Yavapai County v. O'Neill

KIBBBY, J. This was a suit in the court helow by the appellee against the appellant to recover compensation for services alleged to have been performed by him as sheriff of Yavapai County. There was judgment for appellee. The complaint is in two counts,—the first being for a balance alleged to be due for services rendered during the quarter year ending March 31, 1889, and the second'for a balance for the quarter ending June 30, 1889. There was a demurrer to each count of the complaint upon the ground that neither of them stated facts sufficient to constitute a cause of action against the defendant. The demurrer to the first count of the complaint was sustained. The demurrer to the second count was overruled; and this ruling is assigned as error, and presents the first question for our consideration. It is alleged in the second count of the complaint that, during the period beginning April 1, 1889, and ending June 30, 1889, the plaintiff, as sheriff of Yavapai County, performed certain duties imposed upon him by law, the various items of which are enumerated; that on the 24th of August, 1889, he made out a proper account thereof, and a statement of his legal compensation therefor, in form and verified as prescribed by law, and on that day presented such account and claim to the board of supervisors of Yavapai County, the time of presentation being within six months next after the last item in the account had accrued; that by virtue of a contract made between himself and the county, through its board of supervisors, on or about the first day of April, 1889, the appellee performed, and the county agreed to pay for, certain specified services; that certain other services for which he claimed compensation were imposed upon him by law; that, as credits upon certain of the items mentioned in the complaint, the county has paid him sums aggregating $6,044.85, leaving — 372 — unpaid and due the sum of $3,442.05; that after the presentation of his said accounts and claims, as before mentioned, and before the filing of this complaint, the board of supervisors failed and refused to allow the same, except to the extent of $6,044.85, and, after the payment of that amount, rejected the residue of his claim; that such account and claims have been presented to the board of supervisors more than one day before their rejection; that the plaintiff has never been indebted to the county; that he has never neglected to make his proper returns and reports as required by law, and has never willfully neglected or refused to perform any of the duties of his office; that heretofore, at the regular April term of said' board, the plaintiff presented his account for $602.60, for certain of the items set out in the complaint; that by mistake and miscalculation he made his claim for that sum, when in fact he was lawfully entitled to the sum of $997.50; that the plaintiff is dissatisfied with the failure and refusal of the board of supervisors to allow his claim; that the sum of $5,834.85, paid as credit upon his claim, was paid by the board of supervisors, and received by the plaintiff, upon the express understanding and agreement between the board and the plaintiff that the receipt of said sum should in no wise prejudice or otherwise affect the plaintiff’s right to bring his action for the recovery of the balance, and that said credit was received by the plaintiff under protest, and only upon such understanding and agreement. A copy of the agreement referred to is appended to the complaint as an exhibit. It is as follows: “This agreement between the county of Yavapai, through its board of supervisors, acting by its chairman, on the first part, and William O. O’Neill, sheriff of said Yavapai County, in the territory of Arizona, of the second part, witnesseth: That whereas, the bill of the said sheriff for fees and perquisites for the quarter ending July 1, 1889, as presented to the said board of supervisors, is for the sum of $8,199.15; and whereas, the said board are convinced and satisfied that, under the law, the above sum is too much for the services rendered to the said county, but that the sum of $5,834.85 is an adequate, reasonable, and liberal allowance to said sheriff under the law: Now, therefore, the said board, acting as aforesaid, hereby agree to draw their warrant and warrants to said sheriff for said last amount with the express — 373 — understanding that, should said sheriff be dissatisfied therewith, and bring suit upon said bill to recover the whole thereof, or any sum greater than that allowed, the amount so paid shall be taken as a general credit upon said original bill, and not as an acknowledgment of the justness of each and every item or items thereof, but the legality and justness of each and every item and items of the same shall be determined by and in the courts; and should the final determination of the courts be and find that the said sum so allowed by the board be more than the law allows for said services, then the said county is to have a credit for such difference. And the said sheriff, on his part, agrees to and accepts the above proposition with all of its conditions, and further agrees to take no advantage of said payments, but to litigate the same as a whole, and regardless of said payment, testing each and every item of the same. It is further understood that the receipt of such said sum is no bar to any action, and