Appeal from Superior Court, Maricopa County; James A. Walsh, Judge.
P. H. Brooks, of Winslow, for appellant.
T. G. McKesson and T. P. Riordan, both of Phoenix, for appellee James H. Kerby.
Snell, Strouss & Wilmer, of Phoenix, for appellee Ana Frohmiller.
Cunningham & Carson, of Phoenix, for appellee Wm. M. Cox.
Stahl & Murphy, of Phoenix, for appellee Maryland Casualty Co.
Moore, Romley & Roca, of Phoenix, for appellee Metropolitan Casualty Ins. Co. of New York.
Kramer, Morrison, Roche & Perry, of Phoenix, for appellee Fidelity & Deposit Co. of Maryland.
Windes, Superior Judge. Stanford, C. J., and Udall, J., concur. La Prade, J., having disqualified himself, the Honorable Dudley W. Windes, Judge of Superior Court of Maricopa County, was called to sit in his stead.
Windes, Superior Judge.
[65 Ariz. 297] This is a suit by the appellant, a taxpayer, hereafter designated plaintiff, against the appellees, Secretary of State, et al., hereafter designated defendants. The facts are not in dispute. In the year 1933 the legislature made a lump sum appropriation for the Office of Secretary of State for the fiscal years 1933-34 and 1934-35 in the aggregate amount of $ 44,458, for salaries and wages; for printing session laws; for operation; for initiative and referendum expense. Defendant James H. Kerby, the then secretary of state, used the entire appropriation with the exception of a small item of $ 48.20 for purposes other than those designated in the appropriation for initiative and referendum expense, and spent for the latter item the additional sum of $ 59,794.41. Defendant State Auditor approved the claims and defendant Cox, the then State Treasurer, paid the same with state funds. The action is to recover the amount expended over and above the appropriation upon the ground it was an illegal expenditure of public funds without legislative appropriation. The lower court rendered a summary judgment against the plaintiff.
The issue of law is clear-cut. Plaintiff contends that since there was no legislative appropriation for the expenditures, they were without authority of law and he should recover. Defendants contend that since the Constitution itself, art. 4, pt. 1, § 1, requires the secretary of state to perform the duties for which the expenditures were made, there was no necessity for legislative appropriation. In other words, defendants' position is that since the Constitution requires the secretary of state to ...