Territory of Arizona ex rel. Hawkins v. Wingfield

BARNES, J. This is an action for mandamus. During the years 1885 and 1886 the relator was the prohate judge of the county of Yavapai, in the territory of Arizona, and for said time was the county superintendent of public schools for said county. The defendant is now the duly-qualified chairman of the board of supervisors of said county of Yavapai. The Thirteenth legislative assembly of the territory of Arizona passed an act entitled “An act to establish a public school system, and to provide for the maintenance and supervision of public schools in the territory of Arizona,” which said act was approved March 12, 1885. Section 31 of said act provides, among other things, that the county superintendent of schools of the county 'of Yavapai shall have an annual salary of $600, payable quarterly out of the “School Fund” of said county, by a warrant drawn upon said fund in favor of such county superintendent, countersigned by the chairman of the board of supervisors of [307] said county. The said Thirteenth legislative assembly of Arizona also passed on the same day an act entitled “An act to create the office of county assessor, to make the county treasurer ex officio county tax collector, and prescribe the salaries and duties of certain county officers of the county of Yavapai.” Approved March 12, 1885. Section 13 of said last-mentioned act provides that the probate judge of the county of Yavapai shall receive to his own use as full compensation for all services rendered by him as judge of the probate court, ex officio county superintendent of public schools, and as clerk of the probate court, including all services rendered by deputies, the salary of $2,000, etc. Seeiton 19 of said last-mentioned act provides for the payment of such salary out of a fund created by said act known as the “General Salary Fund,” on warrants drawn by the board of supervisors upon such fund. These acts were passed by the same legislature, and were approved on the same day; and at the same time five acts relating to salaries of county officers were considered and passed, viz., one for each of the counties of Cochise, Mohave, Apache, Pima, Graham, and Yavapai. All these acts were approved March 12th, except Cochise and Mohave, which were approved on March 11th. Statutes passed on the same day, and to take effect at the same time, will all be assumed to have been enacted at the same time, and are to be construed as of one act. Such construction should be given, if possible, as shall leave all to stand. If this cannot be done, only so much is to be disregarded as cannot stand. Distinct affirmative propositions should stand as against mere negations or provisos. In this case, it is enacted that the county superintendent of schools shall have an annual salary of $600, payable out of the “School Fund.” This is a positive, affirmative enactment. It is also enacted that the probate judge shall receive, in full for all services as judge, ex officio superintendent of schools, and clerk, etc., a salary of $2,000, payable out of the “Salary Fund.” This is a positive, affirmative enactment. The two salaries are payable out of different funds.- If they be construed tó mean that the $2,000 only shall stand, it repeals the former, or, rather, destroys it. The salary of $600, and the provision providing for it out [308] of this school fund, falls. It is evident that it was intentional for the school fund to provide for the salary for its superintendent of schools. But to limit it to the $2,000 from the salary fund destroys that intention. There is but one way to construe these acts that both shall stand; that is, to hold that the probate judge shall receive a salary of $2,000, and the superintendent a salary of $600, as is provided, hut discard the limitation or provisio that the probate judge shall receive, as full compensation for all services as judge and superintendent of schools, etc. The acts recognized the fact that, by law, the judge is ex officio superintendent of schools: that he holds the offices and performs the duties of both; the compensation and salary is fixed for each, and the fund from which he is to be paid for each service is provided, The officer is entitled to the salary so appropriated, and, though the same person, he is entitled to both salaries. The courts are continually called upon to revise the results of careless and sometimes reckless legislation; to try to make consistent that which is inconsistent; to harmonize that which is full of discord. This they must do as best they can by known rules of construction. Red Rock v. Henry, 106 U. S. 596, 1 Sup. Ct. Rep. 434; United States v. Walker, 22 How. 299; Clay Co. v. Savings Soc., 104 U. S. 579; Fussel v. Gregg, 113 U. S. 550, 5 Sup. Ct. Rep. 631; Louisiana v. Taylor, 105 U. S. 454; Sedg. Const. St. 198, 209; Cain v. State, 20 Tex. 355. The prayer of the petitioner is granted. Let the writ issue. Wright, C. J., and Porter, J., concur.