Cochise County v. Wilcox

• Decision Date: 05 October 1912
• Docket Number: Civil 1252
• Citation: 14 Ariz. 234,127 P. 758
• Parties: COCHISE COUNTY, Appellant, v. GEO. B. WILCOX, Clerk of the District Court of the Second Judicial District of the Territory of Arizona, Appellee
• Court: Arizona Supreme Court

127 P. 758

14 Ariz. 234

COCHISE COUNTY, Appellant, v. GEO. B. WILCOX, Clerk of the District Court of the Second Judicial District of the Territory of Arizona, Appellee

Civil No. 1252

Supreme Court of Arizona

October 5, 1912

APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan Judge. Reversed.

The facts are stated in the opinion.

Mr. W G. Gilmore, for Appellant.

Mr. Lee O. Woolery, for Appellee.

OPINION

McALISTER, J.

The appellee, Geo. B. Wilcox, brought this action against Cochise county for the recovery of $1,317.85 alleged to be due him for services rendered as clerk of the district court of the second judicial district of the territory of Arizona between the fifth day of July, 1907, and the sixteenth day of February, 1909, in the matter of suits brought in said court for the collection of delinquent taxes, after his formal demand therefor had been presented to the board of supervisors of said Cochise county on June 6, 1910, and by said board disallowed in toto. The county interposed a general demurrer to the plaintiff's complaint, which demurrer was overruled, and the defendant county electing to stand upon its demurrer, judgment was rendered in favor of the plaintiff, whereupon the county prosecutes this appeal.

The complaint shows on its face that the last item of appellee's claim accrued February 16, 1909, and that his itemized account and demand therefor in writing, duly verified by the affidavit of appellee, was presented to the board of supervisors of Cochise county for allowance more than six months after the last item of said account accrued, viz., June 6, 1910. For this reason appellant contends that no cause of action is stated, and its demurrer should have been sustained and judgment rendered for the defendant, while the position of appellee is that the six months' period prescribed in paragraph 989 of the Revised Statutes of 1901, for presenting a claim for allowance to the board of supervisors, is a law of limitation and cannot avail appellant because it has not been specially pleaded as a defense as provided by paragraph 2968 of the Revised Statutes of 1901. Appellee contends further that the term "official salary" includes "fees," which brings him within the exception in paragraph 989. The only error assigned is the order overruling the demurrer, and, if appellant's contention is sound, the ruling cannot be sustained.

Was the action of the board of supervisors disallowing appellee's claim correct? Paragraph 989 (section 62) provides: "Every person having a claim against any county in this territory, excepting those referred to in the provisions of this section, shall, within six months after the last item of the account accrues, present a demand therefor, in writing, to the board of supervisors of the county against which such claim or demand is held, verified by the affidavit of himself or agent, stating minutely what the claim is for, and specifying each several item and the date and amount thereof: Provided, that nothing herein shall be held to apply to the claims for compensation due to jurors and witnesses, and for official salaries, which, by some express provision of law, is made a demand against the county." If a written demand for clerk's fees, verified by the affidavit of the claimant or his agent, and stating minutely what the claim is for, and specifying each several item and the date and amount thereof, be presented to the board of supervisors for allowance more than six months after the last item of the account accrues, what can the board do? The answer is found in paragraph 993, which reads as follows: "The board of supervisors must not hear or consider any claim in favor of an individual against the county unless an account properly made out, giving all items of the claim, duly verified as to its correctness, and that the amount claimed is justly due, is presented to the board within six months after the last item of the account accrued, except as provided in section 62 of this chapter." It follows necessarily that, if the board "must not hear or consider" a demand presented after the period of six months has passed, it has jurisdiction to make no order other than one of rejection or disallowance. In construing a similar statute, the supreme court of California said: "Section 40 of the county government act of 1897 (Stats. 1897, p. 470) provides that the board of supervisors must not allow any claim in favor of any person against the county unless upon a properly itemized and verified claim 'presented and filed with the clerk of the board within a year after the last item of the account or claim accrued.' The claim of plaintiff was filed and presented more than a year after it accrued, and hence the board not only had no power, but was expressly prohibited from allowing it. It had no power to dispense with the express mandates of the statute." Perrin v. Honeycutt, 144 Cal. 87, 77 P. 776; Murphy v. Bondshu, 2 Cal.App. 249, 83 P. 278; Carroll v. Siebenthaler, 37 Cal. 196; Rhoda v. Alameda County, 52 Cal. 350.

Paragraph 988 provides: "No payment shall hereafter be made from the treasury of the counties of this territory unless the claim or demand shall be duly allowed according to the provisions of this title." Title 14, chapter 2, Revised Statutes of 1901, entitled "County Government," in which the sections quoted above are found, provides for the manner of establishing and enforcing claims against a county, and this court held in Yavapai County v. O'Neill, 3 Ariz. 363, 29 P. 430, that the remedy there prescribed was exclusive, using this language: " Presentation of every claim against the county to the board of supervisors for its action should be a condition precedent to the maintenance by the claimant of an action thereon; that the remedy so prescribed for the establishment and enforcement of claims for money against a county is exclusive." Not having followed the exclusive remedy prescribed by statute for the establishment and enforcement of his claim, appellee cannot now be heard to complain of the action of the board in disallowing it, unless he comes within the exception in section 989.

Does the term "official salary," as used in section 989 include the word "fees"? At the time the fees in question in this action were earned, the compensation of appellee, as clerk of the district court, was a stated salary per month, together with the fees prescribed by statute, which were paid in civil actions by the litigants, and in nearly all criminal actions by the county. When a demand for fees due the clerk was presented to the board of supervisors for consideration, it was necessary that every item be checked, and, if any erroneous charges appeared thereon, that they be deducted. It sometimes happened that extrinsic evidence was necessary to determine the correctness of a particular item or items of a clerk's fee bill. This being true, the reason for the existence of the statute requiring a claimant to present his demand for allowance within six months after the last item of the account accrues is just as apparent in the case of a demand for clerk's fees as it would be for any claim for particular services rendered at irregular periods. The legislature evidently intended that a claim for services rendered the county by a clerk of the court, or any other person, should be presented to the board for allowance before such a time could elapse as to make it difficult to produce the evidence necessary to establish its correctness. The terms "salary" and "fees," as used in this connection, have, we think, the meaning usually attached to these words. What do they ordinarily signify? Salary: "A periodical allowance made as compensation to a person for his official or professional services, or for his regular work." Standard Dictionary. Fee: "A payment for services done or to be done, usually for professional or special service, the amount being sometimes fixed by law or custom and sometimes optional." Id. " The distinction between salary and fees recognized by all the authorities is this: A salary is a fixed compensation for regular work, while fees are compensation for particular services rendered at irregular periods, payable at the time the services are rendered." Board of Supervisors v. Trowbridge, 42 Colo. 449, 95 P. 554. "By the ordinary acceptation of the term 'fees,' as heretofore and now used in the statute, we understand it to signify compensation or remuneration for particular acts or services rendered by public officers in the...