Carr v. Frohmiller

This proceeding in mandamus against Ana Frohmiller, state auditor, has for its purpose a judicial determination as to whether there are in the state treasury funds available to pay the burial expenses of a deceased old age pensioner.

The plaintiff shows by his complaint that he was employed for the sum of $100 by the board of supervisors of Maricopa county, acting as the old age pension commission of said county, to bury one Juana Gonzales, who died while holding a certificate entitling her to a pension from the county and state; that he prepared her body for burial, and buried her on January 17, 1936; that thereafter, on January 28th, he presented a claim of $67, that being the state's proportion of the burial expenses, to the state auditor, duly verified and properly approved by the said old age pension commission of the county, drawn against the appropriation for old age pensions as made by chapter 34, Laws of 1933, for audit and allowance, and that the auditor refused to audit the claim or to draw her warrant therefor. It is alleged that there are sufficient unexpended and unencumbered funds in the state treasury appropriated by said chapter 34, and that plaintiff's claim is a legal charge against such fund.

The auditor's defense consists of a general demurrer and an answer; the latter being in the following words:

"Admits all the allegations of facts contained in Petitioner's Petition, and as an affirmative defense, alleges that the appropriation for old age pensions and burial expenses contained in subdivision 64 of the General Appropriation Bill for the present fiscal year, being chapter 107, Laws of 1935, has been expended for pensions and burials; that said appropriation is completely depleted and exhausted; that by operation of said General Appropriation Bill and the provisions of the Financial Code of Arizona, the continuing appropriation contained in chapter 34, Laws of 1933, was discontinued on July 1, 1935; that there is no appropriation of funds against which Respondent is authorized to draw a warrant in payment of Petitioner's claim."

From the answer, it appears that the refusal to audit and allow plaintiff's claim is not because there is no pension fund but because the legislative appropriation for the fiscal year 1935-1936 has been exhausted. Plaintiff alleges the existence in the state treasury of sufficient unexpended and unencumbered funds appropriated for the payment of his claim, and this allegation is not denied. Indeed, it is expressly admitted. Although it does not appear in the pleadings, the fact is the levy by the tax commission for pensions for the twenty-fourth fiscal year was $409,434.99. Because the question involved should be settled as soon as possible, we will proceed as though this fact were pleaded.

Because it is anything but clear as to what action she should take, the auditor, we think very properly, declined to audit and allow the claim. Whether she was right in basing her refusal upon the fact that the amount set aside in the general appropriation bill for pensions (Laws 1935, chap. 107) was exhausted, is the question. In other words, it appears, as we shall show, that two appropriations for pensions for the twenty-fourth fiscal year have been made by the legislature, one under the Old Age Pension Act, and one in the general appropriation bill of 1935 (Laws 1935, chap. 107), and that the latter is exhausted, whereas there is a balance of approximately $125,000 in the former. This is because the levy and collection of taxes were made to meet the appropriation under the Old Age Pension Act or chapter 34, Laws of 1933. Whether these two legislative expressions can be reconciled or which one shall be accepted as the guiding rule and applied must be decided.

[1] Chapter 34, Laws of 1933, is the Old Age Pension Act. Under it the board of supervisors of each county is made the old age pension commission of its county. The act is almost entirely administered by the county pension commission as agent of the county and state. Applications for pensions are passed upon and allowed or disallowed by the county pension commission. If allowed, the commission issues to the pensioner a certificate, good for one year, unless sooner revoked, which shall give the pensioner's name, age, residence and the amount of his monthly pension, which may be as much as, but cannot exceed, $30. The pension commission, upon awarding a pension, is required to certify the fact to the state auditor, upon the blank prepared by the auditor, and also to the county treasurer of the county where the pensioner resides, and such certificate, until revoked, superseded, or nullified by expiration or death, is authority to the state auditor and the county treasurer to draw their monthly warrants in payment of pension in the proportion of 67 per cent. and 33 per cent., respectively, to be paid by the state out of its general fund and by the county out of its general fund.

Section 14 of the Pension Act reads:

"Payment of Funeral Expenses. Upon the death of a pensioner, the monthly instalment then accruing, with an additional amount to be fixed by the county commission, but not to exceed a total of one hundred dollars shall, if the estate of the deceased is insufficient for such purpose, be paid to such person or persons as the commission may direct, for the burial of the pensioner."

This section contains the only specific reference to funeral expenses. It does not provide who shall pay these expenses — whether the county or the state, or both. We think, however, since the pension for the month in which the pensioner dies is made a part of the funeral expenses, it is but reasonable to assume that it was intended by the legislature to be a joint obligation of the state and county in the proportion of 67 per cent. and 33 per cent., respectively.

