Callaghan v. Boyce

• Decision Date: 22 December 1915
• Docket Number: Civil 1500
• Parties: J. C. CALLAGHAN, Auditor of the State of Arizona, Appellant, v. JESSE L. BOYCE, Appellee
• Court: Arizona Supreme Court

153 P. 773

17 Ariz. 433

J. C. CALLAGHAN, Auditor of the State of Arizona, Appellant, v. JESSE L. BOYCE, Appellee

Civil No. 1500

Supreme Court of Arizona

December 22, 1915

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Modified and affirmed.

Mr. G P. Bullard and Mr. Will E. Ryan, for Appellant.

Mr George J. Stoneman, for Appellee.

OPINION

CUNNINGHAM, J.

This proceeding was commenced on July 23, 1915, by the appellee filing in the superior court of Maricopa county his application praying that an alternative writ of mandamus be issued directed to the state auditor, as defendant, requiring him to show cause, if any he has, why the defendant, as the auditor of the state of Arizona, does not audit, allow and draw a warrant upon the proper funds of the state of Arizona for the payment of each and every of the demands set forth in the petition.

The petition sets forth 20 separate demands numbering them beginning with (a) and continuing to and including (t). The demands are briefly described as follows:

(a) A claim by Anna May Daly on account of salary as clerk of the incorporating department of the Arizona Corporation Commission for the first half of July, 1915, $45.

(b) A claim of Pauline M. Gass on account of salary due for stenographic services rendered for the state tax commission covering July 9 and 10, 1915, at $3 per day, $6.

(c) A claim by G. M. Willard, state game warden of the state of Arizona, on account of traveling expenses incurred from July 1 to 6, 1915, inclusive, $18.50.

(d) A claim by May Belle Craig, office deputy of the state game warden, for the first half of the month of July, 1915, $50.

(e) A claim by Charles R. Osborn for salary as secretary of the state board of control for the first half of the month of July, 1915, $100.

(f) A claim by Harry Shea for services as chauffeur for the first half of July, 1915, as necessary traveling expenses of the board of control, $62.50.

(g) A claim by Lamar Cobb on account of salary as state engineer for the first half of the month of July, 1915, $125.

(h) A claim by May S. Allen, secretary of the sheep sanitary commission, for salary for the first half of July, 1915, $37.50.

(i) A claim by B. F. McFall, clerk of the Phoenix union high school upon a certificate of the state board of education of satisfactory evidence and credentials showing that said school has been maintained in a satisfactory manner, for a period of not less than eight months during the school year 1913-14, and has during that period expended $2,500 in teaching vocational pursuits, to be paid out of the general fund under the provisions of chapter 13, sections 2791 to 2796, inclusive, and paragraph 2815 of the Revised Statutes of Arizona (Civil Code 1913), $2,500.

(j) A claim by Charles W. Harris, adjutant-general of the state of Arizona, on account of expenses incurred in the purchase of postage stamps, $10.

(k) A claim by C. W. Adkinson, financial secretary of the University of Arizona, on account of money advanced to the department of the education of the deaf, dumb and blind of the state of Arizona, under the direction of the board of education, which claim was approved by the state board of education, $2.

(l) A claim by the Arizona state fair commission against the maintenance fund, which was approved by the state fair commission and its officers before presentation, $350.

(m) A claim by the Arizona state fair commission on account of state fair deficit, $3,108.74.

(n) A claim by H. C. Crozier & Co. on account of books and supplies furnished to the engineering department of the office of the state engineer, $31.

(o) A claim by the University of Arizona on account of expenses incurred in conducting the bureau of mines for purchase of postage stamps, $2.

(p) A claim by the H. H. McNeil Co. on account of books furnished to the state board of education, $6.

(q) A claim by R. B. Sims on account of salaries and wages of employees and officers of the state prison from July 1 to July 15, 1915, inclusive, $1,332.60.

(r) A claim by C. O. Case, superintendent of public instruction, on account of 250 application blanks for blind children of school, $6.

(s) A claim by Clara Freestone for clerical assistance to the state librarian for the first half of July, 1915, $50.

(t) A claim by B. J. Bradley for repairs and carpenter work on the Capitol grounds, $3.

