King v. Hawkins

• Decision Date: 06 February 1888
• Citation: 2 Ariz. 358,16 P. 434
• Parties: CAMERON H. KING, Petitioner, v. JOHN J. HAWKINS, Auditor, Respondent
• Court: Arizona Supreme Court

16 P. 434

2 Ariz. 358

CAMERON H. KING, Petitioner, v. JOHN J. HAWKINS, Auditor, Respondent

Supreme Court of Arizona

February 6, 1888

Petition for alternative writ of mandamus.

Granted.

Cameron H. King, in persona, for petitioner.

Wilson and Norris, for respondent.

Wright C. J. Barnes, J., concurs. Porter, J., concurs in decision.

OPINION

The facts are stated in the opinion.

WRIGHT, C. J.

The petitioner, Cameron H. King, is the commissioner of immigration of this territory. As such, he is entitled to a salary of $ 2,000 per year. The defendant, in his answer and response, sets up a contract entered into by the petitioner and one Thomas E. Farish, prior to the thirty-first day of December, 1887,--the time when said petitioner's last quarterly salary accrued,--by which, for a valuable consideration, said petitioner, King, sold and assigned said quarterly salary to the said Farish. The exhibits filed with said answer and response do not show any assignment by King to Farish; but the following paper was filed therewith:

"Phoenix, Arizona, December 31, 1887.

"Territory of Arizona to Cameron H. King, Dr.

"For salary as commissioner of immigration for the quarter ending December 31, 1887, $ 500.00.

"Received payment. Cameron H. King.

"Territorial Auditor: Please draw warrant for above in favor of E. H. Hiller, who is authorized to receipt for me.

Cameron H. King."

On the back of this instrument are the words: "Without recourse. E. H. Hiller."

It is to be observed that the above order upon the auditor directs him to draw his warrant for the quarterly salary due King, in favor of E. H. Hiller, and no one else. It is in the nature of a power of attorney to the said Hiller, authorizing him to receipt for the warrant. This power was perhaps revocable by King at any time before the rights of third parties intervened. It is fundamental that an instrument such as this must have negotiable words on its face, in order to make it susceptible of transfer. If it wants these negotiable words, it cannot be negotiated or transferred so as to enable the assignee to sue upon it in his own name. It was a delegation of power to Hiller, without authority to Hiller to empower another to act for him. Would a general draft upon the auditor to draw his warrant for the salary in favor of E. H. Hiller or order have been negotiable? It is certain that such a draft, drawn against a contingent public fund, is not negotiable. There are no words upon the face of this instrument which show that it was the intention to give it an assignable or transferable quality.

The main question, however, in this case, and the one absolutely fatal to the defendant's side, is that the contract set up in the answer and response is void, as against public policy. In the answer and response is the following language "Defendant, further responding, says that he is informed and believes, and therefore charges the fact to be, that said order, account, and receipt of payment of same was by said King executed and delivered by him to said Thomas E. Farish in payment of consideration arising out of contract in favor of said Farish for the amount of $ 500; said contract having been entered into by and between said King and said Farish prior thereto." The truth is plainly inferable from the record herein that the commissioner of immigration, prior to the thirty-first of December, 1887--the time when his quarterly salary in question accrued,--attempted, by way of anticipation, the assignment of said salary, before it was due, first to E. H. Hiller, and afterwards, as it is claimed, to Thomas E. Farish. We entertain no doubt that both attempted assignments were void, as against a well-established rule of public policy. With the private equities and bona fides between the parties, of course, we have nothing to do. The paramount object of good government is to secure efficiency in the public service; and a good government will do its part whether the officer does his or not. To this end, those engaged in its public service are protected to the extent that the funds designed and set...