Webster v. Parks

• Decision Date: 11 December 1915
• Docket Number: Civil 1462
• Citation: 153 P. 455,17 Ariz. 383
• Parties: GEORGE WEBSTER, B. F. BILLINGSLEY and J. H. T. COSPER, Appellants, v. JAMES V. PARKS, Appellee
• Court: Arizona Supreme Court

153 P. 455

17 Ariz. 383

GEORGE WEBSTER, B. F. BILLINGSLEY and J. H. T. COSPER, Appellants, v. JAMES V. PARKS, Appellee

Civil No. 1462

Supreme Court of Arizona

December 11, 1915

APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge. Affirmed in part and in part modified and remanded.

Mr. L Kearney and Mr. John W. Ross, for Appellants.

Mr. W C. McFarland and Mr. H. E. Pickett, for Appellee.

OPINION

ROSS, C. J.

The appellee, as a taxpayer of Greenlee county, instituted this suit against the appellants, members of the board of supervisors of said county, to recover certain sums of money alleged to have been paid out by said board without authority of law. He set forth in his complaint five causes of action:

First. It is alleged that the tax rate for 1910 was $2.85 on each $100 valuation. That the rate for the year 1911 was $1.80. That the assessor of Greenlee county at the time of assessing the personal and real property of his county for the purposes of taxation for the year 1911 collected from property owners not owning real estate, taxes at the rate for 1910, to wit, $2.85 per $100; but, after the rate of 1911 was fixed at $1.80, the board refunded the difference to the taxpayers who had paid taxes for the year 1911 at the $2.85 rate.

Second. That on October 3, 1911, the appellants paid to W. O. Wheatley the sum of $250 for making the duplicate assessment-roll of said Greenlee county for the year 1911, the said Wheatley being at the time the duly qualified and acting clerk of said board of supervisors.

Third. That the appellants, on or about the twenty-seventh day of October, 1911, ordered paid to one E. C. Heck, an architect, as a premium for plans and specifications for a courthouse and jail for Greenlee county, the sum of $500. The said E. C. Heck not having at the time filed with said "board of supervisors a good and sufficient bond with two sureties thereon in the penal sum of $5,000, . . . conditioned that within 60 days from the date of said bond he, the said E. C. Heck, on presentation to him, would enter into a contract containing such provisions and conditions as may be required by said defendants as a board of supervisors, and as further conditioned that he, the said E. C. Heck, would give such further bond to secure the faithful performance of such contract, with such securities as may be required of him, in the event that the defendants acting as a board of supervisors should within 60 days require said Heck to enter into such contract to erect said courthouse and jail at the price named in said advertisement, to be expended for such purpose."

Fourth. That the appellants on the third day of November, 1911, ordered the sum of $65 to be paid out of the county treasury of said Greenlee county upon the claim of one H. O. Tunis for expenses of said Tunis in attending the Arizona Good Roads Convention at Prescott on October 2, 1911.

There is no question raised in this court as to the fifth cause of action. Hence it is not set forth.

The appellants interposed a general demurrer and a general denial to each of said causes of action, and in addition, as to the first cause of action, answered that their act in refunding taxes was ratified, cured, legalized and made valid by chapter 22 of the Laws of 1913, entitled, "An act to legalize certain acts of the board of supervisors and the county treasurer of the county of Greenlee in refunding overpayments on personal property to the taxpayers thereof, for the year 1911."

The court directed a verdict upon the first cause of action in favor of appellants, and in the second, third and fourth causes of action in favor of appellee. Judgment was entered upon said verdict in favor of the appellee for the sums sued for, together with interest and penalties and 40 per cent thereof as an attorney's fee. Both the appellants and appellee, being dissatisfied with the judgment, filed motions for new trial, which motions were by the court overruled. The appellants gave notice of appeal and also filed a bond on appeal. The appellee did not give any notice of appeal, but has made cross-assignments of error on the court's order directing a verdict in favor of appellants on the first cause of action.

It is the contention of the appellants on their assignments of error that the moneys directed by them, as the board of supervisors of Greenlee county, to be paid out of the funds of said county, were authorized by law, and that, if they were not authorized by law, in auditing, allowing and directing the payment of such sums of money the board was acting in a quasi judicial capacity within the scope of their authority and without corruption or malice, and in accordance to their honest convictions as to their duties.

The authority for bringing this suit by a taxpayer, as the appellee alleges himself to be, is found in paragraphs 955, 956 and 957 of the Revised Statutes of Arizona of 1901. We quote from paragraph 955:

" . . . That whenever any board of supervisors shall, without authority of law, order any money paid out of the county treasury for salary, fees, or for any other purpose, such supervisors and the party or parties in whose favor such order shall have been made, shall be responsible for all such sums of money and twenty per cent. additional thereon. . . . "

Under the express terms of this statute, the fact that the board may have acted in a judicial manner, or that its members may have been honest and conscientious in their belief of their right to pay out the sums of money charged, cannot in the least affect their liability for money paid out "without authority of law." If the members of the board would avoid personal responsibility for salary, fees or other sums of money paid out by them, they must ascertain if such payments are for a purpose authorized by some statute or law of the state. Good faith and honesty of purpose on their part are no defense to a lawsuit to recover moneys paid out without the law's sanction. Avery v. Pima County, 7 Ariz. 26, 60 P. 702.

The announcement of this rule may seem harsh, but we find it in the legislative act, and, of course, are bound by it.

It remains for us to determine whether the sums of money sued for by the appellee were paid out by the appellants with authority of law or "without authority of law." If the latter, the judgment must be affirmed, even though the sums were paid out for a most laudable purpose and with beneficial results to the county.

When the sum of $250 was paid to Wheatley for making a duplicate assessment-roll, he was the duly qualified and acting clerk of the board of supervisors of the county, and the law at that time provided for him a fixed and definite salary. Paragraph 2626, Revised Statutes of 1901. The law at that time further provided, in paragraph 2609, as amended by chapter 11 of the Laws of 1905, that "county officers shall receive such compensation as is provided hereafter and none other. . . . "

One of the duties imposed upon the board of supervisors is that it "shall cause a true copy of said assessment-roll to be made, to be styled a 'duplicate assessment-roll.'" Paragraph 3882, Revised Statutes of 1901.

Paragraph 970 of the Revised Statutes of 1901 prescribes the duties of the clerk of the board. Among others, he must "record all of the proceedings of the board, . . . " and "perform all other duties required by law or any rule or order of the board."

We gather from these provisions of the statute that it was the evident purpose of the law that the clerk should do whatever clerical work was necessary in connection with the performance by the board of supervisors of its duties, and that it was a part of the clerk's duty to make the duplicate assessment-roll for the salary fixed by law.

The appellants on the trial offered to prove that the work of making the duplicate assessment-roll was performed by one J O. Bailer, an assistant clerk, and that the demand was filed in the name of Wheatley for Bailer's benefit, and that the money was actually paid to Bailer. This offer was rejected by the court, and we think properly so. The appellant's answer consisted of a demurrer and general denial. Under the issue thus formed, the offered evidence was not competent or relevant. Had the answer pleaded Wheatley's agency, the making of the demand against the county, and receiving the warrant therefor, as agent of Bailer, another and different question would have been presented, to wit, whether the records of the board could be overturned by oral evidence. Under the pleadings, however, that question is not...