Batterton v. Pima County

• Decision Date: 13 November 1928
• Docket Number: Civil 2718
• Parties: HARRY R. BATTERTON, OSCAR C. COLE, STEVE ROEMER, J. G. COMPTON, FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Corporation, and NATIONAL SURETY COMPANY, a Corporation, Appellants, v. PIMA COUNTY, a Municipal Corporation, Appellee
• Court: Arizona Supreme Court

271 P. 720

34 Ariz. 347

HARRY R. BATTERTON, OSCAR C. COLE, STEVE ROEMER, J. G. COMPTON, FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Corporation, and NATIONAL SURETY COMPANY, a Corporation, Appellants, v. PIMA COUNTY, a Municipal Corporation, Appellee

Civil No. 2718

Supreme Court of Arizona

November 13, 1928

APPEAL from a judgment of the Superior Court of the County of Pima. Fred L. Ingraham, Judge. Judgment reversed and cause remanded with instructions.

Messrs Kingan & Darnell, Mr. John L. Van Buskirk, Mrs. Dorothy Sargent, Mr. J. L. B. Alexander, Mr. Robert McMurchie and Messrs. Stockton & Perry, for Appellants.

Mr Louis R. Kempf, County Attorney, and Mr. Milton M. Cohan Assistant County Attorney (Messrs. Curley & Pattee, of Counsel), for Appellee.

OPINION

LOCKWOOD, J.

The Pima county courthouse was erected in the year 1882, when the population of that county was only about twenty per cent of what it is now. As a natural result of the passage of years and the growth of population the county business has greatly outgrown the accommodations provided and the building itself has deteriorated to such an extent that it is and has been for years universally admitted that it was only a question of time as to when it would be imperative that a larger and better courthouse and jail be erected.

The present courthouse is situated on the south half of block 192 in the city of Tucson, and, some years ago, realizing the impending necessity for a new building, and that the land owned at that time would be inadequate for the required structure, the then board of supervisors purchased a strip of ground in the same block immediately north of the property owned by the county. In 1926 Steve Roemer, Oscar C. Cole and J. G. Compton, hereinafter called the supervisors, composed the board of supervisors of Pima county. On June 7th of that year one R. G. Brady, a realtor of Tucson, appeared before the board and submitted in writing an offer to sell the county all that part of block 192 not then owned by it for $58,000, some $7,000 to be paid by the assumption of various mortgages and the balance in cash. This property belonged to a number of persons, from all of whom Brady had secured options or contracts of purchase. In the offer Brady called attention to the impending need for a new courthouse and jail, and the importance of securing the balance of block 192 for that purpose before the realty values were raised. The supervisors, having considered the matter, appointed appraisers in conformity with the statute governing the acquiring of land for jail purposes, and also made inquiries of various prominent citizens as to the advisability of the purchase. The appraisers fixed the value of the property at $60,000, and the supervisors on June 11th accepted Brady's offer, a warrant was drawn for the purchase price, deeds taken from the different persons owning the property and recorded, and the transaction concluded.

On the 1st of January, 1927, a new board of supervisors took office. There had been considerable criticism in Tucson of the purchase above set forth, and the new board caused this action to be commenced in the superior court. Pima county in its official capacity was plaintiff, and there were some twenty-one defendants, who may be divided into several groups. The first group consists of the three supervisors hereinbefore named. The second group was composed of the original owners of the property, whom we shall hereafter call the owners. The third group was composed of the sureties on the bonds of the supervisors and their clerk, whom we shall hereafter call the sureties. The fourth group consisted of Harry R. Batterton, the clerk of the board of supervisors during the transaction involved herein, Richard G. Brady, the realtor who negotiated the deal, Frank B. Lopez, who was instrumental in securing the various options and contracts of purchase from the owners, and Ben B. Mathews and Ralph W. Bilby, who, it is claimed by plaintiff, were the attorneys for Brady, Lopez and Batterton in the transactions. We shall hereafter call this group the dealers. There were three other parties, but we need not consider them on this appeal.

