APPEAL from a judgment of the Superior Court of the County of Maricopa.
Arthur T. LaPrade, Judge. Judgment reversed and case remanded with instructions.
Mr. P. H. Brooks, for Appellant.
Mr. E. G. Frazier and Mr. M. C. Burk, for Defendant James H. Kerby.
Messrs. Stahl & Murphy, for Defendant Maryland Casualty Company.
[56 Ariz. 132] LOCKWOOD, J.
Sims Printing Company, a corporation, hereinafter called plaintiff, brought suit against James H. Kerby, hereinafter called defendant, and Maryland Casualty Company, a corporate surety company, hereinafter called surety, to recover the sum of $1,846.20, being the amount expended by plaintiff in connection with a certain contract entered into by it with defendant in his official capacity as Secretary of State of the state of Arizona. Defendant and the surety demurred to the complaint and the demurrer being sustained, plaintiff elected to stand upon its complaint, whereupon judgment was rendered in favor of defendant and the surety, and this appeal is before us.
This action arose out of the situation set forth in the case of Sims Printing Co. v. Frohmiller, 54 Ariz. 64, 92 P.2d 334. We take judicial notice of all other proceedings in this court and the record [56 Ariz. 133] therein. Stewart v. Phoenix Nat.Bank, 49 Ariz. 34, 64 P.2d 101; Engle v. Clark, 53 Ariz. 472, 90 P.2d 994. The statement of facts is, therefore, based both on the record in this case and that in Sims Printing Co. v. Frohmiller, supra.
In 1938 defendant was the Secretary of State of the state of Arizona. Under the law it was his duty to cause the publication of a pamphlet setting forth the initiative and referendum measures to be submitted to the voters at the regular general election in that year. Section 1746, Rev. Code 1928, as amended by chap. 62, Sess. Laws of 1935. He entered into a contract with plaintiff to do this work, and when the copy for the pamphlet was submitted to it, defendant included therein one amendment to the Constitution, and two initiative measures that had been proposed by the people during the year 1936, but which had not been submitted at the general election held in that year, for reasons which are set forth in Kerby v. Griffin, 48 Ariz. 434, 62 P.2d 1131. The auditor refused to approve any payment to plaintiff for the seventeen pages which contained
the measures last referred to, and the matter was brought before us in Sims Printing Co. v. Frohmiller, supra. Therein we held that it was improper to include such measures in a publicity pamphlet setting forth the measures to be submitted at the 1938 regular general election, and sustained the conduct of the auditor in refusing to approve a claim therefor against the state. In that opinion we said [54 Ariz. 64, 92 P.2d 335]:
"... We conclude that the constitution means what it says and that the secretary of state was without power or authority to submit the 1936 proposed legislation by the people at the 1938 regular general election, and therefore he had no right to incur the expense for the publication of such proposed legislation.
[56 Ariz. 134] "... But the claim here was not authorized or permitted. Its incurrence by the secretary can find no sanction anywhere. It is too bad that the plaintiff should have rendered valuable service and not be recompensed therefor. The remedy open to plaintiff, if it has one at all, is against the person who procured the ...