shall in no way or manner lessen the rights of the said sheriff in any proceeding that he may hereafter bring against said county of Yavapai upon said account.” Section 578 of the Revised Statutes of 1887 (sec. 1, ch. 14, tit. 13, “Counties”) provides that “accounts for county charges of every description must be presented to the board of supervisors to be audited as prescribed in the act.” Section 579, among other things, provides that the compensation of the sheriff for executing process in criminal cases is a county charge, and so “the expenses necessarily incurred in the support of persons” committed to jail. Section 408 provides that every person having a claim against the county, except for compensation due to jurors and witnesses, or for official salaries, by which some express provision of law is made a demand against the county, shall, within six months after the last item of the account accrued, 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 the amount thereof. Section 414 provides that “where the board [of supervisors] finds that any claim presented is not payable by the county, or is not a proper county charge, it must be rejected. If they find it to be a proper county charge, but greater — 374 — in. amount than is justly due, the board may allow the claim in part, and draw a warrant for the portion allowed, on the claimant signing a receipt in full for his account. If the claimant is unwilling to receive such amount in full payment, the claim may be again considered at the next regular succeeding session of the board, but not afterwards.” Section 415 provides that “a claimant dissatisfied with the rejection of his claim or demand, or with the amount allowed him on his account, may sue the county therefor at any time within six months after the final action of the board, but not after-wards.” It will be observed that the plaintiff in this case had presented his claim for the items embraced in his complaint (except as modified to correct an alleged error in a former account) to the proper board of supervisors; that his claim had been by it considered, and allowed for a sum less than the amount claimed by him; and that he had, before this suit was begun, received warrants for the amount so allowed. The question presented by the demurrer devolves upon us the consideration of the legal 'effect of the agreement between the board of supervisors and the appellee, whereby he received the sum allowed by the board upon the understanding (and the board expressly agree) that such payment should not operate to affect appellee’s right to litigate the whole claim. Preliminary to that, however, is the question whether the method prescribed by the act we have quoted from for the allowance and enforcement of claims against the county is exclusive, or whether a claimant may not, in the first instance, sue the county, without resort to the method prescribed. In many states it is expressly provided by statute that actions against municipal or quasi municipal corporations, upon any demand whatsoever, cannot be maintained until the claim therefor shall have been presented to the proper officer of the corporation charged with the duty of auditing and allowing claims for allowance or rejection. In our statute there is no such express limitation of the right to maintain an action against the county. By section 384 a county may sue or be sued. The fifth clause of section 522 (of the same title) provides that the county treasurer shall ‘‘disburse the county moneys only on county warrants issued by the board of super — 375 — visors, signed by the chairman and clerk of said board, or as provided by law.” Section 407 provides that “no payment shall hereafter be made from the treasury of any of the counties of this territory unless the claim or demand shall be duly allowed according to the provisions of this act.” Construing these several statutory provisions together, we think it a fair inference that the legislature intended that the 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. Upon that part of the claim, then, embodied in the complaint, which includes items that were not presented to the board, and which plaintiff alleges were omitted by mistake, applying the above rule, there can be no recovery. That manner of the presentation, allowance, and payment of claims against the county prescribed by the statute from which we have quoted, being exclusive of any other, the right of the plaintiff to maintain this action is governed thereby, and, as well, is the board of supervisors. It is a salutary rule that requires the claimant, if he be dissatisfied with the allowance by the board, to either forego its part rejected, or submit his claim as a whole to the courts. It would be unfair to the county that he should accept that part of the determination of the board that is to his advantage, and make the other a subject of litigation. The observance of the rule that, when his claim is only partially allowed, the claimant must accept the part so allowed in satisfaction of his whole claim, or litigate it as an entirety, would directly tend to the discouragement of the presentation of fictitious and extortionate claims against the. county. It is expressly provided that the board shall draw its warrant for the portion allowed upon the claimant filing a receipt in full for his account. This is necessarily, by construction, prohibitive of the issuance of the warrant