After setting up the necessary formal matters and the ownership of the property involved, the complaint proceeds as follows:

"That as plaintiff is informed and believes and upon such information and belief alleges, heretofore and just prior to the 7th day of June, 1926, defendants Richard G. Brady, Frank B. Lopez, Ben B. Mathews, Ralph W. Bilby, Oscar C. Cole, Steve Roemer, J. G. Compton and Berniece Davis conspired, combined, confederated and agreed together, and with defendant Harry R. Batterton, to purchase and cause to be purchased by and on behalf of the plaintiff, and in violation of the laws of the State of Arizona, all that portion of Block 192 of the City of Tucson, Pima County, Arizona, not heretofore owned by plaintiff, and being what is known and described as Lots 1, 2, 6, 7, 8, and 9 of said Block 192, and at a price far in excess of the true and real value of such lots, and that as a result of such purchase, some of said defendants made and received out of the purchase price paid by plaintiff for such lots, a large profit, the exact amount and manner of distribution of which is unknown to plaintiff, but as plaintiff is informed and believes, and upon such information and belief alleges, such amount was in excess of Seventeen Thousand Dollars ($17,000.00). . . .

"That the said defendants Oscar C. Cole, Steve Roemer and J. G. Compton, then acting as such members of, and comprising the said Board of Supervisors, thereupon caused an entry to be spread upon the Minutes of said Board of Supervisors for June 11th, 1926, accepting the offer of defendant Brady, which said minute entry was in words and figures as follows, to-wit:

"'R. G. Brady appeared before the Board in behalf of the proposition he submitted in writing on June 7, 1926, for the purchase by the Board of that portion of Block 192 not now owned by the County of Pima, and the report of the Board of Appraisers having been filed prior thereto, upon motion by Roemer, seconded by Cole, all members voting "yes," the offer of said R. G. Brady was accepted, the Chairman was authorized to sign an acceptance for the Board of Supervisors and the Clerk was instructed to place the money in escrow at the Tucson Realty and Trust Company, and to proceed to procure the deeds and title to the above property.' . . .

"That thereafter, and at a meeting of the said Board of Supervisors held on December 31st, 1926, the said defendants, Oscar C. Cole, Steve Roemer and J. G. Compton, then acting as such members of and comprising the said Board of Supervisors of Pima County, caused an entry to be spread upon the Minutes of said Board of Supervisors, in words and figures as follows, to-wit:

"'Upon motion duly made, seconded and unanimously carried, it was ordered that the following paragraph be entered in the Minutes of the Board as having been inadvertently omitted from the minutes of the meeting of June 11th, 1926:

"'R. G. Brady appeared before the Board on behalf of the proposition submitted in writing on June 7, 1926, for the purchase by the Board of that portion of Block 192 in the City of Tucson, not now owned by the County of Pima, and the Board, finding it was necessary for the use of the county prison, and appraisers having been appointed by the Board, and appraisement having been made, upon motion of Roemer, seconded by Cole, and all members voting "Yes," the offer of the said R. G. Brady was accepted, and the Chairman was authorized to sign an acceptance for the Board of Supervisors and the Clerk was instructed to place the money in escrow at the Tucson Realty & Trust Company, and to proceed to secure the deeds and titles to the above property.'

"That the said portion of Block 192 heretofore referred to as having been purchased for and on behalf of plaintiff was not, and is not, nor was, or is, any portion thereof necessary for the use of the county prison, all of which was well known to the said members of said Board of Supervisors at all the times herein mentioned, and, as plaintiff is informed and believes, and upon such information and belief alleges, the said property was not purchased for the use of the county prison, nor for any other use or purpose for which said Board of Supervisors was authorized by law to purchase real estate for or on behalf of plaintiff, and that said minute entry of December 31st, 1926, was a mere subterfuge and pretense caused by the said defendants Oscar C. Cole, Steve Roemer and J. G. Compton to be entered for the purpose only of appearing to comply with legal requirements.

"That neither the purchase of said real estate, nor any part thereof, nor the expenditure made therefor, were included in any estimate or budget adopted by the said Board of Supervisors as required by law, and as plaintiff is informed and believes and upon such information and belief alleges, said warrant therefor was drawn upon and such expenditure for said real estate was made from a special fund of this plaintiff which was not available for the purchase of real estate, and such expenditure was in violation of law, and void.

"Plaintiff is informed and believes, and upon such information and belief alleges, that defendants Richard G. Brady, Harry R Batterton, Frank B. Lopez and Ben B. Mathews were each parties to the contract under which the said property was purchased for and on behalf of plaintiff, and received a profit from the proceeds thereof, the exact amount of which, and the manner of division of which plaintiff is not informed, but plaintiff is informed and believes, and upon such information and belief alleges, that such...