Lee v. Coleman , 63 Ariz. 45 ( 1945 )

In the main, I concur with the conclusions set forth in the majority opinion; but in one important matter, it is so contrary to my conceptions of law, logic, equity and sound public policy, that I am constrained to submit a dissenting opinion. It is my view that the judgment of the lower court should be reversed in its entirety, with costs to the appellants, instead of being remanded for a new trial, with what is tantamount to an instruction to hold appellant supervisors for designated parts of the claims sued upon, and for an additional twenty per cent penalty.

As stated in the majority opinion:

". . . The gist of the plaintiff's complaint is that the expenditures itemized in the complaint and for which warrants were drawn and paid were illegal for the sole and only reason that they were not paid out of the fund expressly budgeted and labeled as `Travel Expenses of Supervisors,' but were allowed and paid out of the fund labeled `Road Fund.'"

The travel expense items for which a refund is sought from the appellants, were paid to them over a period of four years. The record indicated that the combined payments for travel expense from the two funds, never at any time exceeded the total amount set up in the fund labeled "Travel Expenses of Supervisors," except during one year. The effect of the majority opinion is to hold the appellants for this excess, with all attached penalties, but to hold valid the payments made from the Road Fund, so long as the combined payments from that fund and the fund designated "Travel Expenses of Supervisors," did not exceed the total amount budgeted for the latter.

It apparently is conceded by all the parties concerned, that all the items for traveling expenses of the supervisors which were allowed and paid from the Road Fund during the period involved in this action, were paid for traveling expenses actually incurred by the supervisors in the performance of their statutory duties in supervising and managing the roads of their county, and in attending meetings having to do with the road affairs of the county. The original claims and warrants which were exhibits in the lower court, and also in this court, show on their face that they were for such traveling expenses. It also apparently is conceded by all parties concerned, and by the majority opinion of this court, that such travel expenses would have been absolutely legal in every respect, if they had been charged to an account expressly labeled "Travel Expenses of Supervisors."

Under the provisions of Arizona Code Annotated 1939, Section17-309, subd. 4, it is the duty of the supervisors to "Lay out, maintain, control and manage public roads, ferries and bridges within the county . . . ." It is a matter of common knowledge among taxpayers, that such are the duties of the supervisors, and that traveling expenses must necessarily be incurred in the performance of such duties.

The record shows that for the year when this excess payment was made, the Road Fund budget included an item designated as "Administration and Transfers." The purpose of the Budget Law, is two-fold, as this court has pointed out on a number of occasions. The first purpose is to apprise the taxpayers of the amounts and purposes of the expenditures which the supervisors propose to make during the ensuing fiscal year. The second is to give taxpayers an opportunity to object, either to the amounts or to the purposes of such proposed expenditures. After the taxpayers have exercised their statutory privilege of objecting to any proposed expenditures, the supervisors may in their discretion, either follow or disregard any suggestions, or objections. Any taxpayer with enough intelligence to be interested in the budget in the first place, should know that an item designated in the Road Budget as "Administration and Transfers," could and probably would include traveling expenses in connection with the supervision and administration of the roads of the county. I find nothing in our statutes furnishing what appears to me to be a sound basis for the conclusion of the majority of this court, that the establishment by the Supervisors, of a general budget for traveling expenses, precluded them from paying the traveling expenses connected with a particular department — the road department or any other county department — from a special fund set up in such department, and designated therein by any appropriate language, indicating the general purpose for which it is to be used. If the item in the Apache County Road Budget designated as "Administration and Transfers," did not convey to the taxpayers of that county, the idea that some of such fund might be applied to traveling expenses incurred in supervising the public roads, then what would or could they understand to be the intended application of that item? Under the situation disclosed by the record I see no ground for saying any taxpayer was deceived or misled.

The inhibition of the statute, Arizona Code Annotated 1939, Section 73-503, as amended by Laws of 1943, Chapter 48, is:

". . . no expenditure shall be made for a purpose not included in such budget, . . ."

As I read the Budget Statute, there is nothing in it which will, after an item for a specific purpose has been set up for one department, prevent the inclusion of a like item in the fund budgeted for another department. When the supervisors established this budget item of "Administration and Transfers," thereby giving it a designation which ought to be understood by any person of ordinary intelligence, and fixing the amount thereof, they complied not only with the spirit but with the letter of the law.

It is true that the statute, Section 73-502, says:

"The estimate shall contain a statement of the amount of money required for each item of expenditure necessary for county . . . purposes, . . . ."

