McCarthy v. State ex rel. Harless, Civil 4124

• Decision Date: 22 April 1940
• Docket Number: Civil 4124
• Citation: 55 Ariz. 328,101 P.2d 449
• Parties: ROY McCARTHY, Appellant, v. THE STATE OF ARIZONA ex Rel. RICHARD F. HARLESS, County Attorney of Maricopa County, Arizona, Appellee
• Court: Arizona Supreme Court

101 P.2d 449

55 Ariz. 328

ROY McCARTHY, Appellant, v. THE STATE OF ARIZONA ex Rel. RICHARD F. HARLESS, County Attorney of Maricopa County, Arizona, Appellee

Civil No. 4124

Supreme Court of Arizona

April 22, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Messrs Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.

Mr Richard F. Harless, County Attorney, and Mr. Leslie C. Hardy Deputy County Attorney, for Appellee.

Messrs Struckmeyer & Flynn, for Appellee.

OPINION

UDALL, Superior Judge.

This action was one of quo warranto, instituted by the State of Arizona at the relation of the County Attorney of Maricopa County to try the title of Roy McCarthy, defendant in the lower court and hereinafter referred to as appellant, to the office of member of the Board of Supervisors of Maricopa County. The appeal seeks a review of the judgment of the superior court, entered on plaintiff's motion for judgment on the pleadings, whereby appellant was ousted and excluded from the office of member of said Board of Superviours.

The factual situation as shown by the pleadings is as follows: Prior to June 23, 1939, C. Warren Peterson, John A. Foote, and George Frye were the duly elected and qualified members of the Board of Supervisors of Maricopa county, and appellant Roy McCarthy was a citizen member of the Maricopa County Board of Social Security and Public Welfare, hereinafter referred to as the welfare board, he having been appointed as such pursuant to section 10, chapter 69, Laws of the Regular Session, 1937, and furthermore during all the times here involved Supervisor Foote was also a member of the welfare board, both serving by appointment of the Board of Supervisors.

Supervisor C. Warren Peterson on June 22, 1939, tendered his resignation as a member of said board and on the following day, at a regularly called meeting, his resignation was accepted by the remaining two members. On this same day, June 23, 1939, pursuant to the provisions of section 768, Revised Code of Arizona 1928, the remaining two supervisors, John A. Foote and George Frye, together with the County Recorder Roger G. Laveen convened for the purpose of appointing a supervisor for the unexpired term of Mr. Peterson. The appellant Roy McCarthy was nominated by Supervisor Foote and Supervisor Frye nominated one Floyd Marler. By a vote of Supervisor Foote and Recorder Laveen, McCarthy was appointed supervisor, and on the same date he took and filed the oath and bond required by law, and continued to fulfill the duties of supervisor until ousted by the judgment of the trial court.

On June 23, 1939, the appellant filed his resignation as a member of the welfare board with said last-named board, and at a meeting held on that date, with members John A. Foote and R. M. Jamison present, and with appellant absent, the resignation was unanimously accepted. This resignation was not filed with the Borad of Supervisors of Maricopa county until June 24, 1939, and no affirmative action on said resignation was ever taken thereafter by the remaining two supervisors; but at a special meeting held on June 26, 1939, with Supervisors Foote and Frye, and also appellant McCarthy being present, the clerk presented appellant's resignation and same was spread upon the minutes of that meeting.

On July 3, 1939, being the regular monthly meeting date fixed by law, section 770, Revised Code of Arizona 1928, the Board of Superviours convened, with Supervisor Foote and appellant McCarthy present and member Frye absent, and appointed one E. A. Stanford to succeed appellant as a member of the welfare board, and said Stanford immediately qualified and has ever since fulfilled the duties thereof. On July 3, 1939, Supervisor Foote and County Recorder Laveen again convened for the purpose of selecting a member of the Board of Supervisors to fill the vacancy created by Peterson's resignation and they, with Supervisor Frye still absent, again purported to appoint appellant as Supervisor of Maricopa county, the latter, following this re-appointment, forthwith took the oath of office and filed a new bond.