upon any other condition; and of this the plaintiff must have been as well aware as was the board of supervisors, and the effect of the receipt by the plaintiff was to release the county for further liability. The board of supervisors had, in the premises, only such powers — 376 — as were expressly conferred upon them, and those necessarily implied from those expressed. It not only had not power conferred upon it to waive this condition, but that power was distinctly withheld; and, moreover, the alleged agreement upon the part of the board is wholly without consideration. If any illegal payments had been made, they could, under other provisions of the statute, have been recovered; and the agreement of the appellee that the county should not be bound by its order of allowance, and that he would take no advantage of it, gave to the county no right which it did not already have by statute. Rev. Stats., see. 383, same title. It follows, therefore, that the agreement between the board of supervisors and the plaintiff, providing that the acceptance by plaintiff of the warrant for a part of his claim should not operate to affect the plaintiff’s right to proceed by suit to establish his whole claim, is void, and for that reason the demurrer should have been sustained. While this conclusion requires us to reverse the case without consideration of the other questions presented, yet, as it is known to each of the members of this court sitting as district judges, that questions are constantly arising concerning the compensation of sheriffs, we shall consider those presented by this record. The first item objected to is one for $678, for mileage for 2,260 miles’ travel to serve warrants of arrest. The plaintiff was allowed to testify that, when he first received notification of the robbery alleged to have been committed by the men in the accomplishment of whose arrest he alleges he necessarily traveled 2,260 miles, he went to the district attorney of the county, and to Mr. Behan, the chairman of the board of supervisors, and told them he was going after the train robbers,—those subsequently arrested; that Mr. Behan declined to let him take the proper deputies; that Mr. Ross, the district attorney, was non-committal, but said that the A. and P. R. R. would pay for the capture; that he thereafter began a pursuit of the alleged robbers, finally effecting their arrest in Utah, whence he returned them to Prescott, the county-seat of Yavapai County, Arizona. Other testimony relative to the difficult character of the country traversed in effecting the capture, the manner of the capture, and the dangers encountered therein was permitted, but it is not material — 377 — to the consideration of the question. Of the 2,260 miles alleged to have been necessarily traveled in effecting this arrest a considerable proportion was in Utah. It appears that the plaintiff had in his hands a warrant for the arrest of the train robbers, issued by a justice of the peace of Yavapai County, and that it was upon this warrant that he assumed to make the arrest. Section 1972 of the Revised Statutes of 1887 (title “Fees and Salaries”) fixes the fees of a sheriff for executing a warrant of arrest or capias, or making an arrest without warrant, at two dollars. For each mile he may be compelled to travel in executing criminal process, summoning or attaching witnesses, thirty cents, to be charged one way only. By section 1277 of the Penal Code it is provided that “a warrant may be directed generally to any sheriff, constable, marshal, or policeman in this territory, and may be executed by any of those officers to whom it may be delivered in any county.” This section confers upon the sheriff, or other officer in whose hands the warrant may be, the power to execute it anywhere within the territory; but of course the warrant would have no extraterritorial vitality. The statute prescribes a fee for executing the writ, and mileage for the distance necessarily traveled in executing it. To execute a warrant of arrest is to actually effect the arrest by virtue of and in obedience of the mandate of the writ, and make of the person therein named the disposi-. tion required. A warrant of arrest issued out of any court in this territory cannot be executed in a legal sense outside of the territory. Whatever was done in Utah in the way of pursuit and capture was not there done, and could not there be done, in the execution of the writ, for there the writ was not a writ. It is our conclusion, then, that no fee can be, under the statute, charged for travel beyond the territory, in the execution of a warrant of arrest; and to the extent that such fees were allowed, the judgment of the lower court is erroneous. Whether the board of supervisors could make a valid agreement to pay compensation for such services we need not here decide. It is sufficient to say, for the purpose of this case, that it did not do so. The chairman of the board, by virtue of his office, cannot bind the county, nor can the district attorney. The next item for our consideration is one for $1,115.10, for — 378 — services and mileage in the service of certain subpoenas. The plaintiff was allowed to testify, over the objection of the appellee, that the board of supervisors authorized him to go and serve these subpoenas. This was error. The statute requires that the clerk of the board must record all proceedings of the board, and make full