[2] Section 23 makes a continuing appropriation to cover the obligations authorized to be incurred under chapter 34. It reads:

"Sec. 23. 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."

The appropriation is made "to carry out the provisions of this act," and one such "provision" is that the county pension commission may incur expenses for the burial of the pensioner up to $100, if his estate is insufficient to care for such expense. Hence we think the appropriation was intended to cover both pensions and burial expenses.

It will be noted that section 23 provides that the state auditor shall report to the state tax commission "the sum of all warrants issued" under the act, and that "the state tax commission shall include said sum in determining the annual tax levy."

Section 3063, Revised Code of 1928, makes it the duty of the state tax commission, acting as a board of equalization, to "fix the rate of taxation for state purposes to be levied and collected in each county."

And section 3096, Id., provides the levy shall be for "such a sum of money as the legislature may prescribe and deem to be sufficient. With other sources of revenue, to defray the necessary ordinary expenses of the state for each fiscal year or years, and to pay the interest and principal of the bonds of the state."

Section 23, supra, was enacted quite a while after sections 3063 and 3096, supra, and it provides the rule to ascertain the "annual tax levy" for old age pensions. The state tax commission makes the levy, and it must in doing so include "the sum of all warrants" theretofore issued to old age pensioners. This, we assume, is what was done. The tax commission did not take the appropriation of $275,000 for 1935-1936 as the basis for fixing the rate of levy, but "the sum of all warrants," and as a result there has been levied and collected an excess over the appropriation contained in the general appropriation bill.

In refusing to make the rate of levy on the appropriation by the legislature for old age pensions and in fixing such rate on "the sum of all warrants issued," the tax commission strictly obeyed the law. The tax commission might and should have used the legislative appropriation as the basis for that purpose if the legislature had not directed it to use the rule prescribed by section 23 of chapter 34 as the basis of "the annual tax levy."

So we concluded that the money in the state treasury for old age pensions and funeral expenses, admitted by the answer to have gotten there under the provisions of the Old Age Pension Act, was levied and collected in pursuance of law and is available under the appropriation contained in section 23 to pay the plaintiff's claim for burial expenses of pensioner Gonzales, unless the legislation of 1935 in the general appropriation bill (Laws 1935, chap. 107) has superseded or repealed the authority of the tax commission to base its levy for old age pensions on "the sum of all warrants issued," and also suspended, superseded, or repealed the appropriation under chapter 34.

The defendant submits that such was the effect of the legislative appropriation, and it must be conceded that the answer to the proposition raised is not an easy one. The pertinent part of the general appropriation bill reads:

"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 . . . 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 Fiscal Year "Pensions ............ $275,000.00."

Condensed, literally this means that the auditor shall not draw warrants for old age pensions for the twenty-fourth fiscal year for any sum above $275,000, and, since the defendant's answer is that this sum has been exhausted in paying pensions and burial expenses, the matter is at an end, unless such prohibition is treated as ineffective because of other provisions of the law.

[3] It is a rule of construction that "``a statute should be given effect according to its purpose manifested by its language and other rules of construction. The court is often not controlled by the literal language of the statute, but by its meaning when properly interpreted, though outside of such literal meaning. City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159. . . .' Nunez v. Borden, 226 Ala. 381,147 So. 166, 167." Abramson v. Hard, 229 Ala. 2, 155 So. 590,593.

Also as said in 25 Ruling Case Law, 967, section 222:

"It often happens that the true intention of the lawmaking body, though obvious, is not expressed by the language employed in a statute when that language is given its literal meaning. In such cases, the carrying out of the legislative intention, which, as we have seen, is the prime and sole object of all rules of construction, can only be accomplished by departure from the literal interpretation of the language employed. Hence, the courts are not always confined to the literal meaning of a statute; the real purpose and intent of the legislature will prevail over the literal import of the words. . . ."

It should be remembered that we are not troubled with a lack of appropriation to pay pensions and burial expenses of pensioners; if anything, we have too much appropriation. In one breath and time the legislature has directed the tax commission to raise funds to pay each old age pensioner at the rate of $20 per month and in another breath and time has said only a portion of the fund thus levied and collected can be audited and paid out for pensions and burial expenses. If the levy and collection of taxes had been, as the legislature erroneously expected it would be, for a sum sufficient to meet the appropriation of $275,000, and no more, then there would exist an excuse for the prohibition directed at the auditor. But we will not ascribe to the legislature an intention or purpose to restrict the auditor to the auditing of claims only up to such appropriation when the fact situation shows the levy and collection to meet pensions and burial expenses were made under the Old Age Pension Act and amounted to more than $400,000 instead of $275,000.

