Board of Regents of University of Arizona v. Sullivan

In Board of Regents of University of Arizona v. Sullivan, 45 Ariz. 245, 42 P.2d 619 (1935), the Legislature enacted the Educational Institutions Act of 1934 which authorized the Board to issue and sell bonds to any federal agency to improve and enlarge the University of Arizona and accept grants from any federal agency. The Attorney General refused to certify that the bonds conformed to our constitution and state laws. Specifically, the Attorney General thought the 1934 act was unconstitutional because it was passed during a special session; contained more than one subject; would create a state indebtedness; would raise revenues differently than as mandated by Article 11, Section 10; and would violate Article 11, Section 6. Id. at 249-50, 42 P.2d at 621. The Board filed a mandamus action in the supreme court to require the Attorney General to certify that the bonds met the requirements of the Arizona Constitution and state law. Id. at 247-48, 42 P.2d at 620-21. After the supreme court found that the 1934 act was constitutional, it stated that the revenue provisions of Article 11, Section 10 are not the exclusive methods for the maintenance, development, and improvement of universities. Id. at 262, 42 P.2d at 626. It found that: While the mandate found in the second sentence of section 10 imports that the educational institutions of the state must be maintained and adequately developed and improved by taxation, it does not make that resource the exclusive method. It simply means that it shall be the duty of the legislature to make whatever provision is necessary for the proper and efficient functioning of these institutions, but does not deny the legislature, or the institutions with the legislature's consent, the right to resort to other sources of revenue than that of state taxation for that purpose. If the educational institutions are limited to the federal revenues mentioned, and to appropriations to be met by taxation, then they may not charge tuition or any fees or rentals, or receive donations or gifts, or charge for dormitory or athletic accommodations, etc. To hold that such institutions are confined to the two sources of revenue mentioned would lead to absurd results and give to the language of section 10, . . . a meaning that was never intended. Id. at 262-63, 42 P.2d at 626. The Attorney General also argued that the indebtedness created by the bonds would violate the provisions of Article 11, Section 6 which, he argued, requires that the instruction "shall be entirely free." The court noted that the constitutional provision provides that the "institutions shall furnish instruction 'as nearly free as possible'" and that, absent an argument that "the fees, rentals, etc., are excessive or other than reasonable, or are not as nearly free as possible," the argument is self-defeating. Id. at 263, 42 P.2d at 626. Sullivan leaves us with two conclusions. First, the provision in Article 11, Section 6 that university instruction "shall be as nearly free as possible" does not mean that a university education will be free. It is not an inflexible mandate. Instead, the issue will always be whether the fees charged to attend an Arizona university "are excessive or other than reasonable" in light of the constitutional mandate. Second, Article 11, Section 10 provides three broad methods to fund the maintenance of the university system: (1) the sale or rental of lands that the federal government gave the state at statehood; (2) direct taxation; (3) "special appropriation as shall provide for the development and improvement" of the university system, which includes the constitutional authority of the Board to raise revenue by issuing bonds, or by setting tuition, fees, and rental rates. See also John D. Leshy, The Arizona State Constitution: A Reference Guide 253 (1993).