Ward v. Frohmiller , 55 Ariz. 202 ( 1940 )

I concur in the conclusion announced by Justice LOCKWOOD. There is no question in my mind but that it was the duty of the auditor under the provisions of section 28, Revised Code of 1928, to draw warrants for the claims presented by the petitioner, R.A. Ward.

That section provides that when a claim presented to the auditor is not for an actual public purpose connected with the activities of the office, board, commission or department where the claim originated, the auditor shall refuse to draw a warrant, except for such amount of the claim as appears to be for a public purpose. It then requires the auditor to state his reasons for rejection to the originating officer and provides that a warrant shall not be drawn therefor until a new claim fully itemized, etc., is presented to the auditor properly verified by the person making the expenditure and again approved for audit and warrant by the officer, board, commission or department which in the first instance audited the rejected claim. When this situation presents itself the auditor's power regarding the claim is described in the following language:

"If such verified claim is not filed, or if re-filed, if it does not then appear that a public purpose is in fact involved respecting the claim thereof, the auditor shall have power to again reject the claim, and report the fact of such rejection to the governor, and no warrant shall be drawn thereon, unless the governor specifically approves the claim in whole or in part."

The record discloses that the claims in question were rejected by the auditor when first presented to her, for the reason that they were not, in her opinion, for a public purpose, and that new claims for the same items were presented to her a second time, whereupon she again rejected them for the same reason. She then reported the fact of her rejection to the governor who, believing them to be for a public purpose, approved them in full and reported his action to the auditor, but, notwithstanding the approval of the governor, she declined to draw warrants in payment of them. Evidently the auditor felt that even though the governor believed the claims were for a public purpose and approved them, they were not such in fact, and, hence, that it was still her duty to decline to draw the warrants. In this I think the auditor took a position the statute does not uphold, and this is true whether the claims were or were not in fact for a public purpose.

It is plain that when the auditor rejects a claim a second time she is required to report the fact of her rejection to the governor and when this is done that "no warrant shall be drawn thereon, unless the governor specifically approves the claim in whole or in part." This means, if I understand its import, that if the governor does approve the claim a warrant shall be drawn in payment of it. To my mind the meaning of this expression would have been no clearer if the legislature had added to it the following or similar language, "in which event a warrant in payment of the claim shall be drawn." If this is not true, there would be no purpose whatever in requiring the auditor to report her rejection to the governor, for it would mean that the legislature has compelled the auditor to perform a wholly useless act.

It is clear that the law-making body intended to confer upon the chief executive the power to determine whether claims twice rejected by the auditor are for a public purpose and, if he concludes they are and approves them, to make that approval effective by requiring the auditor to draw a warrant in payment of them, provided there are funds for that purpose, or in case there are none, to issue a certificate of indebtedness. After approval by the governor the duty resting upon the auditor relative to the claims is purely ministerial. It is no longer within her discretion to reject them or to decline to draw warrants in payment of them. In Winsor v. Hunt, 29 Ariz. 504,243 P. 407, it was held that when the auditor approves a claim the governor's duty to countersign it is ministerial and can be compelled by mandamus, so when the governor approves a claim twice rejected by the auditor her duty to draw a warrant in payment of it is likewise ministerial and can be compelled in the same manner.

The legislature evidently intended to place the responsibility for the payment of such claims squarely upon the shoulders of the governor and relieve the auditor completely of it. The requirement that that officer shall report her second rejection of a claim to the governor gives the claimant, in effect, an appeal from the decision of the auditor to the chief executive, the officer upon whom the law has placed the final decision as to the validity of twice-rejected claims. To hold that the auditor may or may not, as she thinks proper, draw warrants in payment of such claims would, practically speaking, be the same as holding that the superior court may use discretion in carrying out the mandate of the Supreme Court in any case in which it has reversed the decision of that court. Under this procedure if some interested party should, after issuance, attempt to enjoin the treasurer from paying the warrant or should, following its payment, seek to recover the money from the person to whom it had been paid or from the head of the department who had approved the claim, upon the theory that it was not for a public purpose, as would be his right, and succeed, no blame whatever would rest upon the auditor for paying the claim, even though it should be later held by the court that it was not for a public purpose.