For the sake of brevity and clearness we will refer to each of the claims by its letter number.

The petition alleges: "That on and prior to the 16th day of July, 1915, and before the commencement of this action, certain officers and employees of certain departments of the state of Arizona, having and holding . . . just and legal claims against the state of Arizona, assigned to plaintiff herein for collection each and all of said claims, and that on the 15th day of July, 1915, plaintiff, as the lawful holder and owner by assignment of said claims, presented said claims to defendant, as auditor of the state of Arizona, for audit and allowance and the issuing of warrants therefor; that each of said claims so by plaintiff presented to defendant for audit and allowance was duly verified by the persons making the same, and were and are in all respects in the form required by the laws of the state of Arizona, and were and are claims which of right should be allowed and are properly allowable under the existing laws of the state of Arizona as just and legal claims against the state upon the funds against which said claims and demands were presented. . . ."

The petition further alleges that the defendant, as said auditor of the state, on the sixteenth day of July, 1915, without right or authority of law, refused to audit or allow said claims, or to authorize the drawing of warrants to cover the amounts therein set forth, for the reason as alleged by the defendant: "That he is in doubt as to the existence of proper legal legislative appropriations and authority for the department of the auditor of the state of Arizona to issue its warrants in payment of any of said claims so by plaintiff presented."

The several claims are therefore set forth by number, as mentioned above, from (a) to (t), both inclusive, and each claim is sufficiently set forth as a separate count or cause of action by reference to preceding allegations, and by additional allegations referring to the particular statute relied upon as authority for the claim and the appropriation as authority for its allowance. The petition is voluminous, and to quote it in full would answer no useful purpose.

The writ to show cause was issued returnable before the court on the second day of August, 1915. Service of the writ was accepted upon the day of its issuance, and on the return day, August 2, 1915, the defendant appeared as commanded, and moved to quash the writ upon alleged grounds, and demurred to the petition generally, and specially to each count or claim, and answered and returned to the merits, alleging:

"That he admits the allegations of said complaint in manner and form as therein alleged; that each and all of the claims (a) to (t), inclusive, were presented to him for audit and for the issuance of a warrant therefor either by him, as auditor of the state of Arizona, or upon the treasurer of the state of Arizona.

"Admits in manner and form as therein alleged that he refused to issue any of said warrants. Denies that such refusals or any of such refusals did constitute, as to any of said claims, a failure to perform an act which the law of the state of Arizona specially enjoined upon him as auditor of the state of Arizona, and so enjoined as a duty resulting from such office to audit such claims and draw warrants therefor to the plaintiff or to the persons originally presenting same to defendant.

"Alleges and says, respecting each and all of said claims, as respecting his refusal to audit and issue warrants for any of same, that he was acting within his official duty designated and vested in him pursuant to the laws of the state of Arizona, and particularly by section 78 and section 79 of the Revised Statutes of Arizona 1913, and by section 23 of House Bill No. 50 of the Third Special Session of the Legislature of the state of Arizona.

"Denies that plaintiff has in and by his complaint alleged and stated any cause entitling plaintiff to relief by this court by writ of mandamus, or otherwise, by reason of defendant's acts and doings in the whole premises."

The trial court treated the pleadings of the defendant as an answer which raised only questions of law, and on the return day proceeded to hear the matter as paragraph 1563 of the Civil Code of 1913 permits. The court formally overruled the demurrers, denied the motion to quash, and granted judgment in favor of the plaintiff and against the defendant in accordance with the prayer of the petition, and ordered the alternative writ of mandamus to be made absolute. The defendant moved to vacate the judgment, which motion was denied. From the judgment and the order aforesaid the defendant has appealed.

Appellant in his opening brief expressly waives his claim to appeal as to the causes of action numbered, (e), (g), (1), (m) and (n); therefore these causes of action and questions predicated thereon are eliminated from our consideration.

The appellant justifies his refusal to obey the mandate:

(1) Because the duty he is commanded to perform is to audit allow and authorize the payment of and draw a warrant therefor, upon the treasurer of the state of Arizona, in payment of each, all and every of said claims so by the said Jesse L. Boyce presented, and consequently is commanded to exercise a discretion vested in him as such auditor, in a...