's authorization to the tax commission to incur debts to defend tax assessment suits extends to those brought against the tax commission before the time the Twelfth Legislature met (January 14, 1935), as well as those instituted after the adjournment of the legislature.

It appears from the complaint that there remains in the state treasury to the credit of the Governor's general fund a balance of $400 of the $10,000 that the Twelfth Legislature appropriated "for the prosecution, defense or settlement of pending tax litigations" (subdivision 33, § 1, chap. 107, Laws 1935), and that such sum is all that is available for the defense of the several suits; that the tax assessments are contested on the ground that the contestants' properties are assessed at more than their value while other taxpayers' properties are assessed at only 60 per cent. of their value; and that such sum ($400) is wholly inadequate to gather and prepare the necessary evidence and present the same in the trial of said cases, or any one of them.

The Governor's authorization was to incur debts and liabilities in the sum of $15,000, or so much thereof as is necessary, for the defense of the several suits named above, to be paid, as other claims against the state, from the general fund. It is alleged in the complaint that there is, and was at all times, an unexpended balance of $15,000 in the fund against which the claims of this plaintiff are chargeable, and this stands undisputed; also that such claims were approved by the chairman of the state tax commission.

The defendant has filed a general demurrer to the complaint and contends it should be sustained for the reason that the appropriation in chapter 61, supra, out of the general fund is invalid because no maximum limit is fixed therein.

The object and purpose of the proceeding is to have determined whether the tax commission, as the body constituted by the legislature to supervise the assessment of property for taxes, shall be supplied with money with which to prepare a defense to the suits brought by the above taxpayers. It appears from the complaint that the taxes involved amount to approximately $4,000,000, and it can thus be seen that the litigation is of considerable magnitude and of great interest to the state government and to the other taxpayers of the state who had paid their taxes. It is also seen that the nature of the question involved will necessitate an outlay of considerable sums of money for witnesses and other expenses incident to a trial or trials.

To determine the question involved, it will be necessary that we construe section 2620, supra, and chapter 61, supra, and we therefore set them out at this place.

"§ 2620. Balances to be used as emergency fund; such funddefined; method of expending. All balances in the general fund, after distributing the credits therein for the purposes and as provided by law, shall be set aside and be available as an emergency fund for state purposes, to the amount necessary to meet contingencies and emergencies arising from invasions, riots or insurrections, epidemics of disease, acts of God resulting in damage or disaster to the works, buildings or property of the state or which menace the health, lives or property of any considerable number of persons in any community of the state, and for which no other funds are appropriated, or for which the appropriation was insufficient to meet the emergency. The governor may authorize the incurring of liabilities and expenses to be paid as other claims against the state, from the general fund, when the emergency fund is sufficient for that purpose. In such contingency or emergency, the governor may authorize the incurring of debts against the state, to the amount necessitated thereby, in excess of the amount of such emergency fund, provided, the aggregate amount of the debt so incurred and the then existing debts of the state, direct or contingent, shall not exceed the sum of three hundred fifty thousand dollars."

Chapter 61 reads:

"Section 1. In addition to the powers granted to the governor under Section 2620, Revised Code, 1928, the governor when requested by the tax commission and the attorney general, for the purpose of providing funds to defend suits brought against the tax commission contesting tax assessments, may authorize the tax commission to incur debts and liabilities against the state to be paid as other claims against the state from the general fund."

It will be noticed that section 2620 (1) creates an emergency fund and defines it. It comes out of the state general fund and is made up of balances therein after distributing to all the officers, departments and state agencies their proportion of such fund as fixed in the biennial appropriation act. (2) This emergency fund is available in "the amount necessary to meet contingencies and emergencies arising from invasions, riots or insurrections, epidemic of disease, acts of God," etc., for which no other funds have been appropriated or for which the appropriation was insufficient to meet the emergency. (3) Before the emergency fund may be used, the Governor must authorize the incurring of the liabilities and expenses, which implies that he must determine the existence of a contingency or emergency of the kind enumerated in section 2620. After such determination, two ways are provided for financing the contingency or emergency: (a) If the emergency fund is sufficient for such purpose, the expense is "to be paid as other claims against the state from the general fund"; (b) if the expense of caring for the contingency or emergency is in excess of the emergency fund, the Governor may authorize the incurring of debts against the state to the amount necessitated thereby, which, however, may not exceed together with the existing debts of the state $350,000, the highest amount under the Constitution the state may become obligated for. Section 5, article 9.

The authority conferred by the legislature on the Governor, to incur debts and liabilities against the state under certain circumstances, is to be exercised only upon a state of facts defined by the law-making body, and if the facts, thus made a condition to the exercise of the authority, exist, there can be no question about the validity of the law.

