Kerby v. State ex rel. Frohmiller

Decision Date05 April 1945
Docket NumberCivil 4615
Citation157 P.2d 698,62 Ariz. 294
PartiesJAMES H. KERBY and HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Appellants, v. STATE OF ARIZONA, ex rel. ANA FROHMILLER, State Auditor, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Maricopa. Gordon Farley, Judge.

Judgment affirmed as modified.

Messrs Struckmeyer & Struckmeyer, for Appellants.

Mr Phil J. Munch, for Appellee.

Morgan J. Stanford, C. J., and LaPrade, J., concur.


Morgan, J.

This is an appeal by defendants from a judgment in favor of plaintiff, State of Arizona ex rel. Ana Frohmiller, State Auditor.

For a proper understanding of the issues it is essential to make some reference to the laws out of the administration of which the litigation arose. The legislature, through chapter 78, Session Laws 1925, placed in the secretary of state the administration of, among other things, the issuance of certificates of title and drivers' permits for motor vehicles. All fees received were to go directly to the secretary of state. All expenses incurred were to be paid by him and the balances remitted to the state treasurer. Section 19 of [62 Ariz. 298] the act provided: "The Secretary of State is hereby given power to incur any additional expense in the enforcement of this Act."

Section 20 provided: "The Secretary of State shall pay out of said fund all expenses which may be incurred in the enforcement and carrying out of the provisions of this Act; to pay for the printing of this Act, and the preparation and printing of the prescribed forms, together with the cost of postage, mailing and other necessary expenses, equipment, clerical and other employees."

This act was approved March 19, 1925, and became effective June 14th of that year. At the fourth special session of the eighth legislature the Highway Code for Arizona was enacted and appears as chapter 2 of the Special Session Laws, 1927. The act was passed with an emergency and became effective on the date of its approval, August 11, 1927. By the terms of this act, the highway commission was required to appoint a highway engineer and within ten days after his appointment and qualification the engineer was required to make a demand on the secretary of state for the records and other data relating to the registration of motor vehicles, issuance of certificates of title, etc. It was provided that the engineer must be appointed within thirty days.

The admitted facts are: The defendant, Kerby, was the duly elected, qualified and acting secretary of state for the years 1925, 1926 and 1927. Demand was made by the engineer upon him on August 27, 1927, for the books, property and records, in accordance with the terms of the code. A question having arisen as to the validity of the repeal of the former act, the interested parties agreed that Kerby should continue administering the act until the question was settled. During the period from August 17th to the 28th day of October, 1927, he continued in the administration of the Motor Vehicle Registration Act.

The defendant indemnity company executed a $ 10,000 bond for the faithful performance of Kerby's official duties and the payment of all moneys which might come to his hands as secretary of state, for the term beginning the 5th day of January, 1925, and ending on the first Monday of January, 1927. A like bond was executed by the defendant indemnity company for the period beginning the 3d day of January, 1927, and ending on the 7th day of January, 1929. These bonds were duly approved and filed.

About the 27th day of November, 1925, defendant Kerby expended and paid out of the funds in his possession collected by him under the terms of this act, the sum of $ 6,053.59 for 200,000 copper license tags. These tags bore on one side the words "If found return to James H. Kerby, Secretary of State," and on the reverse side the words "Operator's License." They were generally distributed throughout the state. Between the 11th day of August and the 17th day of October, 1927, he expended and paid out of the fees aforesaid, $ 1,375 for an audit of the books pertaining to his administration of the act, $ 3,035.85 for printing copies thereof, and $ 765 for envelopes for mailing same. On September 12, 1927, he paid out of said fund the sum of $ 178.68 for traveling expenses to attend the National Secretary of States' conference at Sacramento, California, on September 8th and 9th. On October 17, 1927, he paid out of such funds to himself for traveling expenses within the state of Arizona, during September and October, the sum of $ 176.10. The audit was deemed necessary by Kerby for the protection of public officers concerned with the enforcement of the law. It was approved by the then governor of Arizona. A copy of the audit was delivered to the state highway department, with all records, on the 28th day of October, and on or about the same day copies were delivered to all other officials interested in the administration of the Motor Vehicle Registration Act.