The statute elaborates further, however, by stating:

"The estimate shall be entered upon the minutes of the governing body and shall be fully itemized, showing under separate heads the amounts proposed as required for eachdepartment, public office or official, . . . showing theamount proposed to be expended from each separate fund, and the total amount of proposed public expense. . . ."

In view of the context of this statute, and of the language used by this court in the cases hereinafter cited, the words "item" and "itemized," should be understood either in a generic sense, or in a detailed and particular sense, in accordance with the common sense of the factual situation involved. In other words, the legislature should be credited with that degree of common sense which will preclude the idea that it ever intended a minuteness of itemization that would paralyze the public offices and departments of the state and county governments. If the expression, "each item" is to be given the absolutely literal construction the majority of this court seem inclined to give it in this case, then it will be necessary in the preparation of the various budgets, for each officer to specify in microscopic detail, the thousand and one tools, gadgets, and supplies of every description which will be needed to carry him through the year together with the cost for each atomic item; instead of using the inclusive expression, "Office Supplies," or some other generic term which will at a glance, tell the taxpayer the purpose of the proposed expenditure. If this "each item" idea of the statute is carried out to its logical conclusion, where will the process end? As a possible aid to any one who may attempt to answer that question, I quote from DeMorgan's "A Budget of Paradoxes":

"Great fleas have little fleas upon their backs to bite 'em,

And little fleas have lesser fleas, and so ad infinitum."

I find the following expression in the opinion in the case ofYanke v. School District, 56 Ariz. 93, at page 98,105 P.2d 966, at page 968:

"The cost of the schools of the state comprises one of the largest items of our annual tax bill."

The large item there referred to, necessarily included an infinite number of lesser expense items. There are few items of public expense one could think of, that could not be subdivided into smaller items.

This court has held in State Board of Health v. Frohmiller,42 Ariz. 231, 23 P.2d 941, and in Coleman v. Lee,58 Ariz. 506, 121 P.2d 433, 435, that it is permissible for a budget appropriation to be made in a lump sum — "leaving to those whose duty it is to spend such sum the power and right to appropriate it as the law permits."

The board of supervisors, being the body authorized by law to administer the road fund, had the legal right to break down the "lump sum" item into the lesser items reasonably and necessarily included therein.

Sound public policy requires that a liberal construction be placed upon the statute, with a view to carrying out its legitimate purposes hereinbefore mentioned without unduly hampering the administration of the public offices and departments of the state and its counties. If the county supervisors are to be penalized because they fail to use the most appropriate words in the dictionary for their budget titles, even though the language used by them may clearly indicate the character of the proposed expenditure, then men who are competent and financially responsible, will shun the office, notwithstanding the munificent salary of $125.00 per month which the legislature has lavished upon ordinary members of the board and the princely stipend of $150.00 per month generously granted to the chairman. In this case, the good faith of appellants is not impugned. No peculation is charged. There is no question that the county benefited by the expenditures. It is true that this court has asserted that those things do not count when there is an unquestioned violation of the expressed terms of the budget statute. In this case, however, for the reasons I have pointed out, I am convinced that there has been no violation of the statute. It has been the policy of this court not to uphold forfeitures and penalties, unless the law and the facts clearly require that they be exacted.

This court in Batterton v. Pima County, 34 Ariz. 347, at page 359, 271 P. 720, at page 724, quoted with approval from the Utah case of Salt Lake County v. Clinton, 39 Utah 462,117 P. 1075, as follows:

"`It is for money paid out by order of the Board for some purpose not authorized by law — that is, paid out for a purposewhich the law does not sanction under any circumstances — that the members of the board are personally liable.'"

In Webster v. Parks, 17 Ariz. 383, at page 391,153 P. 455, at page 458, we find the following:

"But we do not think we are required to go to the length of making the supervisors refund this sum to the county, . . . for a mere irregularity. It would be converting what the lawmakers intended to be a very salutary rule of law for the protection of the funds of the county into a severity of punishment so oppressive as to be avoided if possible."

The policy of this court is shown in the case of Coleman v.Greer, 59 Ariz. 108, at page 111, 123 P.2d 827, 828, where we find the following language:

"The action granted by Sections 17-325 and 17-326, supra, is a highly penal one and should not be extended beyond their reasonable terms."

I therefore dissent from that part of the majority opinion which directs a new trial and sanctions the recovery from the supervisors of any part of the travel expense involved in this action.