Nasib Karam and James V. Robins, of Nogales, for appellant.
Frank J. Barry, Jr., former County Atty., Tucson, Ruffo Espinosa, County Atty., and William S. Reed, Deputy County Atty., Nogales, for appellees.
Evans, Hull, Kitchel & Jenckes, of Phoenix, for amicus curiae.
Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur.
[72 Ariz. 375] This is an action by plaintiff, appellant herein, against the defendants, members and clerk of the Board of Supervisors of Santa Cruz County, who are appellees herein. After the complaint was filed and later amended defendants moved to dismiss the amended complaint on the ground that it failed to state a claim upon which relief may be granted. The court thereupon granted the motion, ordering that the complaint be dismissed and entered judgment thereon. From that judgment and order, this appeal is now taken.
On November 30, 1948, an election was held in Santa Cruz county, at which time the residents of the county voted to authorize the issue of certain bonds with which to defray in part the cost of purchasing grounds for a "county hospital" and the erection of the hospital thereon.
On May 2, 1949, defendants met and adopted the following resolution: "It is declared to be the policy of the Board of Supervisors of Santa Cruz County, that the County Hospital to be built from the proceeds of the bonds which will be sold on May 2, 1949, will be built for all classes of patients, principally patients who are able to pay and will pay for their hospitalization and hospital service and that such hospital service is being provided for paying patients from all parts of Santa Cruz County including the 'Patagonia Area' and the Eastern part of the County." (Emphasis supplied)
It is undisputed that the said meeting was regular in all respects, that all the members of the said board were present and that the above quoted resolution has never been changed, amended or repealed.
Upon the filing of plaintiff's complaint, a temporary restraining order was issued enjoining defendants from taking further action on the said bond issue. In his complaint, plaintiff prayed for a permanent injunction, prohibiting defendants from proceeding further with the said county bond issue, and for a declaratory judgment adjudging defendants to be without power to use the proceeds of the bond issue for the construction of a hospital which is to be, as declared by the defendants, principally [72 Ariz. 376] for the use of patients who are able to pay and will pay for their hospitalization.
Plaintiff makes three assignments of error, which allege in substance that the trial court erred in granting defendants' motion to dismiss in that it appears from the amended complaint that plaintiff is an interested party and entitled to the relief prayed for and that unless defendants are enjoined from issuing the said bonds, they will wrongfully use the public funds obtained thereby, to wit: for the purpose of building a hospital, to be used principally for paying ...