STATE CONSOLIDATED PUBLISHING COMPANY, a Corporation and a Taxpayer of the City of Tucson, County of Pima, State of Arizona, Appellant,
BEN C. HILL, as City Attorney of Said City of Tucson; FRANK J. CORDIS, F. E. GERLACH, W. H. HART, E. D. ROCKWELL, P. M. ELIAS and GEORGE L. REID, as Councilmen of Said City of Tucson; C. E. PEQUIGNOT, as City Auditor of Said City of Tucson; and W. A. JULIAN, as Mayor of Said City of Tucson, Appellees
APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Reversed and remanded, with instructions to enter judgment for plaintiff.
Messrs. Linn & Allen, for Appellant.
Mr. Ben C. Hill, in pro. per., and for All Appellees.
[39 Ariz. 22] ROSS, J.
This action was brought by the State Consolidated Publishing Company, a corporation and a taxpayer of the city of Tucson, to recover for the city from Ben C. Hill, city attorney, and the mayor and common council and the auditor of said city, the sum of $2,000 paid to the said city attorney for special legal services rendered the city during the years 1928 and 1929; such sum being in addition to his regular annual salary of $4,200.
The theory upon which plaintiff seeks to recover said sum, as set forth in its complaint, is that the salary of $4,200 per annum, fixed by the city, is the official and only compensation the city attorney was entitled to be paid; that his appointment to and acceptance of the office at that salary by operation of law limited his compensation to that sum; or that, if he were an employee, it was implied by his contract of employment that he would do all the legal business ordinarily appertaining to such office for the stated and fixed sum of $4,200 per annum; and that the service he performed and for which he charged the city the $2,000 was within his agreed or implied duties as city attorney. It is further alleged that the payment of $2,000 to City Attorney Hill for special legal services was ultra vires and void: (1) Because the city budget for the fiscal year 1928-29 did not include [39 Ariz. 23] said sum, or any sum, for special legal services of the city attorney; (2) because the $2,000 paid the said city attorney was taken from the city's sinking fund, designated as bond interest fund and bond redemption fund, collected for the purpose of paying interest on the city's outstanding bonds and redeeming such bonds at maturity.
The defendants' answer was a general denial.
Judgment went in favor of defendants and against plaintiff, and the latter has appealed.
The facts are not in dispute and may be stated to be as follows: In October, 1928, it was discovered that the city treasurer of Tucson, George F. Gray, was short in his accounts with the city in the sum of $173,000. The mayor and common council of the city thereupon instructed City Attorney Hill to take full charge and to investigate the shortage and defalcation and to that end authorized him to employ all necessary help, including attorneys, accountants, detectives, etc., which he did. On or about April 16, 1929, Steward, Sawyer & Hart, who were Gray's bondsmen, paid into the city on account of said shortage $50,000. On the same day the Southern Arizona Bank & Trust Company, a depository of the city's, paid on such account, as a compromise on its asserted liability, $30,000, and on May 31, 1929, $23,844. All told, $103,844 was collected and paid to the city on account of the $173,000 defalcation. On April 20th City Attorney Hill presented to the mayor and common council a bill in the sum of $2,000 "for special legal services rendered in connection with the investigation of George F. Gray's defalcation and settlement with the Southern Arizona Bank and Trust Company," and on April 24th the claim was allowed and paid by the city.
Defendant Hill had been, under appointment by the mayor, the city attorney of Tucson continuously from January 1, 1921, up to and including the years 1928 [39 Ariz. 24] and 1929. In other words, he had received the appointment five times, for terms of two years each; his first appointment being January 1, 1921, and his last appointment January 1, 1929. His salary during the last two terms was fixed and paid him by the mayor and common council at $4,200 per annum. The trial court
found or stated that such salary was not fixed by any charter provision or ordinance of the city, but it is not questioned that the office of city attorney existed and that the city possessed the power to fix and pay the occupant a regular annual salary. It was also said by the trial court that the duties of city attorney were not prescribed or defined by the charter or any ordinance of the city. Because of the nature of the office and the well-known duties thereof, the omission to state or define them in the charter or ordinances, we think, is unimportant. It is a matter of common knowledge that the city attorney is the head of the legal department of the city. He stands to his city what the Attorney General stands to the state or the county attorney to the county. Generally his duties require him to represent the city in its litigation and to give legal advice to the heads of departments. Of course, his duties might be by charter or ordinance broadened or narrowed, but in the absence of a provision to that effect we would assume that they are such as customarily and generally appertain to the office of chief legal adviser of a city. As such legal adviser, one of his principal duties, it is obvious, was to assist the other officers of the city in preserving and safekeeping its funds, and to institute proceedings for their recovery when unlawfully diverted, paid out, or embezzled.
Most of appellant's assignments are directed at the court's refusal of its offer to prove the city attorney's engagement was one of contract; that he had agreed to do all the legal services usually and customarily [39 Ariz. 25] performed by such officer for the fixed salary of $4,200 per annum; and that what he did to recover the city's money from the defaulting treasurer primarily appertained to the office and its duties, and was covered by the salary. The court rejected this theory of employer and employee, and correctly so.
The position of city attorney is an office and its occupant an officer. He is appointed by the mayor; his term of office is two years; he is paid a salary on a yearly basis, regardless of the amount of work he does. He receives the same salary whether called upon once or a hundred times to ...