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Barry v. Phoenix Union High School, Dist. of Maricopa County

Supreme Court of Arizona

September 20, 1948

BARRY
v.
PHOENIX UNION HIGH SCHOOL, DIST. OF MARICOPA COUNTY

Appeal from Superior Court, Maricopa County; Walter J. Thalheimer, Judge.

Mandamus proceeding by Phoenix Union High School, District of Maricopa County, Arizona, a body politic, against John H. Barry, as county school superintendent of Maricopa County, Arizona, to compel respondent to draw a warrant upon the county treasurer against the district school fund for partial payment for equipmeint for a school cafeteria. From the judgment, respondent appeals.

Judgment affirmed.

Kramer, Morrison, Roche & Perry, of Phoenix, for appellant.

Francis J. Donofrio, County Atty., Fred C. Struckmeyer, Jr., Deputy County Atty., both of Phoenix, for appellee.

Udall, Justice. Stanford, C. J., and LaPrade, J., concur.

OPINION

Udall, Justice.

Page 534

[67 Ariz. 386] Appellee, Phoenix Union High School District, (petitioner in the court below) sought and obtained a peremptory writ of mandamus directing appellant (respondent) John H. Barry as County School Superintendent of Maricopa County to draw a warrant upon the County Treasurer of such county against the school fund of the district in the sum of $ 10,638.45, payable to Arizona Hardware Company, in partial payment of equipment for the school cafeteria. (The parties will be hereinafter referred to as they were in the lower court.)

Respondent in defense of his refusal to issue the warrant challenged the right of petitioner to bring the action, and by his answer set forth other defenses hereinafter stated. Judgment having gone against him, after a trial on the merits, this appeal followed.

The respondent in his brief urges that the trial court erred in directing a peremptory writ of mandamus against him and in rendering judgment in favor of petitioner, because it appears upon the face of the petition and from the evidence that (a) petitioner is not the party beneficially interested in the action, the real party in interest being the Arizona Hardware Company, a private corporation; (b) that this proposed expenditure was not included within petitioner's high school budget as is required by law; (c) the petitioner does not operate the cafeteria, or lunch room for which the equipment in question was purchased but, without authority of law, rents the same to a voluntary unincorporated association of high school students.

We shall consider these propositions in the above order. The first objection, which evidently is the assignment principally relied upon, raises a procedural question as to the form of action, while the other two go to its substance.

Section 28-201, A.C.A.1939, reads in part as follows: "The writ of mandamus may be issued by the supreme or superior court on the verified complaint of the party beneficially interested * * *."

The respondent contends that a school district is not the proper party to obtain mandamus compelling the payment of its funds to one of its creditors; he urges that the creditor and not the district should have brought the action. In support of this position we are cited to a score of cases, from this jurisdiction where creditors have brought mandamus actions against the State Auditor, for example see Clark ...


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