A. G. AUSTIN and HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, and HUGH C. GILBERT and PACIFIC INDEMNITY COMPANY, a Corporation, Appellants,
SAM BARRETT, Appellee
APPEAL from judgments of the Superior Court of the County of Maricopa. Henry C. Kelly, Judge. Judgments affirmed as modified.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellants.
Messrs. Flanigan & Fields, for Appellee.
[41 Ariz. 140] LOCKWOOD, J.
Sam Barrett, hereinafter called plaintiff, brought two separate suits under sections 790 and 791, Revised Code 1928, the one against Hugh C. Gilbert, then and for some time previously a member of the board of supervisors of Maricopa county, and his official bondsman, Pacific Indemnity Company, a corporation, and the other against A. G. Austin, also a member of such board of supervisors, and his official bondsman, Hartford Accident & Indemnity Company, a corporation. By stipulation of the parties, since the legal issues involved were identical, the cases were consolidated and tried together. Judgment was rendered in favor of plaintiff against defendant Gilbert and his bondsman in the sum of $484.40, and against Austin and his bondsman in the sum of $800.40, together with the statutory interest, penalty, attorney's fees, and costs, and from said judgments this appeal has been taken.
The essential facts of the case are in no manner in dispute, and may be stated as follows: Gilbert and Austin were and are members of the board of supervisors of Maricopa county, the former residing near Glendale, in supervisorial district No. 2, and the latter in Chandler, which is in supervisorial district No. 1. The distance from Gilbert's residence to the office of the board of supervisors in Phoenix is 14 miles, and from Austin's residence to such office is 23 miles. During their incumbency of their offices, and before the beginning of this action, each of them had presented to the board of supervisors demands against Maricopa county for a large sum of money on the theory that they were entitled to mileage while traveling from their respective residences to the office of the board of supervisors in Phoenix for the purpose of attending official meetings of such [41 Ariz. 141] board. The total amount allowed and paid to Austin on such claims was $2,800.80, and to Gilbert $1,805, and the suits involved herein were brought by plaintiff to recover the amounts so paid, on the ground that they were not legal charges against the county.
Defendants demurred to the greater portion of said claims for refund on the ground that they were barred by the statute of limitations, which demurrers were by the trial court sustained, except as to the amounts of $484.40 and $800.40, respectively, and the case was determined as to such last-named amounts on the question of whether as a matter of law supervisors are entitled to be paid mileage for the distance necessarily traveled by them to and from their residences to the place where the board of supervisors is required by law to hold its official meetings.
The first and principal rule to be followed, in determining whether a claim against a county is legal, is that the person making the claim must show some statute affirmatively authorizing it, either directly or by reasonable implication. County of Santa Cruz v. Barnes, 9 Ariz. 42, 76 P. 621. And the right of an officer to demand expenses incurred by him in the performance of his official duty is no exception to the rule. Mackenzie v. Douglas County, 81 Or. 442, 159 P. 625, 1033; Parsons v. Waukesha County, 83 Wis. 288, 53 N.W. 507. All other considerations are subordinate to these. Nor, indeed, is this disputed by defendants. It is their claim, however, that the Arizona statutes do authorize the allowance of such mileage, and in support thereof they cite the following sections of the Revised Code of 1928:
"§ 776. . . . The expense of maintaining the government consists of official salaries, fees and mileage, fees and mileage of jurors. . . ."
"§ 889. . . . The following are county charges: . . . The salaries of all county and precinct officers, [41 Ariz. 142] their deputies and employees and the necessary expenses incurred by them in the conduct of their offices. . . . The contingent expenses necessarily incurred for the use and benefit of the county; every other sum directed by law to be raised for any county purpose or declared to be a county charge. . . ."
"§ 2803. Mileage and traveling expenses. Whenever mileage is allowed to a public officer, it shall be for each mile necessarily traveled in the discharge of his official duties, and shall be computed, unless otherwise provided, where public transportation is used, at the amount actually paid by the officer; if a private vehicle is necessarily used, such officer shall receive ten cents for each mile, to be estimated on the most direct public route. . . ."
It is admitted that there is no provision of our statute which specifically authorizes supervisors to be paid either mileage or their actual expenses while traveling in the discharge of their duties, much less when they are going from their places of residence to the place fixed by law for their official meetings. But it is claimed that the sections of the Code above quoted by implication authorize such payment. The question then is: Do our statutes reasonably ...