Ruskin Lines, County Atty., Safford, for appellant.
Max T. Layton, Safford, for appellee.
[76 Ariz. 276] UDALL, Justice.
E. R. McBride, Sheriff of Graham County, on January 1, 1953 appointed his cousin, J. W. Buhl, a deputy-sheriff at a salary of $300 per month. The latter demanded his salary but the Board of Supervisors of Graham County, acting under the advice of their county attorney, refused to pay it on the ground the appointment was in violation of our nepotism law. Buhl, as plaintiff, then brought suit against Graham County to recover his salary. After trial, judgment for plaintiff was entered and defendant appeals. We shall hereafter refer to appellant as defendant and to appellee as plaintiff.
Section 56-105, A.C.A.1939 makes the employment of relatives within certain degrees unlawful. Insofar as applicable, this section reads as follows:
'It shall be unlawful for any executive * * * officer to appoint * * * any person related to him by affinity or consanguinity within the third degree, to any * * * employment * * * in any department of the * * * county * * * of which such executive * * * officer is a member, when the salary * * * of such appointee is to be paid out of the public funds * * *.' (Emphasis supplied.)
A violation of this statute is made a misdemeanor.
It is admitted that the sheriff and plaintiff are related by consanguinity and are first cousins, having common grandparents.
Defendant's sole assignment of error is that the trial court used the wrong yardstick in determining the degree of relationship. Its contention is that the common law or canon law, rather than the civil law method of computing degrees of consanguinity should be applied in interpreting Section 56-105, supra. An examination of our various statutes dealing with relationships will disclose that in some instances the legislature specifically designated the prohibited relationships, but in none of them has the legislature said which of the two rules is to be followed. See, Section 39-101 et seq., A.C.A.1939, descent and distribution; Section 41-108 dealing with children as 'descendants of every degree'; Section 38-401, Administrators--order of preference; Sections 37-103 and 44-1313, disqualification of jurors 'within the fourth degree'; Section 21-107, change of judge where he 'is of kin or related to either party'; Section 63-107, persons who may intermarry;
and Section 54-416(3), school trustees prohibited from employing relatives within the second degree.
The whole basis of defendant's contention is that inasmuch as the legislature in adopting the anti-nepotism law, Section 56-105, supra, did not spell out the method to be followed in computing degrees of relationship, the common law governs. It relies upon Section 1-106, A.C.A.1939, which provides:
'The common law, so far only as it is consistent with, and adapted to the [76 Ariz. 277] natural and physical conditions of this state, and the necessities of the people thereof, and not repugnant to, or inconsistent with * * * established customs of the people of this state, is hereby adopted and shall be the rule of decision in all courts of this state.'
If the canon law method of computing degrees is followed, the trial court was in error, for the sheriff and his deputy would come within the second degree, as in applying this rule you begin with the common ancestor and reckon downwards, and in whatever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree within which they are related to each other. Whereas, under the civil law rule as applied to the instant case, we begin with plaintiff and trace upwards to the common ancestor and then trace downwards to the sheriff. If this method of computation is the correct one, the parties are related within the fourth degree, hence the appointment would be valid and the judgment of the lower court correct. See 4 Kent's Comm. (star page) 412, Fourteenth Ed. page 473. For explanation and diagram of both rules, see Cooley's Blackstone, Book II, Chapter XIV, (star page) 200, or Bouvier's Law Dictionary, Rawles Third Revision, Consanguinity.
Plaintiff primarily relies upon the case of Barton v. Alexander, 27 Idaho 286, 148 P. 471, Ann.Cas.1917D, 729. In this opinion the Idaho court was among the first to uphold the constitutionality of an anti-nepotism Act enacted under the police power of the state for the purpose of improving the efficiency of public service and discouraging the practice of making appointments upon considerations other than the merit or ability of the appointees. See also Annotation 88 A.L.R. 1103. However, the validity of our Act is not questioned on this appeal, and the Barton case, supra, is of no help in determining whether to apply the civil or canonical rule, because the Idaho statute expressly provides degrees of kindred are to be computed according to the rules of the civil law.
The Supreme Court of Ohio, in Clayton v. Drake,
17 Ohio St. 367, 368, faced the problem of whether the canon law or the civil law method of computing degrees of ...