Austin v. Barrett

• Decision Date: 23 November 1932
• Docket Number: Civil 3274
• Citation: 16 P.2d 12,41 Ariz. 138
• Parties: A. G. AUSTIN and HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, and HUGH C. GILBERT and PACIFIC INDEMNITY COMPANY, a Corporation, Appellants, v. SAM BARRETT, Appellee
• Court: Arizona Supreme Court

16 P.2d 12

41 Ariz. 138

A. G. AUSTIN and HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, and HUGH C. GILBERT and PACIFIC INDEMNITY COMPANY, a Corporation, Appellants, v. SAM BARRETT, Appellee

Civil No. 3274

Supreme Court of Arizona

November 23, 1932

APPEAL from judgments of the Superior Court of the County of Maricopa. Henry C. Kelly, Judge. Judgments affirmed as modified.

Messrs Baker & Whitney and Mr. Lawrence L. Howe, for Appellants.

Messrs Flanigan & Fields, for Appellee.

OPINION

LOCKWOOD, J.

Sam Barrett, hereinafter called plaintiff, brought two separate suits under sections 790 and 791, Revised Code 1928, the one against Hugh C. Gilbert, then and for some time previously a member of the board of supervisors of Maricopa county, and his official bondsman, Pacific Indemnity Company, a corporation, and the other against A. G. Austin, also a member of such board of supervisors, and his official bondsman, Hartford Accident & Indemnity Company, a corporation. By stipulation of the parties, since the legal issues involved were identical, the cases were consolidated and tried together. Judgment was rendered in favor of plaintiff against defendant Gilbert and his bondsman in the sum of $484.40, and against Austin and his bondsman in the sum of $800.40, together with the statutory interest penalty, attorney's fees, and costs, and from said judgments this appeal has been taken.

The essential facts of the case are in no manner in dispute, and may be stated as follows: Gilbert and Austin were and are members of the board of supervisors of Maricopa county, the former residing near Glendale, in supervisorial district No. 2, and the latter in Chandler, which is in supervisorial district No. 1. The distance from Gilbert's residence to the office of the board of supervisors in Phoenix is 14 miles, and from Austin's residence to such office is 23 miles. During their incumbency of their offices, and before the beginning of this action, each of them had presented to the board of supervisors demands against Maricopa county for a large sum of money on the theory that they were entitled to mileage while traveling from their respective residences to the office of the board of supervisors in Phoenix for the purpose of attending official meetings of such board. The total amount allowed and paid to Austin on such claims was $2,800.80, and to Gilbert $1,805, and the suits involved herein were brought by plaintiff to recover the amounts so paid, on the ground that they were not legal charges against the county.

Defendants demurred to the greater portion of said claims for refund on the ground that they were barred by the statute of limitations, which demurrers were by the trial court sustained, except as to the amounts of $484.40 and $800.40, respectively, and the case was determined as to such last-named amounts on the question of whether as a matter of law supervisors are entitled to be paid mileage for the distance necessarily traveled by them to and from their residences to the place where the board of supervisors is required by law to hold its official meetings.

The first and principal rule to be followed, in determining whether a claim against a county is legal, is that the person making the claim must show some statute affirmatively authorizing it, either directly or by reasonable implication. County of Santa Cruz v. Barnes, 9 Ariz. 42, 76 P. 621. And the right of an officer to demand expenses incurred by him in the performance of his official duty is no exception to the rule. Mackenzie v. Douglas County, 81 Or. 442, 159 P. 625, 1033; Parsons v. Waukesha County, 83 Wis. 288, 53 N.W. 507. All other considerations are subordinate to these. Nor, indeed, is this disputed by defendants. It is their claim, however, that the Arizona statutes do authorize the allowance of such mileage, and in support thereof they cite the following sections of the Revised Code of 1928:

"§ 776. . . . The expense of maintaining the government consists of official salaries, fees and mileage, fees and mileage of jurors. . . ."

"§ 889. . . . The following are county charges: . . . The salaries of all county and precinct officers, their deputies and employees and the necessary expenses incurred by them in the conduct of their offices. . . . The contingent expenses necessarily incurred for the use and benefit of the county; every other sum directed by law to be raised for any county purpose or declared to be a county charge. . . ."

