Santa Cruz County v. Burgoon

• Decision Date: 20 March 1909
• Docket Number: Civil 1056
• Citation: 12 Ariz. 295,100 P. 792
• Parties: SANTA CRUZ COUNTY, Plaintiff and Appellant, v. IGNATIUS BURGOON, JAMES HARRISON, and OSCAR F. ASHBURN, Supervisors of Santa Cruz County, Arizona, and A. C. KINGSLEY, Defendants and Appellees
• Court: Arizona Supreme Court

100 P. 792

12 Ariz. 295

SANTA CRUZ COUNTY, Plaintiff and Appellant, v. IGNATIUS BURGOON, JAMES HARRISON, and OSCAR F. ASHBURN, Supervisors of Santa Cruz County, Arizona, and A. C. KINGSLEY, Defendants and Appellees

Civil No. 1056

Supreme Court of Arizona

March 20, 1909

APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Santa Cruz. Frederick S Nave, Judge. Affirmed.

The facts are stated in the opinion.

W. A O'Connor, District Attorney, and Eugene S. Ives, and S L. Pattee, for Appellant.

The appointment of Kingsley as such county superintendent of health was null and void, and any payment to him out of the funds of said Santa Cruz county of any salary or compensation as such county superintendent of health was an illegal payment which the plaintiff was entitled to have enjoined under paragraph 955 of the Revised Statutes of 1901.

Section 6 of Act 65, Laws of 1903, establishes a county board of health, composed of the chairman of the board of supervisors the district attorney, and a third member to be appointed by the board of supervisors. It then provides that the board of supervisors shall appoint a county superintendent of public health for the county, who shall be a practicing physician within the county, and who shall hold his office for two years, and until his successor is elected and qualified.

The court erred in sustaining said demurrer and in rendering judgment for the defendants.

Paragraph 1048 of the Revised Statutes of 1901 provides that no person is eligible to a county office, whether elective or appointive, who, at the time of his election or appointment, is not an elector of the county or precinct in which the duties of the office are to be exercised. This statute applies to all county officers and prescribes general qualifications which any officer, elective or appointive, must possess at the time of his election or appointment. It is a settled rule of law that the election or appointment of an ineligible person is absolutely void. State v. Newman, 91 Mo. 445, reported sub. nom. State v. Aldermen Pierce City, 3 S.W. 849; State v. Crawford, 17 R.I. 292, 21 A. 546; 23 Am. & Eng. Ency. of Law, 2d ed., 338.

The right to compensation follows the title to the office, and if the person elected or appointed is ineligible at the time of his election or appointment, he cannot recover compensation, and no money can be legally paid him by the way of salary or compensation for such services by county officers, and the fact that he might as to the public be a de facto officer in no wise gives him the right to recover compensation, or the board of supervisors the right to pay him. Meagher v. Storey County, 5 Nev. 244; People ex rel. Stratton v. Oulton, 28 Cal. 44; Nichols v. McLean, 101 N.Y. 526, 54 Am. Rep. 730, 5 N.E. 347; Andrews v. City of Portland, 79 Me. 484, 10 Am. St. Rep. 280, 10 A. 458.

Paragraphs 955, 956 and 957, Revised Statutes, give the absolute right to enjoin all illegal payments of county moneys or to recover them back when paid.

Frank J. Duffy, for Appellees.

The remedy sought was not the proper one, and the court could do nothing but sustain the demurrer. The eligibility of the appointee being the only matter before the court, the board of supervisors having acted within the scope of their authority, and being the sole and only judges of the qualifications which combine to make the appointee eligible, their action in so making the appointment will stand until it is brought into court for review in the proper manner and by the proper proceeding, which, as provided by paragraph 1049, is by appeal or certiorari. An injunction will not lie, especially in the face of the statute providing a remedy at law.

"An injunction will not lie to restrain the anticipated action or mere threat of the board of supervisors of a county." Merriam v. Board of Supervisors of Yuba Co., 72 Cal. 517, 14 P. 137; Board of Commrs. v. Stoufer, 47 Kan. 287, 27 P. 1000.

OPINION

DOAN, J.

-- In this action the appellant, by W. A. O'Connor, its district attorney, brought an action in the district court of Santa Cruz county, pursuant to the provisions of paragraph 955, Civil Code of 1901, and asked to have the defendants Burgoon, Harrison, and Ashburn, as supervisors of Santa Cruz county, enjoined and restrained from paying to the defendant Kingsley any money out of the public funds of Santa Cruz county for salary or compensation for services as county physician or county superintendent of health of said county and to enjoin and restrain said Kingsley from receiving or collecting any moneys out of the public funds of said county as salary or compensation for services as such county physician or county superintendent of health. The complaint alleged that the board of supervisors of Santa Cruz county had theretofore appointed said Kingsley to the office of county superintendent of health at a salary of $300 per annum, payable monthly, and had appointed said Kingsley as county physician of said county, and at the time of both said appointments Kingsley was ineligible to be appointed...