County of Maricopa v. Osborn

40 P. 313 | Ariz. | 1895

HAWKINS, J.

Action by appellee to recover $1,818.55. for services as county recorder in filing and recording certain tax-certificates and tax-deeds to lands that had been struck off to the territory for delinquent territorial and county taxes. •Judgment was recovered for $809.65 against appellant. Appellee moved to dismiss the appeal, for the reason the appellant filed no appeal-bond, as required by the statute. The statute does not say in direct terms that a county may appeal without giving bond to appellee. It does say that the territory may do so. Rev. Stats., par 866. A county is a political subdivision of the territory, and may sue and be sued. It does not have to file an appeal-bond in order to maintain its appeal. The motion to dismiss is denied.

Appellee also raised the question that the motion for new trial was not embodied in a bill of exceptions, and the points, therein contained cannot therefore be considered in this court. We think this point well taken, and we cannot consider any question in the case not apparent upon the face of the record. Upon this point this court has repeatedly so held. Putnam v. Putnam, 3 Ariz. 182, 24 Pac. 320; Snead v. Tietjen, 3 Ariz. 195, 24 Pac. 325; Gila R. I. Co. v. Wolfley, 3 Ariz. 176, 24 Pac. 257.

The only question for us to coi] rider in this case is, Does the complaint state facts sufficient to constitute a cause of action t It does not. The county is not interested in the deeds and certificates filed and recorded by the appellee. They were made by the tax-collector under the law to the territory. It then became the duty of the county recorder (Rev. Stats.r par. 2703) to record the deeds to the territory without charge to the county. Paragraph 2710 of the Revised Statutes provides the mode by which the county collector and the county recorder get their fees for the class of services sued on in the action at bar. There is no other, The board of supervisors (under paragraph 2709 of the Revised Statutes) become the agents of the territory in the disposition of all real estate held by the territory under the tax-deed for the collection of the total taxes, penalties, and costs, including the unpaid charges of the collector and recorder. When so collected by said board, the money is all paid by t'uem to the county treasurer, and he (the county treasurer) first pays therefrom what is due the county collector and the county recorder, and distributes and credits the balance to the funds entitled thereto. It is readily seen that under no c ircumstanees can the county be held for such fees of the colle.fcor and recorder.

Appellee in his complaint, however, claims that his fees became a county charge under pc ragraph 2710 of the Revised Statutes “as amended by the act of April 2, 1889.” This act never became a law, for the reason that it was not signed by the governor; nor was it returned to the legislative assembly with his objections and passed omr his veto; nor did it remain in his hands ten days during the existence of the legislature. The fifteenth legislative assembly of Arizona convened on the twenty-first day of January, 1889. The sixty days’ duration allotted it by Congress expired long before this act purports to take effect. Territorial legislatures ape limited to sixty days’ duration. Rev. Stats. U. S., see. 1852. Neither the governor nor the legislature has any power to approve or pass bills thereafter. Territory v. Clayton, 5 Utah, 598, 18 Pac. 628. It is hardly necessary to cite authorities on this question. The mere reading of the act of Congress solves the same.

The judgment is reversed, with directions to the court below to sustain the demurrer to the complaint. The case of Cheney v. Smith, 3 Ariz. 143, 23 Pac. 680, is expressly overruled.

Baker, C. J., having been of counsel for appellee in the court below, took no part in the cause in this court.

Bethune, J., and Rouse, J., concur.