LOUIE E. GAY, Appellant,
THE CITY OF GLENDALE, a Municipal Corporation, W. E. KALAS, Mayor of the City of Glendale, Arizona, and F. S. HEATWOLE, J. D. LYNCH, J. A. MILLER, W. F. MOORE, J. E. SMITH and JOE WHITNEY, as Individuals and as Members of the Common Council of the City of Glendale, a Municipal Corporation, and CLARENCE HAMMERBACKER, as Clerk and Treasurer of the City of Glendale, Arizona, a Municipal Corporation, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and case remanded for new trial.
Messrs. Gillum & Locke, for Appellant.
Messrs. Cunningham, Carson & Gibbons, for Appellees.
[41 Ariz. 208] LOCKWOOD, J.
Louie E. Gay, hereinafter called plaintiff, brought suit against the mayor and the members of the common council of the city of Glendale to recover from them certain sums of money which plaintiff alleged they had received illegally from the funds of the city. The city in its corporate capacity and the city treasurer are formal parties, but the real defendants are the mayor and councilmen, and we shall so style them hereinafter. Defendants answered admitting that they had received certain sums not in excess of the amount sued for from the city, but alleging that they were entitled thereto by reason of the provisions of chapter 92, Session Laws 1929, and Ordinance No. 4 (New Series) of the city of Glendale, passed in pursuance of said chapter. After various motions to strike and certain demurrers were disposed of, the matter finally came before the court on an agreed statement of facts, and judgment was [41 Ariz. 209] rendered dismissing the action. From this judgment, plaintiff has appealed.
There are two matters to be considered by us on the appeal. The first is one of procedure only. The trial court at one time ordered the demurrer of defendants to be overruled and the answer to be stricken, and issued an interlocutory order requiring them to account for the moneys drawn by them as set forth in the stipulation of facts, but thereafter set aside such interlocutory order and its previous rulings on the motions to strike and the demurrers, and finally determined the case on its merits. It is contended by plaintiff that the trial court erred in setting aside the interlocutory order granting an accounting because it was without authority to vacate such order. We think, however, we need say no more concerning this objection than that since trial courts have the right, under section 3859, Revised Code 1928, to vacate and set aside any order for good cause shown, if the final judgment for defendants was correct, that of itself would show that good cause existed for setting aside the order, while if on the facts and the law plaintiff was entitled to recover, the case should be disposed of on the merits to prevent, if possible, a second appeal.
We therefore consider the case upon its merits. The suit was brought by plaintiff in his capacity as a taxpayer on behalf of himself and all others similarly situated. The statement of facts on which the case was heard reads as follows:
". . . That the plaintiff is a taxpayer brings this action against the defendants W. E. Kalas, F. S. Heatwole, J. D. Lynch, J. A. Miller, W. F. Moore, J. E. Smith and Joe Whitney as individuals, and as members of the Common Council of the City of Glendale, Arizona, to enjoin them from receiving any further sums of money by way of compensation for [41 Ariz. 210] their services as such councilmen during their present terms of office, and to require them to account for and pay back into the treasury of the said City such monies as they have heretofore received by way of compensation.
"The City of Glendale, Arizona, is joined as a nominal party, and Clarence Hammerbacker, as Clerk and Treasurer of the said City of Glendale; that prior to the 2nd day of June, 1930, the said City as authorized by Chapter 92, Session Laws of 1929, changed to a City form of government; that six of the defendants were inducted into office on or about the 8th day of July, 1930; that at this time there was no city ordinance authorizing the payment of compensation to the Mayor and Common Councilmen of the said City; that on or about the 8th day of July, 1930, the said seven defendants composing the Mayor and Common Council of the City of Glendale, adopted an Ordinance granting compensation to themselves for their services as such Mayor and Councilmen at the rate of $5.00 per diem for the performance of official duties, but which said compensation was not to exceed $600.00 per year for the Mayor, and $300.00 per year for the councilmen, and that since that date they and each of them have received sums of money under said ordinance, not exceeding, however, $600.00 per year for the Mayor and $300.00 per year for the Councilmen."
The question presented by the foregoing statement of facts is whether or not as a matter of law the receipt by the defendants of the sums of money set forth in the stipulation is illegal. The stipulation is very meager, and omits many of the facts referred to by both plaintiff and defendants in their briefs, and upon which their respective arguments are based. There is no transcript of evidence accompanying the record, and for this reason, except in so far as we are required to take judicial notice of such omitted facts, we cannot consider arguments based thereon.
Combining such judicial notice with the stipulation, the material facts of the case may be stated as follows: [41 Ariz. 211] The town of Glendale was originally incorporated under the general law authorizing the incorporation of towns having a population of 500 or more inhabitants, and for may years continued its corporate
existence under such law. During the month of January, 1930, the qualified electors of Glendale, in pursuance of chapter 92, Session Laws of 1929, adopted a city from of government, and the defendants were inducted into office as mayor and councilmen of the new city at some time on or about the 8th of July. It does not appear whether they were newly elected as such, or assumed their offices by reason of the fact that they had previously been the members of the town council and so were ex-officio members of the new city council under chapter 92, supra, but we think that to be immaterial in any case. Up to this time no compensation of any nature for the mayor and common council was authorized by ordinance of the town or city of Glendale. After their induction into office the defendants adopted Ordinance No. 4 (New Series) of ...