127 P. 758 | Ariz. | 1912
The appellee, Geo. B. Wilcox, brought this action against Cochise county for the recovery of $1,317.85 alleged to be due him for services rendered as clerk of the district court of the second judicial district of the territory of Arizona between the fifth day of July, 1907, and the sixteenth day of February, 1909, in the matter of suits brought in said court for the collection of delinquent taxes, after his formal demand therefor had been presented to the board of supervisors of said Cochise county on June 6, 1910, and by said board disallowed in toto. The county interposed a general demurrer to the plaintiff’s complaint, which demurrer was overruled, and the defendant county electing to stand upon its demurrer, judgment was rendered
The complaint shows on its face that the last item of appellee’s claim accrued February 16,1909, and that his itemized account and demand therefor in writing, duly verified by the affidavit of appellee, was presented to the board of supervisors of Cochise county for allowance more than six months after the last item of said account accrued, viz., June 6, 1910. For this reason appellant contends that no cause of action is stated, and its demurrer should have been sustained and judgment rendered for the defendant, while the position of appellee is that the six months’ period prescribed in paragraph 989 of the Revised Statutes of 1901, for presenting a claim for allowance to the board of supervisors, is a law of limitation and cannot avail appellant because it has not been specially pleaded as a defense as provided by paragraph 2968 of the Revised Statutes of 1901. Appellee contends further that the term “official salary” includes “fees,” which brings him within the exception in paragraph 989. The only error assigned is the order overruling the demurrer, and, if appellant’s contention is sound, the ruling cannot be sustained.
Was the action of the board of supervisors disallowing appellee’s claim correct? Paragraph 989 (section 62) provides: “Every person having a claim against any county in this territory, excepting those referred to in the provisions of this section, shall, within six months after the last item of the account accrues, present a demand therefor, in writing, to the board of supervisors of the county against which such claim or demand is held, verified by the affidavit of himself or agent, stating minutely what the claim is for, and specifying each several item and the date and amount thereof: Provided, that nothing herein shall be held to apply to the claims for compensation due to jurors and witnesses, and for official salaries, which, by some express provision of law, is made a demand against the county.” If a written demand for clerk’s fees, verified by the affidavit of the claimant or his agent, and stating minutely what the claim is for, and specifying each several item and the date and amount thereof, be presented to the board of supervisors for allowance more than six months after the last item of the account accrues, what can the board do? The answer is found in paragraph 993, which reads as
Paragraph 988 provides: “No payment shall hereafter be made from the treasury of the counties of this territory unless the claim or demand shall be duly allowed according to the provisions of this title.” Title 14, chapter 2, Revised Statutes of 1901, entitled “County Government,” in which the sections quoted above are found, provides for the manner of establishing and enforcing claims against a county, and this court held in Yavapai County v. O’Neill, 3 Ariz. 363, 29 Pac. 430, that the remedy there prescribed was exclusive, using this language: “Presentation of every claim against the county to the board of supervisors for its action should be a condition precedent to the maintenance by the claimant of an action thereon; that the remedy so prescribed for the establishment and enforcement of claims for money against a county is exclusive.” Not having followed the exclusive remedy prescribed by statute for the establishment and enforcement of his claim, appellee cannot now be heard to complain of the
Does the term “official salary,” as used in section -989, include the word “fees”? At the time the fees in question in this action were earned, the compensation of appellee, as clerk of the district court, was a stated salary per month, together with the fees prescribed by statute, which were paid in civil actions by the litigants, and in nearly all criminal actions by the county. When a demand for fees due the clerk was presented to the board of supervisors for consideration, it was necessary that every item be checked, and, if any erroneous charges appeared thereon, that they be deducted. It sometimes happened that extrinsic evidence was necessary to determine the correctness of a particular item or items of a clerk’s fee bill. This being true, the reason for the existence of the statute requiring a claimant to presént his demand for allowance within six months after the last item of the account accrues is just as apparent in the case of a demand for clerk’s fees as it would be for any claim for particular services rendered at irregular periods. The legislature evidently intended that a claim for services rendered the county by a clerk of the court, or any other person, should be presented to the board for allowance before such a time could elapse as to make it difficult to produce the evidence necessary to establish its correctness. The terms “salary” and “fees,” as used in this connection, have, we think, the meaning usually attached to these words. What do they ordinarily signify? Salary: “A periodical allowance made as compensation to a person for his official or professional services, or for his regular work.” Standard Dictionary. Pee: “A payment for services done or. to be done, usually for professional or special service, the amount being sometimes fixed by law or custom and sometimes optional.” Id. “The distinction between salary and fees recognized by all the authorities is this: A salary is a fixed compensation for regular work, while fees are compensation for particular- services rendered at irregular periods, payable at the time the services are rendered.” Board of Supervisors v. Trowbridge, 42 Colo. 449, 95 Pac. 554. “By the ordinary acceptation of the term ‘fees,’ as heretofore and now used in the statute, we understand it to signify compensation or remuneration for particular acts or services rendered
Is the limitation prescribed in section 989 a “law of limitation” within the meaning of paragraph 2968, Revised Statutes of 1901? As we have seen, the board of supervisors has no authority whatever either “to hear or consider” a claim not presented for allowance within six months after the last item of the account accrues, and that in such a case the only order the board has jurisdiction to enter is one of “rejection or disallowance”; presentation within the stated six months being a condition precedent to the right even to “hear or consider.”
Counsel for appellee argues that by the term “accrues,” as used in paragraph 989, is meant the time when demand for allowance is made, and that limitation does not begin to run until that date. If demand marks the beginning of the six months’ period, the running of the statute ceases the moment it begins, and consequently the limitation in section 989 has no reason for existence when applied to a ease of the nature of the one we are considering. Between the date of the accrual of the last item of the account and the time of presentation for allowance, which is demand, a period of six months may elapse. This being true, there is no construction of which the term “accrues” is susceptible that would render it the
We will not discuss the contention of appellee that the fees alleged to be due him are those provided by the legislation of Congress for the guidance of clerks of circuit and United States district courts, and consequently that Act 92 of the Twenty-second Legislature, providing that in delinquent tax cases the clerk’s fees shall be taxed as costs, but that “in no ease shall the territory or county be liable for such costs, ’ ’ is invalid because in conflict with an act of Congress. It matters not which fee bill prevails; appellee is governed by the law of the territory in seeking to establish and enforce his claim against the county. This law is found in chapter 2, title 14, supra, and its provisions, as held by this court in Yavapai County v. O’Neil, supra, are exclusive.
The complaint shows affirmatively on its face that the right to present the claim to the board of supervisors for allowance had elapsed on June 6, 1910, for the reason that the provisions of paragraph 989, Revised Statutes of 1901, were not followed by appellee in his attempt to establish and enforce his claim against the county. For this reason the judgment of the trial court is reversed, and the ease is remanded to the superior court, with instructions to sustain the demur
FRANKLIN, C. J., and ROSS, J., concur.
NOTE.—Judge CUNNINGHAM being disqualified, and announcing his disqualification in open court, the remaining judges, under section 3 of article 4 of the constitution, called in Hon. A. G. McALISTER, Judge of the superior court of the state of Arizona, in and for the county of Graham, to sit with them in the hearing of this case.
NOTE.—As to the effect of allowance or disallowance of claims against a municipality, see note in 55 Am. St. Rep. 203.
As to when presentation of claims against a municipality may he made, see note in Ann. Cas. 1913A, 348.
As to the amount of damages recoverable against a municipality as affected by the statement of damages in a claim previously filed, see note in Ann. Cas. 1913B, 869.