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Board of Sup'rs of Apache County v. Udall

Supreme Court of Arizona

July 13, 1931

BOARD OF SUPERVISORS OF APACHE COUNTY, STATE OF ARIZONA, Consisting of BERT J. COLTER, BURR W. PORTER and J. ALBERT BROWN, Members of Said Board of Supervisors, Appellants,
v.
H. G. UDALL and DORINDA UDALL, His Wife, Appellees

Page 344

APPEAL from a judgment of the Superior Court of the County of Apache. P. A. Sawyer, Judge. Judgment affirmed.

Mr. Dodd L. Greer, County Attorney, for Appellants.

Mr. J. Smith Gibbons and Mr. W. E. Ferguson, for Appellees.

Mr. John C. Gung'l, United States Attorney, Amicus Curiae.

OPINION

Page 345

[38 Ariz. 500] LOCKWOOD, J. H.

G. Udall and Dorinda Udall his wife, hereinafter called plaintiffs, brought suit against Bert J. Colter, Burr W. Porter, and J. Albert Brown, as members of the board of supervisors of Apache county, hereinafter called defendants, alleging in substance that plaintiffs were taxpayers of Apache county, and that defendants were the supervisors thereof; that said defendants had attempted to enter into a contract with the United States of America through the Secretary of Agriculture, by the terms of which defendants were to secure at the expense of Apache county a right of way for a certain road to be constructed by the secretary, under the supervision and at the expense of the United States, and maintained by said United States for a term of two years, after which said road to to be maintained indefinitely by Apache county to the satisfaction of the said secretary at an estimated cost of $300 per mile. It was further alleged that defendants had not either before or since the making of said contract adopted a budget for Apache county covering the expense of said right of way and maintenance of said road in accordance with their agreement, nor had they provided therefor from any other fund; that the road referred to was not a county road, but a federal road project, and that the terms of the respective defendants as supervisors would expire before the liability for the maintenance for the road as aforesaid would accrue. The prayer was that the defendants be enjoined from the acquiring of the right of [38 Ariz. 501] way aforesaid, or the expenditure of public money thereon, or doing anything that would in any way impose any liability on the taxpayers of Apache county by reason of such alleged contract.

The complaint was filed February 23d, a demurrer thereto was filed February 27th, and an outside judge was called to sit in the case. From that time the record shows a peculiar condition. Although no answer had been filed, the case was submitted to the court on the same day on a stipulation of facts. The next day the demurrer was overruled; the day after findings of fact and an opinion were signed by the trial judge at Holbrook, and transmitted to the clerk of the court at St. Johns. A motion for new trial was filed March 10th. The next day the opinion and findings were filed. March 15th the United States district attorney filed a document which reads in part as follows:

"Suggestion of the United States of America. Filed

march 23, 1931.

"Comes now the United States of America, by John C. Gung'l, United States Attorney for the District of Arizona, who has heretofore been duly authorized by the Attorney General of the United States, appearing herein for the purpose of suggestion only, for the information of the Court, but explicitly refraining from submitting itself of any of its rights, property or policies to the jurisdiction thereof, does respectfully suggest to the Court, as follows: . . ."

On March 16th the clerk of the court gave notice of the filing of the opinion as provided by section 3697, Revised Code of 1928. The order

Page 346

overruling the motion for new trial was filed March 18th, while the clerk's minute entry of judgment on the opinion was made April 10th. The next day this appeal was taken. The reason for this rather unusual procedure is not shown, but in view of the presumption that public officers do their duty, we must assume some [38 Ariz. ...


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