HARRY O. JULIANI, Appellant,
R. G. DARROW, Trustee of the Town of South Tucson, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Henry C. Kelly, Judge. Judgment affirmed in part and reversed in part.
Mr. John L. Van Buskirk and Mr. Harry O. Juliani, for Appellant.
Messrs. Misbaugh & Fickett, Messrs. Krucker & Fowler and Mr. H. C. Diehl, Jr., for Appellee.
[58 Ariz. 298] McALISTER, J.
This is an action by Harry O. Juliani against R. G. Darrow, trustee of the Town of South Tucson, to recover his salary as attorney for that municipality for the period, January 1, 1938, to November 28, 1938, and from a judgment for the defendant he appeals. The parties will be referred to hereafter as plaintiff and defendant.
The Town of South Tucson became a municipal corporation on August 10, 1936, by an order of the board of supervisors of Pima County, made pursuant to the provisions of section 16-201, Arizona Code 1939, but by an order of the same board entered in accordance with the provisions
of section 16-219, Arizona Code 1939, it was disincorporated on January 18, 1938, and a trustee, R. G. Darrow, defendant, appointed with authority "to wind up the affairs of the corporation, sell and convey its property, real and personal, pay the debts of the town, and return the surplus of the proceeds of the property of the town into the county treasury, to be there disposed of for the improvement of roads in the vicinity wherein such town is situated."
The town contested the order of disincorporation by an action against the board of supervisors in the Superior Court of Pima County in which it also asked for and secured an order restraining the board and the trustee, Darrow, from interfering with the town's [58 Ariz. 299] municipal functions pending its decision. On April 23, 1938, the superior court rendered a judgment upholding the order of disincorporation. That judgment was immediately taken to the Supreme Court for review and on November 28, 1938, was affirmed. Town of South Tucson v. Board of Supervisors, 52 Ariz. 575, 84 P.2d 581. The complaint alleges that from January 18, 1938, the day the order of disincorporation was entered, up to the date of action by the Supreme Court, the Town of South Tucson carried on its normal municipal functions.
The plaintiff, the town's regular attorney, and John L. Van Buskirk represented it in that case in both courts and also looked after other litigation for it which arose subsequent to the order of disincorporation. The plaintiff alleges that he was attorney for the municipality from June 26, 1937, to November 28, 1938, and that his salary was $50 per month until June 30, 1938, when it was set at $75 per month. He further avers that he was paid for all of this period except that from January 1 to November 28, 1938, during Which he earned $670. It is this balance he seeks to recover.
Two defenses are interposed by the defendant. One is directed to the $35 earned by him during the first eighteen days of January, 1938, and prior to the order of disincorporation, and the other to the $640 claimed to have been earned after disincorporation, that is, from January 18, 1938, to November 28, 1938.
Plaintiff's contention relative to the services rendered after January 18th, is that certain orders of the superior court made following disincorporation continued the Town of South Tucson as a de facto municipal corporation and that services rendered it by him after the action of the board was a legal charge against the assets held by the trustee. In Darrow v. Van Buskirk, 57 Ariz. 1, 110 P.2d 216, 217, [58 Ariz. 300] an action for recovery of the legal services rendered the town by Van Buskirk as special counsel after disincorporation, the court declined to uphold this view for the reason that "litigation thereafter testing the legality of the board's order did not have the effect of resuscitating or revitalizing the town," (citing authorities), that the town was effectively and legally disincorporated on January 18, 1938, under the decision in Town of South Tucson v. Board of Supervisors, 52 Ariz. 575, 84 P.2d 581, and that while the officers might thereafter contest the order of disincorporation in the town's name, they could not incur debts which would bind its assets in the hands of the statutory trustee. Those funds could be used only to "pay the debts of the town," and any surplus, the statute requires, must be returned "into the county treasury, to be there disposed of for the improvement of roads in the vicinity wherein such town is situated," though the trustee, through permission of the court, might incur obligations when necessary to protect or preserve the property owned by the town at the time of its disincorporation.
This leaves for consideration the question, whether plaintiff may recover for his services for the last eighteen days the town had life as a municipal corporation that is January 1 to January 18, 1938. Defendant contends that he cannot, for these three reasons: (1) He was a public officer, the town attorney of the Town of South Tucson, and was neither a resident nor elector of the town during any of this period; (2) the town did not ...