We think it but right to assume that the legislature was trying to meet and take care of the obligations or charges created by the Pension Act and not some or a part of such charges and obligations, and that, if it had considered that the tax commission was compelled under the law to make the levy for old age pensions on the basis of "the sum of all warrants issued," it would not have forbidden the auditor to audit and approve claims for pensions or burial expenses as long as the treasury had funds to pay such claims.

We should also take into consideration that the legislature by the Pension Act has divided the pecuniary obligations and charges for old age pensions and burial expenses between the county and the state in the proportion of 33 per cent. and 67 per cent.; that the auditor's authority to issue her warrant to cover such items is the certificate of the county pension commission, and that, if there are pension funds in the general fund, it is made her duty to issue her warrant. If we give effect to defendant's contention, we have this rather unique, not to say peculiar, situation: The county is required to raise and pay its proportion of the pensions and the state is not. In other words, the apportionment and appropriation contained in the Old Age Pension Act are in force as to the counties and superseded or suspended or repealed as to the state when the sum of $275,000 is exhausted.

The appropriation in the general appropriation bill is for a lump sum, and in and of itself means nothing. To make it intelligible, reference to the Old Age Pension Act is absolutely necessary.

[4] That the legislature did not intend to supersede, suspend or repeal the appropriation in the Old Age Pension Act may be inferred from the fact that the appropriation in the general appropriation bill is for "pensions" or "old age pensions" only. There is no provision therein, as in the Old Age Pension Act, for burial expenses.

Another thing is obvious: Whatever pension funds there are in the state treasury for the twenty-fourth fiscal year did not get there on the basis of the appropriation for pensions in the general appropriation bill, but through the observance by the state tax commission of the provisions of the Old Age Pension Act. As a matter of fact, there was no levy or collection of taxes to meet the appropriation of $275,000, although the taxes levied and collected were very much in excess thereof. As we have shown, the levy and collection of the taxes were made on the basis of "the sum of all warrants issued" under the Old Age Pension Act, and it could be only from such fund that the auditor has paid pensions and burial expenses during the fiscal year 1935-1936. The tax commission completely ignored the attempted limitation by the legislature (in the general appropriation bill) of the sum to be levied, and proceeded to make the levy according to the rule prescribed in the act (chapter 34, supra) creating old age pensions.

[5] If the legislature was of the opinion that the pensioners of the state were being paid too much and that the burden upon the taxpayers was too heavy, it should have changed the rule of the tax levy as prescribed in section 23 of the Pension Act. This it did not do. The rule that the rate of levy must be based on "the sum of all warrants issued" remains unchanged.

[6, 7] The general appropriation bill is not "legislation" in the strict sense. Its object is to provide funds to meet previously authorized expenses of the government's different departments, offices, agencies and institutions. Sellers v.Frohmiller, 42 Ariz. 239, 24 P.2d 666. Chapter 34 provides for old age pensions and burial expenses for old age pensioners. It makes a continuing appropriation to care for them. There is no legal objection to continuing appropriations. We have so held many times.

[8] The pension money was levied and collected for the specific purpose and object of paying pensions and burial expenses of deceased pensioners. The administrative and executive officers of the state have collected such funds under a mandate of the legislature, and under our Constitution such funds cannot be expended for any other purpose.

"Section 3. . . . No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the tax, to which object only it shall be applied." Article 9, Constitution.

"Section 9. Every law which imposes, continues, or revives a tax shall distinctly state the tax and the objects for which it shall be applied; and it shall not be sufficient to refer to any other law to fix such tax or object." Article 9, Constitution.

[9, 10] While no doubt the legislature has the power and right to dispose of any balance left in the state treasury after the objects and purposes for which the taxes were levied and collected have been satisfied, and may direct that such balance be turned into the general fund, there is real, serious, fundamental objection to the legislature's levying and collecting taxes for a specific object and purpose and then prohibiting its expenditure for that purpose and letting it revert to the general fund. If the fund is not used to pay pensions and burial expenses, it will be discontinued at the end of 1935-1936, "and shall no longer be applicable to the purposes of the original appropriation." Section 2614 (Financial Code), Revised Code of 1928. We do not think the legislature has the power or right to thus defeat and set aside a provision of the state Constitution.