Legislation conferring authority on an executive officer to authorize the incurrence of debts payable out of a fund created to meet emergencies is recognized and approved by the courts of California. Heron v. Riley, 209 Cal. 507, 289 P. 160;Vandegrift v. Riley, 220 Cal. 340, 30 P.2d 516.

[1, 2] Whether an emergency or contingency exists authorizing the Governor to incur debts against the emergency fund under section 2620 is a question of fact, the ascertainment of which naturally devolves upon the Governor. The exercise of his discretion upon the facts should not be disturbed by the courts unless for a lack of power or an abuse of discretion.Vandegrift v. Riley, supra. [3] The Financial Code was passed by the legislature at its Special Session in 1922, as chapter 35. Section 2620, supra, is an effort, and we think a successful effort, by the codifier to restate, without changing its meaning, section 10 of said chapter 35. We here set out for clarity so much of section 10 as defines "contingencies" and "emergencies" and "emergency fund":

"All balances, which may be available in the General Fund, after distributing the credits therein for the purposes and in the manner provided by law, shall be for use as credits to an emergency fund for State purposes, to the amount which may be necessary to meet contingencies and emergencies as defined in this Section. In the event of invasions, riots or insurrections, epidemics of disease, acts of God which result in invasion, damage or disaster to the works, buildings or property of the State, or, which menace the health, lives or property of any considerable number of persons in any community of the State, and confined to contingencies as to which no other funds are appropriated, or in the event, appropriations have been made for similar contingencies, then, confined to amounts which may be necessary in addition to such appropriation, to meet the emergency in each case, the Governor of the State may authorize the incurring of liabilities and expenses to be paid from the emergency fund created in this Section."

Under this provision, the existence of an emergency being established or admitted for which no appropriation by the legislature has been made, or, if made, has been insufficient, the Governor may authorize the incurring of liabilities and expenses, to be paid from the emergency fund created by section 2620 (section 10, chapter 35), supra. Where an appropriation has been made for one of the objects enumerated in section 2620 as an emergency, the Governor may incur debts against the emergency fund of the state to the same object when the legislative appropriation therefor is insufficient. If the emergency, or the asserted emergency, has not been acted upon by the legislature and appropriated for, it must in fact be an emergency of the kind named in section 2620, that is, an invasion or a riot or an insurrection or epidemic of disease or an act of God causing damage to state property or the health of the people, as stated in said section, before the Governor is authorized to act; and if the legislature has had an opportunity to act and has rejected the object as an emergency, or has failed to approve it by appropriating therefor, or the facts fail to show it to be an emergency, the Governor may not incur debts in behalf of the object. Le Febvre v. Callaghan, 33 Ariz. 197, 263 P. 589.

Looking now to chapter 61, supra, it will be noted it consists of one section only and that it is tied into section 2620 and is supplemental thereto. "To the powers granted to the Governor under section 2620" is given (by said chapter 61) the power to authorize the tax commission, upon its request and that of the Attorney General, to incur debts and liabilities against the state for the purpose of providing funds to defend suits brought against the tax commission contesting tax assessments, to be paid as other claims against the state from the general fund.

We have tried to explain what powers are conferred on the Governor under section 2620, and we now say, whatever they are, chapter 61 adds one other power. It gives the Governor power to authorize, upon proper request, the tax commission to incur debts and liabilities to defend suits contesting tax assessments if the amount appropriated by the legislature for that purpose has proved insufficient, as well as in cases where no appropriation has been made by the legislature.

[4] Suits contesting tax assessments are by chapter 61 made "emergencies." To authorize the Governor to act, it is only necessary that such a suit be filed and pending and that he be requested to incur the debts and liabilities by the tax commission and the Attorney General. No other fact or facts are essential to the exercise of his power. The named prerequisites to his jurisdiction are admitted. [5] We conclude that the debts involved were properly and authoritatively incurred, and that, if there is in the general fund of the state emergency funds sufficient to pay the claims, they should be approved and warrants drawn by the auditor on the treasurer therefor.

[6] It is a fundamental rule of construction of statutes to assign to them, when they are susceptible of more meanings than one, a meaning that will not conflict with the organic law, especially when such construction will effect the evident purpose of the legislature. Automatic Registering Machine Co., Inc., v.Pima County, 36 Ariz. 367, 285 P. 1034; Gietz v. Webster,46 Ariz. 261, 50 P.2d 573. If we treat the directions in chapter 61 as being that the debts and liabilities incurred under the authority of the Governor shall be paid out of the general fund and not out of the emergency fund in the general fund, such provision would be unconstitutional because there is no maximum limit placed thereon. Crane v. Frohmiller, 45 Ariz. 490,45 P.2d 955. But if the directions be construed as going to the emergency fund in the general fund, it would be from an appropriation limited to "all balances in the general fund after distributing the credits therein for the purposes and as provided by law," and be valid and sustainable.

