JOHN C. CALHOUN, as Treasurer of Maricopa County, Arizona, and Ex-officio Treasurer of Maricopa County Municipal Water Conservation District No. 1, Appellant,
MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DISTRICT No. 1, a Municipal Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.
Mr. Henry J. Sullivan, Mr. Austin O'Brien and Mr. Wm. C. Eliot, for Appellant.
Messrs. Hayes, Stanford, Walton, Allee & Williams, for Appellee.
[37 Ariz. 507] ROSS, J.
This is an action by Maricopa County Municipal Water Conservation District No. 1 against the county treasurer of Maricopa county, brought to compel said treasurer to transfer to the credit of the district some delinquent tax penalties collected by him in his capacity as county treasurer for and on account of the district, of which he was also ex-officio treasurer.
It is alleged that the county treasurer paid such taxes so belonging to the district into the county's general fund; that there is and has been all the time sufficient money in said general fund with which to reimburse the district. The county treasurer answered that such tax penalties belonged to the county and for that reason he had not paid or credited them to the district, and that he would not do so unless ordered by this court.
Upon the issues thus formed, we held in a former appeal (35 Ariz. 541, 281 P. 465) that the delinquent tax penalties sued for belonged to the district, remanded the case, and directed the lower court to proceed in accordance with our opinion. The trial court, after the case was remitted, no further answer being filed by defendant, issued a peremptory writ directing the county treasurer to pay over such sum to the district. After the writ was issued, the then county treasurer, John C. Calhoun, who had succeeded the original defendant J. K. Ward as defendant and county treasurer, made a motion to the court to correct and modify the writ. This motion was denied, and the county treasurer has appealed.
[37 Ariz. 508] Claiming that the writ is indefinite, in that it cannot be determined therefrom whether it runs against him as county treasurer or as ex-officio treasurer of the district, the defendant asks that it be corrected to show certainly in which capacity he was mandamused. From a reading of the writ, we conclude that this part of the motion is more hypercritical than meritorious. The writ directs the county treasurer to pay from the general funds of the county to the funds and account of the district the sum wrongfully appropriated by the county or county treasurer.
The request for modification is as follows:
"Your petitioner shows the court that as Treasurer of Maricopa County he has not in his hands at this time any fund or sums of money from which he may legally pay to the District the sum of money as directed by the said writ, if such is the intent of said writ, and that he will be unable to do so until the amount has been included in the next budget and the taxes levied and collected therefor."
This motion was unverified and was filed eleven days after the issuance of the writ. It does not show that the county treasurer was without money or funds available for the payment of the district's claim at the time of the issuance of the writ. What it does show is that at the time of the filing of the motion the county treasurer had no such funds.
When Treasurer Ward filed his answer to the complaint, he, in effect, stated he had on hand funds available and that he would pay the district the sum involved if ordered to do so by the court. There was no contention that the money had been spent for any county purpose or that it had not been preserved pending the decision of the question of ownership. The first suggestion that there were no funds with which to pay the court's judgment was made by Ward's successor eleven days after the judgment [37 Ariz. 509] directing the issuance of the peremptory writ. From the state of the record, we ...