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McCarthy v. State ex rel. Harless

Supreme Court of Arizona

April 22, 1940

ROY McCARTHY, Appellant,
v.
THE STATE OF ARIZONA ex Rel. RICHARD F. HARLESS, County Attorney of Maricopa County, Arizona, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.

Mr. Richard F. Harless, County Attorney, and Mr. Leslie C. Hardy, Deputy County Attorney, for Appellee.

Messrs. Struckmeyer & Flynn, for Appellee.

OPINION

Page 450

[55 Ariz. 330] UDALL, Superior Judge.

This action was one of quo warranto, instituted by the State of Arizona at the relation of the County Attorney of Maricopa County to try the title of Roy McCarthy, defendant [55 Ariz. 331] in the lower court and hereinafter referred to as appellant, to the office of member of the Board of Supervisors of Maricopa County. The appeal seeks a review of the judgment of the superior court, entered on plaintiff's motion for judgment on the pleadings, whereby appellant was ousted and excluded from the office of member of said Board of Superviours.

The factual situation as shown by the pleadings is as follows: Prior to June 23, 1939, C. Warren Peterson, John A. Foote, and George Frye were the duly elected and qualified members of the Board of Supervisors of Maricopa county, and appellant Roy McCarthy was a citizen member of the Maricopa County Board of Social Security and Public Welfare, hereinafter referred to as the welfare board, he having been appointed as such pursuant to section 10, chapter 69, Laws of the Regular Session, 1937, and furthermore during all the times here involved Supervisor Foote was also a member of the welfare board, both serving by appointment of the Board of Supervisors.

Supervisor C. Warren Peterson on June 22, 1939, tendered his resignation as a member of said board and on the following day, at a regularly called meeting, his resignation was accepted by the remaining two members. On this same day, June 23, 1939, pursuant to the provisions of section 768, Revised Code of Arizona 1928, the remaining two supervisors, John A. Foote and George Frye, together with the County Recorder Roger G. Laveen convened for the purpose of appointing a supervisor for the unexpired term of Mr. Peterson. The appellant Roy McCarthy was nominated by Supervisor Foote and Supervisor Frye nominated one Floyd Marler. By a vote of Supervisor Foote and Recorder Laveen, McCarthy was appointed supervisor, and on the same date he took and filed the oath and bond required by law, and continued [55 Ariz. 332] to fulfill the duties of supervisor until ousted by the judgment of the trial court.

On June 23, 1939, the appellant filed his resignation as a member of the welfare board with said last-named board, and at a meeting held on that date, with members John A. Foote and R. M. Jamison present, and with appellant absent, the resignation was unanimously accepted. This resignation was not filed with the Borad of Supervisors of Maricopa county until June 24, 1939, and no affirmative action on said resignation was ever taken thereafter by the remaining two supervisors; but at a special meeting held on June 26, 1939, with Supervisors Foote and Frye, and also appellant McCarthy being present, the clerk presented appellant's resignation and same was spread upon the minutes of that meeting.

On July 3, 1939, being the regular monthly meeting date fixed by law, section 770, Revised Code of Arizona 1928, the Board of Superviours convened, with Supervisor Foote and appellant McCarthy present and member Frye absent, and appointed one E. A. Stanford to succeed appellant as a member of the welfare board, and said Stanford immediately

Page 451

qualified and has ever since fulfilled the duties thereof. On July 3, 1939, Supervisor Foote and County Recorder Laveen again convened for the purpose of selecting a member of the Board of Supervisors to fill the vacancy created by Peterson's resignation and they, with Supervisor Frye still absent, again purported to appoint appellant as Supervisor of Maricopa county, the latter, following this re-appointment, forthwith took the oath of office and filed a new bond.

Under the facts recited above, it is the contention of the State of Arizona, appellee herein, that the appellant was ineligible for appointment to the Board of Supervisors on either of the dates he was purportedly [55 Ariz. 333] appointed, for the reason that he was still a member of the welfare board, his resignation as such not having been lawfully accepted, and that his purported appointment to that office by Supervisor Foote and County Recorder Laveen was without authority of law and consequently null and void. The appellant, on the other hand, maintains (a) that at the time of his appointment as supervisor he had resigned from the welfare board and his resignation had been impliedly accepted, (b) or that in any event by qualifying as supervisor he ipso facto vacated his membership on the welfare board, and that his appointment was, therefore, valid.

There are but four assignments of error, which will be considered as seems best without reference to their numerical order.

The statute creating county boards of supervisors and prescribing their qualifications, is section 766, Revised Code of ...


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