entries of all their resolutions and decisions on all questions concerning the raising of money, and for the allowance of accounts against the county. Rev. Stats., 1887, sec. 394. The succeeding section provides that the board must cause such a record to be kept. It will be presumed that the board and its clerk have done their duty in this particular, and if the board made such an order, or gave such authority, that there is a record of it; and the record, if there be one, is the best and only evidence of the fact. We are aware that there is some conflict of authority on the question of the admissibility of parol evidence, or other evidence than that of the record itself required by statute of proceedings of county boards, to prove the acts of such boards. A few have held that the board can only speak by its records; others hold that omissions from the record may be supplied by parol evidence; and still others that paroi evidence is of equal degree with the record. The extent, however, to which it is here necessary to go is that, when there is a record of the proceedings of the board,—and it will be presumed, in the absence of a showing to the contrary, that there is one,—parol evidence is not competent to prove the action of the board of supervisors. Of the item for $1,115.10, a large proportion is for mileage for travel outside of the territory. That part of the charge would not, in the absence of an agreement by the board of supervisors otherwise, be a proper charge against the county. It appears, by the minutes of the board of supervisors, that it took the following action: “On motion it was ordered that the sheriff be allowed mileage to subpoena witnesses in Utah in the cases of the train robbers.” The question, then, presents itself as to the power of the board of supervisors to make such an order. It is of course true, as elsewhere said, that the writs of the several courts of this territory can have no legal effect outside of our territorial limits. It is among the functions of a county government to aid the local courts in the administration of — 379 — justice; to that end to provide court-houses for the courts, and light, fuel, and attendance thereon; to supply proper books and stationery; to provide money for the payment of officers for summoning witnesses, and the arrest of criminals. In the exercise of this function the board of supervisors are circumscribed by statutory provisions on these subjects, where there are such provisions. It may often happen that the attendance of witnesses of great importance resident out of the jurisdiction of any of the courts of the territory may be secured at those courts upon mere notification to them of the fact that their attendance is requested. It appears in the train-robber cases, spoken of in this record, that witnesses not resident of the territory did appear after the notice to them that their attendance was desired. Their absence might have prevented the conviction of those train robbers. There is no express provision in the statute for the compensation of the sheriff for going out of the territory upon such service; but clause 9 of section 579 provides that the contingent expenses necessarily incurred for the use and benefit of the county shall be a county charge. To hold that the board of supervisors may not employ some one to notify such nonresident witnesses, and thereby secure their attendance when it could not otherwise have been secured, will in many cases result in the defeat of the very purpose of the organization of courts. We think that the board has the power, acting, of course, reasonably, and in the exercise of a careful discretion, to employ the necessary means to secure the attendance of necessary witnesses who cannot be secured by the ordinary process of the court. The sheriff, in such a ease, acts not as sheriff, but as a mere messenger; and we think, if he was actually employed in that service, he is entitled to the compensation agreed upon, if any be agreed upon, between himself and the board of supervisors. If none was agreed upon, then he would be entitled to reasonable compensation, to be fixed by the court in the event of a suit. We think the minute entry in the record of the proceedings of the board is sufficient evidence of such employment. The next error complained of by appellant is that the court permitted a witness for the plaintiff to testify to the contents of certain telegrams relative to the whereabouts of an alleged — 380 — ciiminal. This was erroneous, for two reasons: The proper foundation was not laid for the admission of parol evidence of the contents of a telegram; and because communications between a sheriff and a third person are incompetent to establish or tend to establish an agreement between the sheriff and the board of supervisors relative to the subject-matter of such communications. Among the items charged by the plaintiff in his account, as sheriff, against the county, are several for removing a prisoner from the place of arrest to the county jail, as well as for mileage from the county-seat to the place of arrest. The statute provides compensation “for removing a prisoner, for each mile necessarily traveled, to be charged one way only [thirty cents,] and for each guard the same. Insane persons are prisoners within the meaning of this act. For each mile he may be compelled to travel in executing criminal process, summoning or attaching witnesses, to