"§ 2803. Mileage and traveling expenses. Whenever mileage is allowed to a public officer, it shall be for each mile necessarily traveled in the discharge of his official duties, and shall be computed, unless otherwise provided, where public transportation is used, at the amount actually paid by the officer; if a private vehicle is necessarily used, such officer shall receive ten cents for each mile, to be estimated on the most direct public route. . . ."

It is admitted that there is no provision of our statute which specifically authorizes supervisors to be paid either mileage or their actual expenses while traveling in the discharge of their duties, much less when they are going from their places of residence to the place fixed by law for their official meetings. But it is claimed that the sections of the Code above quoted by implication authorize such payment. The question then is: Do our statutes reasonably imply that supervisors should be allowed mileage for travel to and from their homes to the place of their official meetings?

In support of the claim that they do, defendants urge that supervisors by law are chosen from three separate districts in each county, and that they must be residents of the district which they represent, both at the time of the election and during all their term of office. They point out that in large counties, such as we have in Arizona, some at least of the districts in each county are so situated that supervisors residing therein would necessarily have to travel considerable distances to reach the county seat, and that it is unfair that they should be made to bear this extra expense, while supervisors residing in a district which contains the county seat would be put to no such cost.

They also contend that the Attorney General of Arizona in 1915 issued an opinion holding that expenses of the nature involved in this suit were a proper legal county charge, and that it has been the general custom of the various boards of supervisors in Arizona ever since that time, and following such opinion, to pay charges of this nature, and that such construction placed for many years by the administrative authorities upon the statute is practically binding upon the courts, particularly when the legislature has since such opinion, and after such custom had continued for many years, revised the entire statutory law of the state without changing the provisions upon which such opinion was based.

The rule of statutory construction that an unjust or absurd meaning will not be given to a statute unless it conclusively appears from the language thereof that such was the intent of the legislature is usually applied in cases where the failure to follow it would result in imposing an unjust burden upon a party against his will, and in such cases, if the language of the statute is ambiguous, the court will hesitate before giving an interpretation which will work an injustice upon the citizen. We think, however, that the facts of the case at bar do not call for the application of the rule, even if the intent of the statute were not entirely clear.

The universal rule is that he who accepts a public office takes it, not only with the rights, but the burdens attached thereto by law, and he may not complain because the burden is greater than that imposed on other officers. County of Cook v. Wren, 43 Ill.App. 388; Albright v. County of Bedford, 106 Pa. 582.

When supervisors are elected they know their respective places of residence and that they will be required to attend at the county seat to discharge their official duties. They are not obliged to seek for the office, nor to accept it if tendered them, and such being the case, if they accept it they take it with the necessary inconveniences and inequalities attaching thereto, and may not be heard to say that the law is unjust merely because it results in unequal compensation for their services.

The point made in regard to the custom of administrative officers being of great weight in determining the meaning of a statute is more serious. That such is the general rule cannot be doubted. Van Veen County of Graham, 13 Ariz. 167, 108 P. 252; Avery v. Pima County, 7 Ariz. 26, 60 P. 702. This is especially true when, after a long-continued interpretation, the legislature re-enacts the statute without changing its language. Copper Queen etc. Min. Co. v. Territorial Board, 9 Ariz. 383, 84 P. 511; United States v. Finnell, 185 U.S. 236, 22 S.Ct. 633, 46 L.Ed. 890. But if the intent and purpose of the act be clear, no custom can prevail against the positive and definite terms of the law, and the courts should not follow an administrative construction which is clearly erroneous, even though continued for many years. Louisville & Nashville R. Co. v. United States, 282 U.S. 741, 51 S.Ct. 297, 75 L.Ed. 672; United States v. Finnell, supra; In re Manhattan Savings Institution, 82 N.Y. 142; Van Dyke v. City of Milwaukee, 159 Wis. 460, 146 N.W. 812, 150 N. W. 509; People v. Sergel, 269 Ill. 619, 110 N.E. 124.

Let us therefore determine whether the meaning of the law is indeed doubtful as contended by defendant, or clear as claimed by plaintiff. Since there is no single statute which specifically grants such mileage, we must consider together all the various sections...