STATE of Arizona, Petitioner, Harold J. Cardwell, Warden, Real Party in Interest, v. Hon. Anthony T. DEDDENS, Judge of the Superior Court of the State of Arizona in and for the County of Cochise, Respondent, and Robert MacDonald, Intervenor.
No. 11885-PR.
Supreme Court of Arizona, In Banc.
Nov. 25, 1975.
542 P.2d 1124
It is conceded for purposes of argument that the property executed upon in this case was the sole and separate property of the appellant, Dura Majewski. It is also conceded for the purposes of argument in this case, that Dura Majewski‘s separate estate did not benefit from either the promissory note or the agreement which she signed.
Appellant contends that since the house and motel were the separate property of the appellant they are not subject to execution for what is contended by appellant to be the separate debt of the former husband. We believe that appellant confuses the issue by injecting the question of community property. When a person signs an agreement or a note, that person, absent a valid defense, becomes individually responsible for obligations created by the agreement or the repayment of that note. We have stated:
“There is some question as to whether the $5,000 note and mortgage signed by the husband and wife was a community debt or the separate debt of the husband, but we think that it makes no difference since, when the wife signed the note jointly with her husband, she became obligated equally with him for its payment. It might be that if it were a community debt, it would be a first charge against the community property but, if the community were unable to pay the note, then the separate property of the signers would be obligated to pay it.” Brown v. Brown, 58 Ariz. 333, 337, 119 P.2d 938, 940 (1941).
Appellant cites numerous cases in Arizona where we and the Court of Appeals have held that an obligation signed by the husband individually is not a liability against the separate property of the wife or even the community property. Cosper v. Valley Bank, 28 Ariz. 373, 237 P. 175 (1925); Payne v. Williams, 47 Ariz. 396, 56 P.2d 186 (1936); Kreiss v. Shipp, 14 Ariz.App. 113, 481 P.2d 284 (1971); Union Bank v. Pfeffer, 18 Ariz.App. 386, 502 P. 2d 535 (1973). We do not believe these and other cases cited are applicable to the facts in this case.
The appellant-wife signed the note and the agreement with her husband. They then became jointly and severally liable and both the community property as well as the separate property of the husband and wife may be reached in satisfaction of the debt. Brown v. Brown, supra; Valley National Bank v. Fulton, 77 Ariz. 11, 266 P.2d 397 (1954).
Orders denying the motions to quash general executions are affirmed.
HAYS, and HOLOHAN, JJ., concurring.
Bruce E. Babbitt, Atty. Gen., by Frank T. Galati, Asst. Atty. Gen., Phoenix, for petitioner.
Richard J. Riley, Cochise County Atty., by Beverly H. Jenney, Deputy County Atty., Bisbee, for respondent.
Verity & Smith by Bruce F. Rinaldi, Tucson, for intervenor.
STRUCKMEYER, Vice Chief Justice.
The State of Arizona, through the Attorney General, filed an original petition for special action in the Court of Appeals, requesting that the Superior Court of Cochise County be directed to vacate an order holding the Warden of the Arizona State Prison in contempt. Robert MacDonald, an inmate in the state prison intervened. The Court of Appeals, without an opinion, denied any relief and a petition for review was filed by MacDonald. We took jurisdiction to set at rest the constitutional issue raised by petitioner. Petitioner‘s prayer for relief is denied.
The facts are not in dispute. Robert MacDonald was convicted in the Superior
At the time MacDonald was sentenced, the Board of Pardons and Paroles was following an Attorney General Opinion (No. 63-65) to the effect that the good behavior deduction of
The Cochise County Attorney filed a writ of mandamus in superior court, challenging the legality of MacDonald‘s release. It was bottomed on the language of
“A. Every person who * * * sells * * * any marijuana shall be punished by imprisonment in the state prison from five years to life and shall not be eligible for release upon completion of sentence, or on parole, or on any other
basis until he has served not less than three years.”
Following a hearing held October 16, 1974, respondent court held Harold J. Cardwell, Warden of the State Prison, in contempt for releasing MacDonald. Imposition of sentence was suspended if Cardwell purged himself of contempt by returning MacDonald to custody.
Cardwell did purge himself of contempt by returning MacDonald to custody, and therefore there is no issue presented as to the jurisdiction of the lower court to find Cardwell in contempt in a procedure which originated in mandamus.
The Attorney General filed this special action in the Court of Appeals, contending that Cardwell acted properly in releasing MacDonald because his Opinion 73-13 could not be retroactively applied to MacDonald. In addition, he argues that since the Warden released MacDonald in the exercise of a good faith reliance upon legal advice, it was error to hold him in contempt. We hold that this latter argument is totally without merit.
The Warden‘s duty is set out in
“A. The superintendent shall hold in custody all persons sentenced to the state prison under the law and shall hold such persons for the term directed by the court or for such other period of time as may be ordered by the board of pardons and paroles, subject to law.”
Previously, contempt charges have been upheld under circumstances similar to the instant case. State v. Superior Court, 30 Ariz. 332, 246 P. 1033 (1926); In re Wright, 36 Ariz. 8, 281 P. 944 (1929). We said, for example in State v. Superior Court, supra:
“The superintendent‘s duty was to observe and enforce the court‘s mandate, and, when he violated its terms by releasing the prisoner before the minimum sentence was served, his act was contemptuous. The order of release had no sanction in law, and was not a justification, though in following it the superintendent of the prison was undoubtedly obeying the law as he understood it, and was in no sense guilty of any intentional violation of it. He was merely following the construction placed upon it by the Governor, the board of pardons and paroles, and himself, since the policy of paroling prisoners had become a part of the statutes of the state. But the motives of the board of pardons and paroles, however beneficent and well intentioned, in ordering or recommending the prisoner‘s release could not supplant the plain letter of the law.
