Refsnes v. Oglesby, Civil 3881

• Decision Date: 16 November 1937
• Docket Number: Civil 3881
• Citation: 50 Ariz. 494,73 P.2d 90
• Parties: J. E. REFSNES, SIMS ELY, Jr., and PAUL D. BECK, Copartners, Doing Business Under the Firm Name and Style of REFSNES, ELY, BECK & COMPANY, Appellants, v. ED OGLESBY, Treasurer of Maricopa County, C. WARREN PETERSON, as Chairman, and JOHN A. FOOTE and GEORGE FRYE, as Members of the Board of Supervisors of Maricopa County, and MARICOPA COUNTY, Appellees
• Court: Arizona Supreme Court

73 P.2d 90

50 Ariz. 494

J. E. REFSNES, SIMS ELY, Jr., and PAUL D. BECK, Copartners, Doing Business Under the Firm Name and Style of REFSNES, ELY, BECK & COMPANY, Appellants, v. ED OGLESBY, Treasurer of Maricopa County, C. WARREN PETERSON, as Chairman, and JOHN A. FOOTE and GEORGE FRYE, as Members of the Board of Supervisors of Maricopa County, and MARICOPA COUNTY, Appellees

Civil No. 3881

Supreme Court of Arizona

November 16, 1937

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

Messrs Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellants.

Mr Harry Johnson, County Attorney, and Mr. Mark Wilmer, his Deputy, for Appellees.

OPINION

LOCKWOOD, J.

This is an appeal by J. E. Refsnes, Sims Ely, Jr., and Paul D Beck, copartners doing business as Refsnes, Ely, Beck & Company, hereinafter called plaintiffs, from a judgment of the superior court in favor of Ed Oglesby, as treasurer of Maricopa county, C. Warren Peterson, John A. Foote, and George Frye, as members of the board of supervisors of said county, and the county in its corporate capacity, hereinafter called defendants, determining that the latter should not use the proceeds of the 1936-37 taxes to pay a certain warrant of the county owned by defendants and issued and registered during the year 1932-33, until and unless all obligations budgeted and incurred during the year 1936-37 had been satisfied.

The case was submitted to the trial court on an agreed statement of facts, and judgment was rendered in favor of defendants, whereupon this appeal was taken.

The sole question before us is, of course, whether the court properly applied the law to the facts agreed upon, and we state these facts, together with such other facts material to the question of which we may take judicial notice, as follows:

Since the year 1901, sections 775 and 776, Revised Code 1928, have appeared in substantially the same form in our law. These sections read as follows:

"§ 775. Expense fund; annual budget; duties of treasurer. The board shall create a fund known as the expense fund, and shall order, whenever necessary, the transfer of sufficient money into said fund from the general fund of such county to pay the expenses of maintaining the government of such county until additional revenues may be collected to defray such expenses. Before making such order the board shall make an estimate of the amount required, for what purpose, and the amount available for the purposes of such fund, from taxes or otherwise, and when such estimate is made, shall enter the whole of such itemized estimate in the minutes of the board. The county treasurer shall make such transfer when ordered by such board, and pay from such expense fund orders drawn thereon by the board for the maintenance of the county government, such orders to be drawn and signed as county warrants. The board shall not issue an order on such fund until there is sufficient money therein to pay and redeem the order. Orders shall be issued on said fund in the order of their allowance by the board. If at any time the board believes there is more money in said expense fund than necessary to pay the expenses of maintaining the government of such county, it shall make an order directing the treasurer to transfer such excess to the general fund of the county, and the treasurer shall make such transfer so ordered, and the money so re-transferred shall be available for the redemption of outstanding warrants against the county."

"§ 776. Expenses defined; transfer of funds. The expense of maintaining the government consists of official salaries, fees and mileage, fees and mileage of jurors and witnesses, county printing and advertising, books and stationery, feeding county prisoners, the care of the indigent sick, water, wood, lights and like supplies for county institutions, insurance and repairs of county buildings. Boards may create a salary fund and pay therefrom the salaries of officials and employees, and fees and mileage of jurors. After the transfer of funds to the expense fund, the board may transfer from the expense fund to the salary fund, as provided for transfer of funds from the general fund to the expense fund, an amount sufficient to pay such salaries of officials and employees, and fees and mileage of jurors, and authorize and order payments from such salary fund in like manner as on the expense fund, and may, in like manner, create and make payments from such other county funds as necessary for the proper transaction of the business of the county."

In accordance therewith, for many years it has been the custom of Maricopa county to divide its receipts among certain special funds established in accordance with the above sections, one of these being known as the "expense fund," and to pay all obligations properly chargeable against any particular fund from the money apportioned to that fund, and no other. If for any reason, an obligation was charged against a certain fund and when it was due there was no money in such fund, it was the custom of the supervisors to follow the provisions of section 867, Revised Code 1928, which reads as follows:

"Payment of warrants; interest if not paid. When a warrant of the board of supervisors is presented for payment, the treasurer shall pay the same, and write or stamp on the face thereof 'paid,' the date of payment, and sign his name thereto; if he cannot pay the same for want of funds, he shall endorse thereon, 'not paid for want of funds,' and the date of presentation, and sign his name thereto; and from that time until paid the warrant shall bear six per cent per annum interest, except that school salary warrants may bear not to exceed eight per cent, to be fixed by the county superintendent of schools. He must keep a register of warrants presented for payment."

Whenever, either in the current fiscal year or at later times, the particular fund on which the warrant was drawn was replenished, the warrants drawn against it were paid from such fund in the order of their presentation, regardless of whether the money with which they were paid was the proceeds of taxes for the year in which the warrant was drawn, or came from any other source, including taxes of subsequent years. This the supervisors did, believing they were following the provisions of section 869, Revised Code 1928, which reads as follows:

"Order of payment of warrants. Warrants are entitled to preference of payment out of the money applicable to such warrants according to the priority of presentment. The treasurer, upon receipt of money not otherwise appropriated, shall set apart the same or so much thereof as is necessary for the payment of such warrants." (Italics ours.)

For many years the legislature of Arizona has been endeavoring to compel the various counties and municipalities to keep their current expenses within their current receipts, and in the year 1921 it adopted what is commonly known as the "budget law," being chapter 52, Regular Session Fifth Legislature. We shall discuss the principal provisions of this law in a later portion of our opinion. In the fiscal year 1932-33, in an attempt to follow the provisions of that law, the board of supervisors of Maricopa county duly budgeted an amount to take care of the obligation involved in this action, and levied a tax which, if paid in its entirety,...