Barry v. Phoenix Union High School, Dist. of Maricopa County

Decision Date20 September 1948
Docket Number5094
Citation67 Ariz. 384,197 P.2d 533
CourtArizona Supreme Court

Appeal from Superior Court, Maricopa County; Walter J. Thalheimer Judge.

Mandamus proceeding by Phoenix Union High School, District of Maricopa County, Arizona, a body politic, against John H. Barry, as county school superintendent of Maricopa County, Arizona, to compel respondent to draw a warrant upon the county treasurer against the district school fund for partial payment for equipmeint for a school cafeteria. From the judgment respondent appeals.

Judgment affirmed.

Kramer Morrison, Roche & Perry, of Phoenix, for appellant.

Francis J. Donofrio, County Atty., Fred C. Struckmeyer, Jr., Deputy County Atty., both of Phoenix, for appellee.

Udall, Justice. Stanford, C. J., and LaPrade, J., concur.


Udall, Justice.

Appellee, Phoenix Union High School District, (petitioner in the court below) sought and obtained a peremptory writ of mandamus directing appellant (respondent) John H. Barry as County School Superintendent of Maricopa County to draw a warrant upon the County Treasurer of such county against the school fund of the district in the sum of $ 10,638.45, payable to Arizona Hardware Company, in partial payment of equipment for the school cafeteria. (The parties will be hereinafter referred to as they were in the lower court.)

Respondent in defense of his refusal to issue the warrant challenged the right of petitioner to bring the action, and by his answer set forth other defenses hereinafter stated. Judgment having gone against him, after a trial on the merits, this appeal followed.

The respondent in his brief urges that the trial court erred in directing a peremptory writ of mandamus against him and in rendering judgment in favor of petitioner, because it appears upon the face of the petition and from the evidence that (a) petitioner is not the party beneficially interested in the action, the real party in interest being the Arizona Hardware Company, a private corporation; (b) that this proposed expenditure was not included within petitioner's high school budget as is required by law; (c) the petitioner does not operate the cafeteria, or lunch room for which the equipment in question was purchased but, without authority of law, rents the same to a voluntary unincorporated association of high school students.

We shall consider these propositions in the above order. The first objection, which evidently is the assignment principally relied upon, raises a procedural question as to the form of action, while the other two go to its substance.

Section 28-201, A.C.A.1939, reads in part as follows: "The writ of mandamus may be issued by the supreme or superior court on the verified complaint of the party beneficially interested * * *."

The respondent contends that a school district is not the proper party to obtain mandamus compelling the payment of its funds to one of its creditors; he urges that the creditor and not the district should have brought the action. In support of this position we are cited to a score of cases, from this jurisdiction where creditors have brought mandamus actions against the State Auditor, for example see Clark v. Frohmiller, 53 Ariz. 286, 88 P.2d 542; Earhart v. Frohmiller, 65 Ariz. 221, 178 P.2d 436.

While generally in Arizona this may have been the practice, it does not necessarily follow that under all circumstances the creditor, and he alone, may bring such an action. In fact in the case of State ex rel. Colorado River Commission v. Frohmiller, 46 Ariz. 413, 52 P.2d 483 (which was a mandamus action by the Commission to enforce payment for services rendered by its attorney) the identical procedural question here raised was presented but was left undetermined as the court proceeded to dispose of the matter then before it upon its merits. We see no reason to longer side step the issue although we do recognize the difficulty in laying down any overall general rule in this field where under varied statutes, so many conflicting decisions are to be found. See Annotation-Mandamus-Proper Relators 113 A.L.R. 589.

Basically we must determine whether the petitioner is a "party beneficially interested" Sec. 28-201, supra. This phrase when used in a statute such as this will not receive a close construction but must be applied liberally to promote the ends of justice. Semones v. Needles, 137 Iowa 177, 114 N.W. 904, 906, 14 L.R.A.,N.S., 1156, 15 Ann.Cas. 1012; and Nelson v. Ecklund, 68 N.D. 724, 283 N.W. 273, 275, from which we quote: "It is not necessary for the applicant to show that the decisions sought to be reviewed enhanced his rights, increased his property, or was productive of good to him. One is beneficially interested in a proceeding if one has a special right in the matter involved so that the decision affects it even adversely for one has a right to have the right protected. * * *"

We believe that the correct rule to apply, to a situation as is here presented, is stated in 55 C.J.S., Mandamus, § 45, p. 75: "Public officers or boards of officers may maintain proceedings in mandamus to compel other officers to perform ministerial acts which come within the scope of their supervision or which are necessary to be performed in order to enable such officer or board to perform its own duty. * * *"

See also 35 Am.Jur., mandamus, sections 320 and 322; and for late cases squarely in point see: State ex rel. Board of Education v. Cavendish, 81 W.Va. 266, 94 S.E. 149; City of Roseville v. Tulley, 55 Cal.App.2d 601, 131 P.2d 395. Board of Social Welfare v. Los Angeles County, 27 Cal.2d 98, 162 P.2d 627; State ex rel Norris v. Chancey, 129 Fla. 194, 176 So. 78, 113 A.L.R. 576. For cases to the contrary, which are chiefly relied upon by respondent, see: Borough of Emerson v. Pascarella, 118 N.J.L. 469, 193 A. 539; Portland Stone-Ware Co. v. Taylor, 17 R.I. 33, 19 A. 1086; State ex rel. Starrett v. James, 14 Wash. 82, 44 P. 116; Wiecking v. State ex rel. Coachman, 66 Fla. 49, 62 So. 898; Pennock v. State ex rel. Hood, 61 Fla. 383, 54 So. 1004....

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12 cases
  • Board of Regents of University and State Colleges v. Frohmiller, 5229
    • United States
    • Supreme Court of Arizona
    • 1 Agosto 1949
    ......Kelly of Yuma County,. was called to sit in his stead. Stanford, J., ... is without merit. In Barry v. Phoenix Union High. School, 1948, 67 Ariz. ... law." And in Maricopa County Municipal Water. Conservation Dist. No. 1 ......
  • Robert Schalkenbach Foundation v. Lincoln Foundation, Inc.
    • United States
    • Court of Appeals of Arizona
    • 17 Junio 2004
    ...promote the ends of justice." Armer v.Super. Ct., 112 Ariz. 478, 480, 543 P.2d 1107, 1109 (1975) (citing Barry v. Phoenix Union High Sch., 67 Ariz. 384, 387, 197 P.2d 533, 534 (1948)). However, we still determine that the statutory language requires us to analyze if the party is beneficiall......
  • Ponderosa Fire Dist. v. Coconino Cnty.
    • United States
    • Court of Appeals of Arizona
    • 28 Agosto 2014
    ...(1998). The term “party beneficially interested” is “applied liberally to promote the ends of justice.” Barry v. Phx. Union High School, 67 Ariz. 384, 387, 197 P.2d 533, 534 (1948); see Armer v. Superior Court, 112 Ariz. 478, 480, 543 P.2d 1107, 1109 (1975). ¶ 19 An action for mandamus “doe......
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    • United States
    • Court of Appeals of Arizona
    • 28 Agosto 2014
    ...(1998). The term “party beneficially interested” is “applied liberally to promote the ends of justice.” Barry v. Phx. Union High School, 67 Ariz. 384, 387, 197 P.2d 533, 534 (1948) ; see Armer v. Superior Court, 112 Ariz. 478, 480, 543 P.2d 1107, 1109 (1975). ¶ 19 An action for mandamus “do......
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