[91 Ariz. 196] Robert Morrison, a former Atty. Gen., Wade Church, former Atty. Gen., and Leslie C. Hardy, his Chief Asst. Atty. Gen., Robert W. Pickrell, present Atty. Gen., for appellant Jewel W. Jordan, State Auditor, State of Arizona.
C. A. Muecke and Martin F. Keil, Phoenix, for appellants Carl Austin, C. J. Carreon, William J. Harkness, Neales Kennedy, Patrick W. O'Reilly, Robert A. Petrie, Del Rogers a. k. a. Delbert Delfino, Harry Ruppelius and Robert E. Wilson.
Stephen S. Gorey, Phoenix, for appellant Norman Lee.
W. L. Farringer, Phoenix, for appellant William Younger Wood.
Stockton & Aldrich, Phoenix, for appellant J. P. Stump.
William H. Rehnquist, Phoenix, for appellee David H. Campbell.
UDALL, Vice Chief Justice.
This is a taxpayer's action to recover for the State of Arizona certain expense reimbursements audited, paid out and received pursuant to a statute later held unconstitutional by this court in Giss v. Jordan, 82 Ariz. 152, 309 P.2d 779 (1957). From a summary judgment for plaintiff Campbell, defendants Jewel W Jordan, auditor for the State of Arizona, and thirteen members of the Twenty-second Legislature have appealed.
Since 1947 Arizona legislators have been reimbursed for necessary expenses incurred[91 Ariz. 197] during sessions of the legislature. 
But prior to 1956 amounts so expended by a legislator were restored to him only after compliance with what is now A.R.S. § 35-181 which provides in pertinent part:
'A. All claims against the state for obligations authorized, required or permitted to be incurred by any state officer or agency, shall be paid only in the following manner:
'The claimant shall present an itemized claim, sworn to by him and approved by the head official of each office or state agency under which the obligation was incurred * * *. The claim shall then be presented to the state auditor and, if approved, the auditor shall draw his warrant therefor on the state treasurer, who shall pay it when countersigned by the governor but only from the appropriation made therefor. * * *.'  (Emphasis added.)
On January 4, 1956, however, the Governor approved an amendment to the reimbursement statute (A.R.S. § 41-1103) subsections D and E of which read as follows
'D. Reimbursement of expenditures made under the provisions of subsections A, B and C of this section shall not be subject to the provisions of § 35-181.
'E. All payments provided for in this section shall be paid upon approval of the president of the senate or the speaker of the house of representatives from funds appropriated for the house of the legislature over which he presides.'  (Emphasis added.)
On February 27, 1956 plaintiff Campbell (who was also a member of the Twenty-second Legislature) wrote to the Attorney General and asked, inter alia:
'2. What penalty could be imposed on a member of the legislature from [91 Ariz. 198] Maricopa County when said member resides at his usual place of residence but draws $17.00 per day subsistence instead of $12.00 per day as set forth in Section 41-1103, A-1?' 
More correspondent between plaintiff Campbell and the Attorney General followed. In one letter the Attorney General admitted having seen a list of the legislators later named defendants in this action. Finally, on May 26, 1956 plaintiff wrote to and requested legal action by the Attorney General as follows:
'Under the provisions of Sections 35-211, 35-212 and 35-213 Arizona Revised Statutes, you are hereby requested to bring action against certain members of the Maricopa County delegation to the House of Representatives, who have received subsistence payments in excess of those authorized by Section 41-1103.
'The names of these members were given yur office in February, 1956. They were also publicly read into the Journal of the House for permanent record on February 22, 1956. Warrant
numbers, dates, and the amounts in question are on file in the office of the State Auditor. Receipts, as required by law prior to January 6, 1956, should also be on file in the State Auditor's office.'
The Attorney General did not act. Consequently, on August 24, 1956 plaintiff Campbell instituted his taxpayer's action pursuant to A.R.S. § 35-213.  The complaint is in two counts the first of which alleges overpayments in varying amounts to the several legislator-defendants all of whom were residents of Maricopa County during the times in question. The overpayments sought to be recovered in Count I represent to difference between the maximum daily expense allowance of $17 permitted a legislator 'not residing at his usual place of residence' during a session and the $12 daily ceiling imposed upon [91 Ariz. 199] one 'residing at his usual place of residence.' (See A.R.S. § 41-1103, subd. A, supra note 4.) Thus, in Count I each of the defendant-legislators is alleged to have received excessive expense reimbursement in an amount computed by multiplying $5 times the number of days for which he was reimbursed at the $17 rate.
Count II then alleges that all of the expense monies paid these defendants were improperly paid and received in that 'none of said defendants * * * complied with the provisions of 35-181, A.R.S.1956, in submitting their ...