It is for the Legislature to say when the power of paroling prisoners may be exercised, and it is the duty of the courts and those ministerial officers charged with executing their mandates to follow the law as it is written, and not as they may think it should be written.” 30 Ariz. at 340, 246 P. at 1036.
The Warden of the State Prison, cannot avoid contempt of court merely because he believes he was obeying the law as he understood it.
MacDonald urges that the law in force at the time of his conviction was the Attorney General Opinion No. 63-35. We reject this idea. The Attorney General‘s opinions are advisory only and are not binding on courts of law. They are not a legal determination of what the law is at any certain time.
The Attorney General agrees that since the publication of his Opinion No. 73-13, Opinion No. 63-35 is no longer applicable, but MacDonald contends that Opinion No. 73-13 misinterprets the manner in which the mandatory minimum sentences provided in
In Opinion No. 63-35, the Attorney General compared the punishment provisions of
In determining the proper construction to be given a statute we look to the intent of the legislature. Arnold Const. Co., Inc. v. Arizona Board of Regents, 109 Ariz. 495, 512 P.2d 1229 (1973). This Court will consider the context of the statute, the language used, the subject matter, the effects and consequences, and the spirit and purpose of the law. Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1974). Statutes are to be given, whenever possible, such an effect that no clause, sentence or word is rendered superfluous, void, contradictory or insignificant. State v. Cassius, 110 Ariz. 485, 520 P.2d 1109 (1974); State v. Edwards, 103 Ariz. 487, 446 P.2d 1 (1968). The interpretation of
The conclusion we have reached concerning the questioned statutes is not novel. Several cases, decided before MacDonald‘s conviction, reached a similar conclusion. See State v. Ross, 108 Ariz. 245, 495 P.2d 841 (1972); State v. Espinosa, 101 Ariz. 474, 421 P.2d 322 (1966); State v. Smith, 13 Ariz.App. 507, 478 P.2d 122 (1970); State v. Dominguez, 16 Ariz.App. 592, 494 P.2d 1337 (1972). And in State v. Rice, 110 Ariz. 210, 516 P.2d 1222 (1973), decided before MacDonald‘s release, in a prosecution for child molesting and lewd and lascivious acts,
“Unlike the provisions of the Narcotic Drug Act, there is nothing in the statutes in question which would suggest that the Legislature intended to deprive a defendant of the special statutory credits provided in the foregoing sections.” 110 Ariz. at 213, 516 P.2d at 1225.
We think it clear that the legislature intended that those persons convicted under
The Attorney General and MacDonald urge that nevertheless the parole restrictions cannot be applied to MacDonald or to others convicted under like circumstances prior to the publication of Opinion No. 73-13. It is argued that to do so would violate the ex post facto prohibition of
Aside from the vacation of the judgment of the District Court, see Fitzharris v. Love, 409 U.S. 1100, 93 S.Ct. 896, 34 L. Ed.2d 682 (1973), this case is readily distinguishable on its facts. The Circuit Court in Love noted that the California courts had not considered the question. It said that “the interpretation of the relationship between the statutes placed upon them by the administrative agency charged with their enforcement has the force and effect of law.” To the contrary in this state, both this Court and the Court of Appeals have addressed their attention to the question prior to MacDonald‘s conviction and construed the words “shall not be eli-gible for release upon completion of sen-
Second, the statement in Love that a “new administrative interpretation which subjects the prisoner already sentenced to more severe punishment has the same effect as a new statute lengthening his present term * * * or a new court decision making what was lawful when done a crime * * *; each ‘alters the situation of the accused to his disadvantage * * *’ and each is prohibited by the Constitution” has no application to this case. MacDonald was not subjected to a more severe punishment, since prior decisions have held that the statutory restrictions on release must be followed. There is no legal basis for MacDonald‘s claim that he was surprised by the action of the respondent court in requiring him to serve three years in prison.
MacDonald finally contends that the application of Attorney General Opinion No. 73-13 to him denies him equal protection of the law. His equal protection argument is, in effect, that if we allow the respondent court‘s order to stand, it will have the effect of selectively applying the proper interpretation of
Selective enforcement of laws is not, in itself, a federal constitutional violation. United States v. Brookshire, 514 F.2d 786 (10th Cir. 1975). Only when the selection is based upon an unjustifiable standard such as race, religion or other arbitrary classification is there a denial of equal protection. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); United States v. Bell, 165 U.S. App.D.C. 146, 506 F.2d 207 (1974).
We think the foregoing is sufficient to answer the more serious questions presented. The petitioner‘s request for relief is denied.
CAMERON, C. J., and HOLOHAN and GORDON, JJ., concur.
HAYS, Justice (specially concurring):
I concur in the result reached by the majority opinion, but I am concerned with language which implies that the warden of the State Prison can be held in contempt of court even though he was obeying the law as interpreted by the Attorney General, his legal counsel.
“An adjudication of contempt must be based on specific facts found which show knowledge of the order, ability to comply with it, and contumacious conduct on the part of the accused amounting to wilful violation.” 105 Ariz. at 46, 459 P.2d at 306.
Obviously the alleged contempt here is not criminal and therefore
With the foregoing reservation, I concur.