APPEAL from a judgment of the Superior Court of the County of Maricopa. John P. Clark, Judge. Judgment reversed.
Mr. John W. Corbin, County Attorney, and Mr. Lin H. Orme, Jr., his Deputy, for Appellant.
Messrs. Townsend & Jenckes, Mr. Stanley A. Jerman, Messrs. Baker & Whitney, Mr. Lawrence L. Howe, Messrs. Struckmeyer & Flynn, Mr. Herman Lewkowitz, Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, Messrs. Minne & Sorenson and Messrs. Cox & Moore, for Appellee Rodgers.
[52 Ariz. 20] LOCKWOOD, J.
The County of Maricopa, hereinafter called plaintiff, brought suit against G. A. Rodgers, one of the judges of the superior court of the state of Arizona, in and for Maricopa county, and C. W. Peterson, George Frye, and John A. Foote, as members of the board of supervisors of said county, hereinafter called defendants, under the provisions of section 790, Revised Code of 1928, to recover certain money which it was alleged the supervisors had, without authority of law, paid out of the county treasury to defendant Rodgers. The facts set up by the complaint and necessary for a determination of this action are in nowise in dispute, and were agreed upon by the parties to be as follows:
The superior court of Maricopa county, as it is commonly, though not strictly legally, called, during [52 Ariz. 21] all the times involved in tis action, had four members. Judges PHELPS, SPEAKMAN, and NILES were elected in November, 1930, taking office on the first Monday in January, 1931, and held office under such terms continuously from the said first Monday in January, 1931, to the first Monday in January. 1935, at which time, all of them having been re-elected to their positions in the fall of 1934, began new terms of office. Defendant Rodgers was elected to his office in November, 1932, succeeding Judge JENCKES, and his term commenced on the First Monday in January, 1933, and ended on the first Monday in January, 1937. At the time the three judges took office in 1931, the salary fixed for each member of the superior court of Maricopa county was $5,500 per year, and this continued to be the salary fixed by law when defendant Rodgers took office in 1933. At that time, therefore, all of the judges of the superior court of Maricopa county were drawing the same salary, to wit, $5,500 per year. The legislature, by chapter 41 of the Session Laws of 1933, which was adopted after defendant Rodgers took office in January, 1933, while the other three judges were in the middle of their four-year terms, to take effect the first Monday in January, 1935, reduced the salary of the judges of the superior court of Maricopa county to $4,400 per year. Judges PHELPS, SPEAKMAN, and NILES were paid during their terms, beginning on said first Monday in January, 1935, at the rate of $4,400 per year, under chapter 41, supra, it being admitted that this was the salary due them. Defendant Rodgers, however, insisted that, notwithstanding his associates were drawing their salary at a lessened rate, he was entitled to continue drawing a salary at the rate of $5,500 per year until his term expired. The other defendants paid defendant Rodgers the salary at the rate insisted upon by him for the years 1935 and 1936, [52 Ariz. 22] but a doubt arising in their minds as to the legality of this, the county brought suit under section 790, supra, to recover all of what it claimed to be excess payment of salary to defendant Rodgers. A demurrer was interposed to the complaint, so far as all payments made more than one year before the filing of the complaint was concerned, on the ground that the statute of limitations had run against the county. (Revised Code of 1928, § 2058, subd. 3.) This plea was sustained by the court, and the only issue remaining was the amount which had been paid within the year. After considering the matter, the superior court held that chapter 41, supra, was unconstitutional, illegal, and void, in that it contravened section 24 of article 6 of the Constitution of Arizona, and was, therefore, unconstitutional, at least in so far as it applied to defendant Rodgers, and the county has brought this matter before us for review.
So far as the statute of limitations is concerned, we have recently decided in the case of City of Bisbee v. Cochise County, ante, p. 1, 78 P.2d 982, just decided, after an exhaustive consideration of the entire question, that where the recovery of public money due a political subdivision of the state is concerned, the rule of nullum tempus occurrit regi, as reiterated and confirmed by the legislature in section 2056, Revised Code of 1928, applies, and that the plea of the statute of limitations may not be made against such a claim. It is not necessary for us, in this opinion, to repeat what was said in the case just cited, but we necessarily hold the plea of the statute of limitations should have been overruled.
The sole remaining question then is, Was Judge RODGERS entitled to be paid during the period above referred to at the rate of $4,400 per year, or, as he claims, at the rate of $5,500 per year, under the [52 Ariz. 23] facts as stated above? The answer depends upon the construction of section 24, article 6, and section 17, part 2 of article 4, of the Constitution. The first section referred to reads as follows:
"No change made by the legislature in the number of judges shall work the removal of any judge from office; and no judge's salary shall be reduced
during the term of office for which he was elected."
The second originally read as follows:
"The Legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, after the services shall have been rendered or the contract entered into, nor shall the compensation of any public officer be ...