[11] It is unquestioned that the legislature has the power to abolish or reduce or change old age pensions, but the proper way to manifest such intention would be by amending or repealing the Old Age Pension Act. The mere fixing of a maximum amount for old age pensions in the general appropriation bill cannot accomplish such purpose. The Old Age Pension Law would still exist, regardless of any such action. The reasoning of the court inState v. Eggers, 36 Nev. 372, 136 P. 100, 101, where the question was what the effect of an appropriation in the general appropriation bill has on the substantive or general law, was as follows:

"These appropriation bills, as indicated by the titles, are passed for the support of the state government, and are not legislative acts changing the substantive or general laws of the state. The civil government of the state is established by the Constitution and general statutory provisions, and it is for the support of such government that general appropriation bills are enacted. It is not expected that changes and amendments in the general laws of the state will be made in general appropriation bills, and the life of such acts is only two years.

"Although failure to appropriate will prevent recovery from the state for traveling expenses, if the Legislature in the most explicit terms had designated in the general appropriation bill that the statute providing for the payment of traveling expenses for different officers should be repealed, or should be suspended for two years, such provisions or enactments would be void under section 17, article 4, of the Constitution, which provides: ``Each law enacted by the Legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be revised or amended by reference to its title only; but, in such case, the act as revised, or section as amended, shall be re-enacted and published at length.'

"Any provision for the repeal or enactment of a law authorizing payment of the traveling expenses of an officer would not be germane to this act, which is entitled ``An act making appropriations for the support of the civil government of the state of Nevada for the years 1913 and 1914,' for the title does not indicate a purpose to repeal or amend any such existing law.State v. Gibson, 30 Nev. [353] 356, 96 P. 1057; State v.Board of County Commrs. of Washoe County, 22 Nev. 399,41 P. 145; State v. Silver, 9 Nev. [227] 231; State ex rel. Chase v. Rogers, 10 Nev. [250] 253, 21 Am. Rep. 738.

"Any act to suspend or amend one or more acts would not be effective unless the title of the amendatory act were pertinent; and if it were sought to amend two or more acts by one amendatory act, it would not be valid or amend any act to which the title of the amendatory act was not pertinent. State v. Ah Sam,15 Nev. 27, 37 Am. Rep. 454; Ex parte Hewlett, 22 Nev. 333,40 P. 96; State v. Commissioners, 22 Nev. 399, 41 P. 145;State v. Hoadley, 20 Nev. [317] 318, 22 P. 99."

[12, 13] Since our Constitution has provisions similar to those mentioned, the court's observations that the General Appropriation Act, because of certain fundamental reasons, cannot have the effect of amending or repealing or suspending a general law, are applicable here. In other words, none of the provisions of the Old Age Pension Act was repealed or suspended or superseded by the mere appropriation of $275,000 for pensions for the fiscal year 1935-1936.

[14] If there is a repeal or suspension of any of the provisions of the Old Age Pension Act, it is by implication from the sole fact of a smaller appropriation for the twenty-fourth fiscal year for pensions than is provided for in such act. The Pension Act provides for a tax levy sufficient to pay each old age pensioner $20 per month, or so much thereof as may be necessary, the probable number of pensioners for the ensuing fiscal year to be arrived at on the basis of the sum of all warrants issued during the previous year. And the lump sum appropriation for the same year ignores such formula and arbitrarily fixes the sum for pensions at $275,000. The question is, Does this action on the part of the legislature have the effect of suspending or superseding the formula prescribed in the Old Age Pension Act? It certainly does not either expressly or impliedly repeal such provision. Does it impliedly authorize the tax commission to adopt a different formula in making the annual tax levy for pensions? Concretely, can the tax commission disregard the probable number of pensioners for the ensuing year and the amount necessary to pay their pensions as provided in the Old Age Pension Act and make a levy on the equalized value of the property of the state at a rate sufficient to raise $275,000? If it can, the mere appropriation of the latter sum has a most devastating effect on the Old Age Pension Act. It amends such act by substituting for specific monthly pensions at a fixed rate a lump sum to be prorated among the pensioners on the basis of a reduced monthly pension, or it leaves the pensions and burial expenses unchanged and modifies the formula for the tax levy so that the sum to be collected will be inadequate to meet the pensions. In other words, by implication the whole structure of the Old Age Pension Act is changed by a mere appropriation.

For the various reasons herein assigned, we conclude that it is the duty of the state auditor to audit the plaintiff's claim and draw her warrant on the treasury therefor. The writ as prayed should issue.

McALISTER, J., concurs.