Coleman v. Lee, Civil 4402

• Decision Date: 26 January 1942
• Docket Number: Civil 4402
• Parties: P. T. COLEMAN, Appellant, v. A. H. LEE, JAMES S. SHREEVE, D. T. BENCHOFF, LELAND D. CARMACK, and JOHN GREER, as Treasurer of Apache County, Arizona, Appellees
• Court: Arizona Supreme Court

121 P.2d 433

58 Ariz. 506

P. T. COLEMAN, Appellant, v. A. H. LEE, JAMES S. SHREEVE, D. T. BENCHOFF, LELAND D. CARMACK, and JOHN GREER, as Treasurer of Apache County, Arizona, Appellees

Civil No. 4402

Supreme Court of Arizona

January 26, 1942

APPEAL from a judgment of the Superior Court of the County of Apache. C. C. Faires, Judge. Judgment affirmed.

Mr. W Dean Nutting. Mr. Don T. Udall and Mr. F. Ray Brown, for Appellant.

Mr. J Smith Gibbons, for Appellees.

OPINION

ROSS, J.

This is an action by P. T. Coleman, a taxpayer of Apache County against A. H. Lee, James S. Shreeve and D. T. Benchoff, members of the board of supervisors of said county, John Greer, treasurer thereof, and Leland D. Carmack, to recover money alleged to have been illegally paid, or to enjoin its payment if not paid, to defendant Carmack for services rendered by Carmack in connection with the administration, hospitalization and medical care of the indigent sick of the county.

The cause of action is set forth in twenty-two counts, each count being for a monthly or semimonthly payment made, or to be made, to Carmack (for the period from April, 1938, to Cotober, 1939), and for 40 % thereof for attorney's fees.

Plaintiff demanded of the county attorney that he bring the action and, upon a failure of such officer to comply with his demand within the time fixed by law, filed the action in his own name (December 18, 1939), which he is authorized to do upon compliance with section 17-326, Arizona Code 1939. Such section also provides that if he prevails he shall be entitled to costs and "a reasonable attorney fee not to exceed forty (40) per cent of the amount recovered or saved to the county." The right of action exists by virtue of statute and is maintainable only when the board of supervisors pays out money "without authority of law." Section 17-325.

Judgment went in favor of defendants and plaintiff has appealed.

It is first contended by him that the county budget for the years involved (April, 1938, to October 2, 1939, inclusive) made no provision to pay for services rendered in the administration of such relief as hospitalization and medical care of the county's indigent sick. The basis of this contention is that the budget item for "indigent sick" is a lump sum and not broken down as $ for hospitalization, $ for medical care, $ for nursing, $ for investigation of indigent claimants, etc. It is insisted that in Bank of Lowell v. Cox, 35 Ariz. 403, 279 P. 257, and in Maricopa County v. Armstrong, 42 Ariz. 317, 25 P.2d 1023, this court held that the budget should be broken down and that disbursements should correspond with its several items. In those cases we did hold that where the legislature or the board of supervisors had appropriated money and designated the object or officer for which it was to be used, it could not be used for something or some officer different than the legislative or supervisorial designation. We did not hold, for the question was not involved, that an item, as for instance, for the county indigent sick, could not be legally made in a lump sum and broken down later by those authorized to expend it. In State Board of Health v. Frohmiller, 42 Ariz. 231, 23 P.2d 941, a lump sum appropriation to an officer or department was upheld, the court saying it could be apportioned by the head of the office or department, and we see no reason why the board of supervisors could not make the appropriation in the budget in a lump sum, leaving to those whose duty it is to spend such sum the power and right to apportion it as the law permits.

It is next contended by plaintiff that the money paid Carmack was for a purpose not authorized by law. When applicants for indigent relief filed their claims with the board of supervisors, it was the duty of the board to investigate such claimants and determine whether they were entitled to relief under the law, and, in doing so, it was necessary for the board's agent in some cases to travel by automobile to distant parts of the county. This Carmack did, furnishing his own transportation. The board of supervisors paid for such services and it is the moneys so paid that are involved in this litigation. The money, without question, was spent for a purpose authorized by law. It was to the interests of the county to find out whether applicants for relief were worthy under the law or whether they were "fakes," and investigation to determine that fact was as necessary as medical aid, nursing, etc.

There is no suggestion that the board of supervisors acted otherwise than in perfect good faith in engaging Carmack to make investigation of applicants for indigent sick aid, or that he did not make such investigations, or that the amount paid him was excessive. In such circumstances, as was said in Batterton v. Pima County, 34 Ariz. 347, 271 P. 720, 722:

"The sole question is whether or not the purpose for which the money was paid out was one authorized by the statute. If it was, no suit can be maintained under paragraph 2442, supra." (now section 17-325.)

There might be some other remedy under different statutes or the common law, as stated in said case, but not the statutory action under section 17-326, supra.

In Maricopa County et al v. State et al., 51 Ariz. 372, 77 P.2d 212, and Mahoney v. Maricopa County, 49 Ariz. 479, 68 P.2d 694, we held, in discussing the state and county boards of social security and public welfare, that the power of boards of supervisors of counties to spend money for public assistance to the needy of any class or in any manner had been taken from them under the new setup contained in Chapter 69, Laws of 1937 (now sections 70-101 to 70-118, Arizona Code 1939, as amended) and that such power had been transferred to the state and county boards of social security and public welfare, and that the county boards, acting under the direction and control of the state board, were the local agent in that connection. However, we do not believe it was intended that said act should interfere in any manner with the power of the board of supervisors to appropriate and spend money for the protection of the indigent sick of the county. This is one segment of the public relief that is still left to the county. The legislature has acted upon the assumption that the duty of caring for the indigent sick is a county matter, for it has made it the duty of the board of supervisors (in section 17-403) "to include in its annual budget and tax levy for county purposes, such amount as it shall deem necessary and adequate for the hospitalization and medical care of the indigent sick in such...