Austin v. Campbell

• Decision Date: 11 April 1962
• Docket Number: No. 6691,6691
• Citation: Austin v. Campbell, 91 Ariz. 195, 370 P.2d 769 (Ariz. 1962)
• Parties: Carl AUSTIN et al., Appellants, v. David H. CAMPBELL, Appellee.
• Court: Arizona Supreme Court

Page 769

370 P.2d 769

91 Ariz. 195

Carl AUSTIN et al., Appellants, v. David H. CAMPBELL, Appellee.

No. 6691.

Supreme Court of Arizona, In Banc.

April 11, 1962.

Robert Morrison, a former Atty. Gen., Wade Church, former Atty. Gen., and Leslie C. Hardy, his Chief Asst. Atty. Gen., Robert W. Pickrell, present Atty. Gen., for appellant Jewel W. Jordan, State Auditor, State of Arizona.

C. A. Muecke and Martin F. Keil, Phoenix, for appellants Carl Austin, C. J. Carreon, William J. Harkness, Neales Kennedy, Patrick W. O'Reilly, Robert A. Petrie, Del Rogers a. k. a. Delbert Delfino, Harry Ruppelius and Robert E. Wilson.

Stephen S. Gorey, Phoenix, for appellant Norman Lee.

W. L. Farringer, Phoenix, for appellant William Younger Wood.

Stockton & Aldrich, Phoenix, for appellant J. P. Stump.

William H. Rehnquist, Phoenix, for appellee David H. Campbell.

UDALL, Vice Chief Justice.

This is a taxpayer's action to recover for the State of Arizona certain expense reimbursements audited, paid out and received pursuant to a statute later held unconstitutional by this court in Giss v. Jordan, 82 Ariz. 152, 309 P.2d 779 (1957). From a summary judgment for plaintiff Campbell, defendants Jewel W Jordan, auditor for the State of Arizona, and thirteen members of the Twenty-second Legislature have appealed.

Since 1947 Arizona legislators have been reimbursed for necessary expenses incurred during sessions of the legislature. ¹ But prior to 1956 amounts so expended by a legislator were restored to him only after compliance with what is now A.R.S. § 35-181 which provides in pertinent part:

'A. All claims against the state for obligations authorized, required or permitted to be incurred by any state officer or agency, shall be paid only in the following manner:

'The claimant shall present an itemized claim, sworn to by him and approved by the head official of each office or state agency under which the obligation was incurred * * *. The claim shall then be presented to the state auditor and, if approved, the auditor shall draw his warrant therefor on the state treasurer, who shall pay it when countersigned by the governor but only from the appropriation made therefor. * * *.' ² (Emphasis added.)

On January 4, 1956, however, the Governor approved an amendment to the reimbursement statute (A.R.S. § 41-1103) subsections D and E of which read as follows

'D. Reimbursement of expenditures made under the provisions of subsections A, B and C of this section shall not be subject to the provisions of § 35-181.

'E. All payments provided for in this section shall be paid upon approval of the president of the senate or the speaker of the house of representatives from funds appropriated for the house of the legislature over which he presides.' ³ (Emphasis added.)

On February 27, 1956 plaintiff Campbell (who was also a member of the Twenty-second Legislature) wrote to the Attorney General and asked, inter alia:

'2. What penalty could be imposed on a member of the legislature from Maricopa County when said member resides at his usual place of residence but draws $17.00 per day subsistence instead of $12.00 per day as set forth in Section 41-1103, A-1?' ⁴

More correspondent between plaintiff Campbell and the Attorney General followed. In one letter the Attorney General admitted having seen a list of the legislators later named defendants in this action. Finally, on May 26, 1956 plaintiff wrote to and requested legal action by the Attorney General as follows:

'Under the provisions of Sections 35-211, 35-212 and 35-213 Arizona Revised Statutes, you are hereby requested to bring action against certain members of the Maricopa County delegation to the House of Representatives, who have received subsistence payments in excess of those authorized by Section 41-1103.

'The names of these members were given yur office in February, 1956. They were also publicly read into the Journal of the House for permanent record on February 22, 1956. Warrant numbers, dates, and the amounts in question are on file in the office of the State Auditor. Receipts, as required by law prior to January 6, 1956, should also be on file in the State Auditor's office.'

