LeFebvre v. Callaghan
| Decision Date | 28 January 1928 |
| Docket Number | Civil 2695 |
| Citation | 263 P. 589,33 Ariz. 197 |
| Parties | W. C. LeFEBVRE, State Engineer of the State of Arizona, Plaintiff, v. J. C. CALLAGHAN, as Treasurer of the State of Arizona, Defendant |
| Court | Arizona Supreme Court |
Original proceeding for writ of mandamus. Demurrer sustained and alternative writ quashed.
Messrs Struckmeyer, Jennings & Strouss, for Plaintiff.
Messrs Mathews & Bilby, for Defendant.
W. C LeFebvre, state engineer of the state of Arizona, filed in this court an original petition for a writ of mandamus directed to J. C. Callaghan, as treasurer of the state of Arizona, praying that the latter be ordered to pay to the plaintiff the amount of a certain state warrant issued to the J. D. Halstead Lumber Company, and for valuable consideration transferred to plaintiff.
The petition set up the enactment by the legislature of chapter 35, Session Laws of 1922, and particularly section 10 thereof, which reads as follows:
It then alleged as follows:
"That heretofore, to wit, on the 12th day of July, 1927, the Honorable GEORGE W. P. HUNT, pursuant to the provisions of said chapter 35, section 10, Session Laws of Arizona, 1922, issued his proclamation wherein the said Governor declared an emergency to exist by reason of the fact that certain specified works, buildings or property of the state had been damaged or destroyed by acts of God, to wit, rain, creating a contingency and emergency for which no other funds had been appropriated, and did, by such proclamation, authorize the state engineer to incur debts and liabilities to the amount of one hundred twenty-one thousand six hundred ($121,600.00) dollars for the purpose of repairing and restoring said works, buildings, and property." (Italics ours.)
The complaint then set up that, in pursuance of said proclamation, the state engineer purchased certain material from the Halstead Lumber Company for the purpose of repairing the Wickenburg bridge, mentioned in the proclamation, and that a warrant was duly presented to the state engineer for said material, approved by him and by the state auditor, and presented to the treasurer for payment. The warrant reads as follows:
Indorsed on back thereof:
The petition then alleges as follows:
-- and also that "there is, and was at all times, sufficient money in the fund against which this claim is chargeable to pay the whole thereof."
The petition then states that the treasurer refuses to pay the warrant, and concludes with the usual prayer for relief. To this petition respondent filed a demurrer, which was duly argued, and the matter submitted to us on such demurrer.
On consulting section 10 of chapter 35, supra, it appears that the Governor is authorized under certain circumstances to incur certain liabilities and expenses payable from a fund created by said section, and known as the "emergency fund," or under certain other circumstances he may authorize the incurring of debts against the state in excess of said emergency fund. The circumstances which authorize the incurring of any such liability in the first place are "invasions, riots or insurrections, epidemics of disease, acts of God which result in invasion, damage or disaster to the works, buildings or property of the state, or, which menace the health, lives or property of any considerable number of persons in any community of the state. . . ."
It will be seen on examining the petition as aforesaid that it is based upon "acts of God which result in . . . damage or disaster to the works, buildings or property of the state," and the particular act of God relied on is specified in the pleading as "rain."
The first question for our consideration then is, Does "rain," not further described, constitute an "act of God" within the meaning of section 10, supra? The phrase "act of God" has been before the courts repeatedly, and the cases wherein that phrase has been defined are almost innumerable. On examining them, it will be seen that generally speaking there are two definitions used, in accordance with the particular circumstances of the case. The one definition is:
"An act of nature which implies entire exclusion of human agency."
The other is:
"That kind of force of the elements which human ability could not have foreseen or prevented, such as lightning, tornado, sudden squall or wind, and the like."
We are of the opinion that the particular definition implied by the section in question is the latter; that is to say, some injury occasioned exclusively by nature such as could not have been prevented by ordinary human care, skill, and foresight. The particular thing set up in this case as being an act of God,...
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