Under the facts recited above, it is the contention of the State of Arizona, appellee herein, that the appellant was ineligible for appointment to the Board of Supervisors on either of the dates he was purportedly appointed, for the reason that he was still a member of the welfare board, his resignation as such not having been lawfully accepted, and that his purported appointment to that office by Supervisor Foote and County Recorder Laveen was without authority of law and consequently null and void. The appellant, on the other hand, maintains (a) that at the time of his appointment as supervisor he had resigned from the welfare board and his resignation had been impliedly accepted, (b) or that in any event by qualifying as supervisor he ipso facto vacated his membership on the welfare board, and that his appointment was, therefore, valid.

There are but four assignments of error, which will be considered as seems best without reference to their numerical order.

The statute creating county boards of supervisors and prescribing their qualifications, is section 766, Revised Code of Arizona 1928, reading as follows:

"There shall be in each county a board of supervisors, to consist of three members who shall be qualified electors of their supervisorial district, and shall be elected at a general election. They shall enter upon their duties on the first day of January subsequent to their election, and shall hold office for two years. No person holding any other county or precinct office is eligible to the office of supervisor." (Italics ours.)

This section standing alone clearly makes any person holding any other county or precinct office ineligible to the office of supervisor. The functions of the office are such that it becomes readily apparent why this last proviso was incorporated therein.

The thirteenth legislature of the State of Arizona enacted a law providing for the creation of State and County Bords of Social Security Public Welfare, together with an elaborate code governing their operations. This act is designated as chapter 69, Session Laws of 1937. Section 10 of that chapter creates the County Welfare Board and defines its duties. It reads in part:

"In each county there shall be a County Board of Social Security and Publid Welfare, consisting of one member of the board of supervisors and two citizen members, residents of different communities of the county, appointed by the county board of supervisors." This enactment permitted a supervisor to sit on the welfare board, and, while this court is not ordinarily concerned with the reasons prompting legislation, it is evident from a study of chapter 69, supra, that the legislature considered there was not necessarily any incompatibility between these two offices, as the county board is under the direct supervision and control of the state board. Subd. (b), sec. 10, supra, and Welch v. State Board of Social Security and Welfare, 53 Ariz. 167, 87 P.2d 109, 110.

The appellant first takes the position that it does not appear from the record or the law applicable thereto that he was disqualified from being a county supervisor because at the time of his appointment he was also a member of the welfare board, his argument being that a special statute, chapter 69, supra, which created county welfare boards and provides that one supervisor shall become a member of the welfare board, supersedes the general statute, section 766, supra, which makes any person who holds any other county or precinct office ineligible to the office of supervisor.

It seems to us that both enactments are special in their nature, rather than general, but in any event if there is any conflict between the two statutes the more recent one must prevail.

We are not unmindful that statutes imposing qualifications upon the right to hold office should receive a liberal construction as it impairs the right of the people to select officers of their own choosing. Furthermore, disqualifications provided by the legislature are construed strictly and will not be extended to cases not clearly within their scope, and the rule is also that there is a presumption in favor of the eligibility of one who has been elected or appointed to public office. 46

C.J. 937. The eligibility qualification prescribed by section 766, supra, for one to hold the office of supervisor is statutory and not constitutional and, hence, can be changed at will by the legislature; furthermore this section must be construed in pari materia with other statutes and later enactments. But with all of these rules to guide us, can it be fairly said because the legislature in enacting section 10, chapter 69, supra, provided that a member of the Board of Supervisors, to be selected by them, should sit on the welfare board, that without any repeal or amendment whatsoever of section 766, supra, it necessarily follows that a citizen member of the welfare board, without lawfully resigning, can be appointed to the office of supervisor? We think not, as the argument is unsound, it is obviously a non sequitur. Equally unsound is appellant's argument that more than one member of the Board of Supervisors might at any given time lawfully sit on the welfare board. This would nullify the clear provision that such board is to be composed of two citizen members and one member of the Board of Supervisors, section 10, chapter 69, supra.

We hold that there is no conflict between these two statutes and that the legislature in enacting chapter 69, supra, did not remove the eligibility restriction for office of supervisor imposed by section...