F. P. PERKINS, Plaintiff,
G. F. MANNING, Superintendent of Public Health of the State of Arizona, Defendant
Original proceeding in Mandamus. Alternative writ quashed.
Mr. Matt S. Walton, for Plaintiff.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for Defendant.
[59 Ariz. 61] LOCKWOOD, C.J.
F. P. Perkins, petitioner, applied for an original writ of mandamus in this court [59 Ariz. 62] directing G. F. Manning, as superintendent of health of the State of Arizona, respondent, to approve certain salary claims of petitioner against the state.
A stipulation of facts was filed, which shows substantially as follows: Petitioner was appointed by the Honorable R. T. Jones, then governor of Arizona, as superintendent of health for a term of two years, beginning the first Tuesday in April, 1940. He took office on that date and performed the duties thereof until September 25, 1940. In June, 1930, he had been appointed major in the National Guard of Arizona, and made regimental surgeon of the 158th Infantry, and continuously held such position up to said September 25. On that date the National Guard of Arizona was ordered by the President of the United States to active duty, and he left with his regiment for an army camp outside Arizona. Just prior to leaving the state he secured a ninety days leave of absence from the governor. Two days before the leave expired, he returned to Phoenix and to his office in that city and remained there for a week, at the expiration of which time he secured another ninety days leave of absence and returned to the army camp. A few days before that leave of absence expired he again returned to Phoenix and again remained in his office for a week, when he returned to the army camp, remaining there until the 16th day of June, 1941.
The legislature of Arizona, at its regular session in the spring of 1941, enacted a law (chapter 105, Session Laws of 1941) which, in effect, abolished petitioner's office, effective June 16, 1941.
Before leaving the state on each of the absences above referred to, petitioner had conferences with the heads of the several departments under his jurisdiction, and instructed them as to the manner of carrying out his policies as superintendent, and performing their duties, and from time to time, while absent, gave [59 Ariz. 63] them additional instructions by correspondence. He also performed a certain amount of the work of his office by correspondence and signed many official documents sent to him in camp. Once, during this period, he went to Washington as superintendent of the board of health, at the request of the surgeon general of the United States. During all of this period he received from the United States the customary compensation paid officers of his rank in the arm, and remained in the military service as aforesaid, and at the filing of his petition was still in said service. He gives as his reason for attempting to retain his position in both offices that the original call for induction into the army was indefinite as to term, and that he was at the time fifty-nine years of age, and uncertain whether he could pass the physical examination necessary to retain his military rank and position, or, if he did pass, whether he would continue physically fit for the service. It is upon this statement of facts that we are requested to determine whether it is the duty of respondent to approve the salary claims of petitioner as superintendent of health of the state of Arizona from September 25, 1940, to June 16, 1941.
Respondent raises two questions of procedure, the first being that the petition does not allege there was money in the state treasury available to pay petitioner's claim, and the second, that the petition shows on its face that it is barred by the statute of limitations, section 12-714, Arizona Code 1939, which provides, in effect, that suits for salary claims against the state must be filed within ninety days after such accrual. This proceeding was not commenced until December 2, 1941, and the last salary claim, if due at all, was due and payable on June 16.
So far as there being no money in the treasury is concerned, if this were an action to compel the auditor to issue a warrant it would be a good defense, [59 Ariz. 64] but we think it unnecessary for a claimant to allege
in his claim that the funds are on hand to pay it.
If it were not for one thing, the plea of the statute of limitations would be well taken. The Soldiers' and Sailors' Civil Relief act of 1940, Public No. 861, 76th Congress, section 205, 50 U.S.C. A. Appendix § 525, provides that the period spent in military service by a plaintiff in an action shall not be included in any period during which the statute of limitations runs. This statute has always been held a valid exercise of power by the federal government. Since during all of the period involved in this ...