The Attorney General did not act. Consequently, on August 24, 1956 plaintiff Campbell instituted his taxpayer's action pursuant to A.R.S. § 35-213. ⁵ The complaint is in two counts the first of which alleges overpayments in varying amounts to the several legislator-defendants all of whom were residents of Maricopa County during the times in question. The overpayments sought to be recovered in Count I represent to difference between the maximum daily expense allowance of $17 permitted a legislator 'not residing at his usual place of residence' during a session and the $12 daily ceiling imposed upon one 'residing at his usual place of residence.' (See A.R.S. § 41-1103, subd. A, supra note 4.) Thus, in Count I each of the defendant-legislators is alleged to have received excessive expense reimbursement in an amount computed by multiplying $5 times the number of days for which he was reimbursed at the $17 rate.

Count II then alleges that all of the expense monies paid these defendants were improperly paid and received in that 'none of said defendants * * * complied with the provisions of 35-181, A.R.S.1956, in submitting their subsistence claims described in Count I to defendant Jordan.'

The complaint concludes by seeking recovery from each legislator of the differing amounts received (ranging from $1,292 to $1,632 each) and the total of these amounts from defendant Jordan as the State Auditor. ⁶ Plaintiff also asks for the statutory 20% penalty, ⁷ interest, costs and attorney's fees. ⁸

Before the action came on for trial this court's decision in Giss v. Jordan, 82 Ariz. 152, 309 P.2d 779, was announced on April 6, 1957. It was there held that subsections D and E of A.R.S. § 41-1103 were invalid in that they attempted to transfer to the legislative branch a function (auditing claims against the state) constitutionally delegated to the executive branch of the government. Accordingly, an alternative writ of mandamus whereby members of the legislature sought to compel the State Auditor to approve expense claims submitted in accordance with A.R.S. § 41-1103, subds. D and E was quashed. ⁹

After the Giss decision plaintiff moved for, and on January 31, 1958 was granted, summary judgment on Count II of the complaint. But before the formal judgment for plaintiff was entered on March 20, 1958 the legislature quickly amended A.R.S. § 35-181 by adding the following two subsections:

'D. Any claim made and approved contrary to subsection A, in the absence of fraud or bad faith on the part of the claimant or disbursing officer, may be amended at any time to conform to the requirements of subsection A and upon amendment such claim shall be exempt from the provisions of § 35-211.

'E. Any public funds paid or received pursuant to law, in the absence of fraud or bad faith in the disbursement or receipt of such funds prior to such law being declared unconstitutional by the supreme court of the state of Arizona, shall be exempt from the provisions of § 35-211. As amended Laws 1958, ch. 7, § 1.' ^9a

On appeal from the judgment of March 20, 1958 defendant-legislators and the auditor contend:

(1) that the Superior Court had no jurisdiction to entertain the suit because of the insufficiency of plaintiff Campbell's 'request * * * in writing' that the Attorney General institute the action;

(2) that one is not liable in a taxpayer's action for receipt or payment of state monies in 'good faith' reliance upon a statute later held unconstitutional; and that in any event

(3) they are protected by the 'curative' amendment of March 20, 1958 set out above.

I Sufficiency of Taxpayer's Written Request

Section 35-213, subd. A ¹⁰ requires that a taxpayer first 'request * * * in writing' action by the attorney general before individually instituting suit in behalf of the state to recover monies illegally paid or received. Plaintiff admits failing to make any such request for legal action against the auditor. Nevertheless plaintiff asserts that any monies illegally received were illegally paid and that therefore the attorney general was under a duty to sue the auditor whether asked to do so or not.

This contention, however, is untenable for two reasons. (1) The auditor is not, ipso facto, liable on her bond whenever it is shown that someone has wrongfully submitted a claim which she thereafter approves. Cf., Proctor v. Hunt, 43 Ariz. 198, 29 P.2d 1058 (1934). (2) The written 'request' specified by A.R.S. § 35-213, subd. A is a jurisdictional requirement. Annot., 124 A.L.R. 585, 602-604 (1940). Accordingly, the Superior Court exceeded its jurisdiction in entertaining and entering judgment on plaintiff's claim against the auditor in the instant case. ¹¹

The case is different, however, respecting the sufficiency of plaintiff's request that the attorney general institute suit against the defendant-legislators. For although not mentioned in plaintiff's letter of May 26, 1956, the names of these men were admittedly known by the attorney general. Moreover the May 26th letter referred the attorney general to a listing of the pertinent names in the House journal. And the same letter referred the attorney general to the auditor's files for the necessary supporting receipts, warrant copies, etc.

This information, coupled with the previous correspondence between plaintiff and the attorney general, was sufficient to inform the latter that he was being asked to recover unauthorized expense reimbursements from the legislators here appealing. The important thing in such cases is that the attorney general receive actual notice and details of the particular wrongs charged and the names of the persons who allegedly committed them. In construing a similar statute the Oklahoma Supreme Court observed that:

'Fairness and justice require that such...