The plaintiff, Frohmiller, took office as state auditor on the first Monday in January, 1927, and has since continued in that office. All the records of the defendant Kerby relating to receipts and disbursements by him in the administration of the Motor Vehicle Registration Act have at all times since about the 28th day of October, 1927, been available to the state auditor. The validity and correctness of the receipts and expenditures were never judicially questioned until the institution of this action in the year 1940. At the time of the transfer of the business of the Motor Vehicle Registration Act to the state highway department, and for many years thereafter, Kerby was financially able to meet any demands made upon him in connection with his disbursements under said act. During such period he could have paid any amount that the surety on his bond, the indemnity company, might have been required to pay, if a judgment had been rendered against him, or demand made for payment of any illegal expenditure. At the time of the institution of this action, and at the present time, he is unable to pay the amounts for which it is claimed he is liable.

Under the provisions of chapter 78, Laws 1925, defendant Kerby was entitled to additional salary at the rate of $ 2,000 per year to cover the administration of the Motor Vehicle Registration Act. In the year 1930 Kerby filed an action in the superior court against Ana Frohmiller as auditor of the state of Arizona, for the issuance of a writ of mandamus to require her to show cause why she should not audit, allow and issue warrant for $ 2,416.65 which he claimed as unpaid salary under the act. The writ was issued. Frohmiller, as auditor, appeared in the action, filing pleadings questioning the sufficiency of the petition. This litigation finally resulted in a judgment in favor of Kerby for the amount of his claim. The claim was audited and found correct as adjudged by the court, but has never been paid.

The expenditures made by Kerby were bona fide in that each payment was made by him for goods received, or services rendered. Judgment, including interest at the legal rate to the date of judgment, was entered against defendant Kerby in the total sum of $ 22,799.75, and against defendant indemnity company in the sum of $ 20,000.

The first question for our consideration is as to the validity, or the legal right, of defendant Kerby to make these expenditures. This is to be determined from the provisions of the act. Did chapter 78, Session Laws 1925, authorize the payments? If not, should plaintiff be barred from recovery by any of the defenses interposed? These will be discussed after disposition of the first inquiry.

The secretary of state was given rather broad general powers in the enforcement and carrying out of the provisions of this act. The defendants argue that under Section 19, supra, the secretary had a wide discretion, and that he cannot be charged with a mere error of judgment. The claim is that the act conferred upon the secretary "to do all that he should deem reasonable and proper in the administration of the act, and that unless an abuse of discretion be shown there could be no ensuing liability." We do not so construe the law. The provision in Section 19 which gives the secretary "power to incur any additional expense in the enforcement of this Act" is limited by the provisions of Section 20. This section definitely states what the secretary shall pay for, and concludes with "and other necessary expenses, equipment, clerical and other employees." The payments involved here do not come within the expense items specifically mentioned in Section 20, and must be justified, if at all, under the latter portion of the section which we have quoted. That is to say, "other necessary expenses," "clerical and other employees." This is the measure of the secretary's right to incur and make expenditures. It is a clear pronouncement and the secretary should not have had any difficulty in determining what expenditures were authorized. The record discloses no evidence of bad faith on the part of the secretary, and that the payments made were bona fide, in that they were made for services rendered or expenses incurred or materials received by him in connection with his administration of the act. After the cause of action arose thirteen years elapsed before complaint was made. For these reasons, we will be impelled to consider all matters in the light most favorable to the defendants. If, through liberality of construction or views, any legal justification can be found for any of these payments, we deem it our duty to so hold.

The item of $ 6,053.59 for copper license tags is clearly not an expense...

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    ...AOE and the state defendants also point to the definition of "official act" adopted by the court in Kerby v. State ex rel. Frohmiller, 62 Ariz. 294, 310-11, 157 P.2d 698, 705-06 (1945). The court there defined "official acts" as "acts by an officer in his official capacity under color and b......
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