The two provisions of law, section 2620 and chapter 61, were indubitably intended by the legislature to be construed together, the latter being supplemental to the former. Section 2620 makes the debts and liabilities incurred under the Governor's authorization payable "as other claims against the State, from the general fund, when the emergency fund is sufficient for that purpose"; and chapter 61, which by reference adopts the applicable provisions of section 2620, makes the debts and liabilities incurred thereunder payable "as other claims against the State, from the general fund."

[7] Under section 2622, Revised Code of 1928, the emergency fund is not "a special or specific fund" within the general fund, but an authorized credit, or an appropriation, to remain an unsegregated part of the general fund, to be applied to the purpose of the credit or appropriation. The incurrence of the debts here involved was to provide funds to defend suits contesting tax assessments, an emergent matter made so by the law itself, and it is but reasonable to assume the legislature intended by its language in chapter 61 to direct the payment of the expenses of the emergency out of the emergency fund in the general fund, if sufficient; and, thus construed, the directions in chapter 61 are constitutional and also consistent with the other provisions of the Financial Code. The appropriation found in section 2620 is ample authority to pay the expenses and debts of suits contesting tax assessments, and such appropriation is by reference a part of chapter 61 and for that reason the apparent conflict should be reconciled so as to uphold the law and carry out what clearly appears to be the legislative intent. As aptly said in State v. Yelle, 175 Wash. 33, 26 P.2d 622, 624:

"The two acts are in pari materia and must be read and construed together. Each act should be considered in the light of the other as if they constituted but one act. Being construed together as one act, all parts of the two statutes are to be construed together and harmonized in order that the legislative intent be ascertained. 25 R.C.L. 1006."

[8] The legislature is the only arm of the state that has any right or power to appropriate public moneys of the state, and also with it lies the power to designate the subjects or objects for which it will permit the expenditure of public moneys. It, and it alone, may select, define, and designate "emergencies" or "contingencies," and we know of no reason why it may not name and define suits against the tax commission contesting tax assessments as such, and confer upon the Governor power to authorize, when properly requested, the incurrence of debts and liabilities to defend such suits.

The Constitution confers upon the legislature the power to authorize that debts be contracted in situations such as are enumerated in section 2620 and chapter 61, supra, the language of the Constitution being:

"The State may contract debts to supply the casual deficits or failures in revenues, or to meet expenses not otherwise providedfor." (Italics ours.) Section 5, art. 9.

Matters of political concern or matters affecting the general welfare of the people are peculiarly within the legislative discretion. This is especially so in matters of taxation and revenue. There is no restriction in the Constitution against the legislation here involved. On the contrary, we think the above provision confers upon the legislature the power to authorize the incurrence of debts and liabilities in defending suits brought against the tax commission contesting tax assessments, and to provide for their payment.

The legislature has not limited the power of the Governor to authorize debts and liabilities to suits contesting tax assessments arising subsequent to the legislative session, but expressly extends such power to suits when "the appropriation was insufficient to meet the emergency," so that plaintiff's claims — the one for services in suits in which the appropriation is insufficient, and the one for which no appropriation has ever been made — are on the same footing.

What we have said here would at first blush seem to be an overruling of Crane v. Frohmiller, supra, but, as a matter of fact, it is not. In that case the provision in section 2620 limiting the amount of the appropriation for emergencies was not considered in connection with chapter 61. We held there that the appropriation in chapter 61 was unconstitutional and invalid because there was no limit on the maximum amount that might be incurred or expended. It appears now that we overlooked the fact that there is a limit on the amount that may be incurred and expended from the general fund for emergencies and contingencies on the Governor's authorization and that such limit is found in section 2620, supra. [9] Although it is alleged in plaintiff's complaint "That there is and was at all times a sufficient unexpended balance, towit, an unexpended balance of Fifteen Thousand ($15,000.00) Dollars in the fund against which this claim is chargeable," and although this allegation, under the law of pleading, is admitted by the defendant's general demurrer to be true, it occurs to us that such admission may possibly be erroneous. If there is not, as a matter of fact, an unexpended balance in the general fund available as an emergency fund, then the auditor was right in refusing to audit claims and draw warrants therefor. But if there is sufficient balance in such fund, she should audit claims and draw warrants therefor. As the Governor did not attempt in his proclamation to authorize the tax commission to incur debts and liabilities against the state "in excess of the amount of such emergency fund," the claims of plaintiff can be audited and allowed only if there are such funds.

The writ is made peremptory only on condition that there are funds with which to pay claims in the general fund of the state available for emergencies, as provided in section 2620, supra.

McALISTER, J., concurs.