be charged one way only, 30 cents.” Rev. Stats. Ariz. 1887, par. 1972. To execute criminal process, as we have before said, is to do what is in the writ commanded. A warrant of arrest in the form prescribed by our Penal Code not only commands the arrest, but the bringing of the prisoner to the place of holding the court whence the warrant issued. To execute, therefore, a warrant, the officer must not only arrest, but “remove” the prisoner from the place of arrest to the court whence the writ issued. For this particular service, that is, for arresting the prisoner and removing him thence to the place named in the writ, the statute provides a compensation of thirty cents per mile necessarily traveled, one way only. It seems to us that the contention of plaintiff, that his compensation for executing such process is earned when he shall have effected the arrest merely is not tenable; the removal of the prisoner is a part, in such case, of the execution of the writ. There are many cases where a prisoner may be removed, as from the territorial prison to the county-seat on a reversal of a judgment of a district court; the removal from a magistrate’s court to the county jail after a preliminary examination; upon the order of a committing magistrate after trial or upon a commitment; upon a change of venue, etc.,—and it is compensation for these removals that the statute contemplates, and not — 381 — the removal of a prisoner from the place of arrest to the county-seat. The case of Sherman v. Santa Barbara Co., 59 Cal. 483, cited by appellee, is not in point; the case of Cunningham v. San Joaquin Co., 49 Cal. 323, is based upon a statute differing from ours, rendering it inapplicable to the question before us; and we do not think that the language used in the third clause of section 579 of the Revised Statutes of 1887 will warrant the construction put upon -the fee-bill by the court below. The whole object of section 579 is to make the sheriff’s legal compensation and expenses, elsewhere fixed, in criminal cases, a county charge. For the arrest of a prisoner, and removing him to the court whence the warrant issued, the only compensation to be allowed to the sheriff is two dollars for the service of the writ, and thirty cents for each mile, counting one way only, necessarily traveled in effecting such arrest and removal. In addition to that,—not by way of compensation, however, but as necessary expense incurred by him,—the sheriff, or other officer, effecting the arrest and removal, is entitled to be reimbursed the amount of expenses incurred by him in returning his prisoner, or for transportation of the prisoner, and his subsistence, excluding of course, in the estimate of expense, any part of the personal expense of the officer. Another objection to the account is that among the items charged by appellee are several for mileage traveled outside of Yavapai County to serve subpoenas in criminal cases upon which there had not been indorsed the order of the judge of the district court that the witness named in the writ should attend, under the provision of section 2054 of the Penal Code. That section provides that a witness in a criminal case, nonresident of the county in which the case is to be tried, shall not be obliged to attend unless an order to that effect shall have been indorsed by the judge of the court upon the subpoena, requiring such attendance. Until such am order shall have been indorsed, the writ lacks its chief, essential element,—that is, the positive command of the court for attendance, for the violation of which the witness may be subjected to penalties. It is practically not a subpoena, and is ineffectual to accomplish the purpose of such a writ without the indorsement so required. We are of the opinion that the sheriff was not — 382 — bound to serve a writ of subpoena in a criminal case upon a witness non-resident of the county where the trial is to be had unless it be so indorsed; that its service is not contemplated by the statute; and, consequently, no fee can be allowed therefor as a legal county charge. Other items charged, which are objected to, are for mileage traveled in unsuccessful attempts to execute warrants of arrest. Wé think it very clear that fees for mileage cannot be allowed unless the officer shall have executed the writ. The statute provides that for each mile necessarily traveled in executing the process there shall be allowed thirty cents, to be charged one way only. Par. 1972. The case of Davis v. Board, 37 Minn. 491, 35 N. W. 365, is relied on by appellee to warrant a contrary construction of the statute. That case, however, turns upon a provision of the Minnesota statute that does not appear in our statute; and even then the reasoning of that case is not satisfactory. The rule we have announced we think better calculated to serve public interests by exciting officers to diligence and promptness in the service of criminal process. These items, therefore, are not proper county charges. The judgment' of the court below will be reversed, and this cause remanded, with instruction to sustain the demurrer to the complain;, and take other proceedings in accordance with this opinion. Sloan, J., concurs in the foregoing opinion. WELLS, J.—I concur, except to that part of the opinion which holds that an officer having a warrant of arrest cannot receive mileage traveled in unsuccessful attempts to execute such warrant. I hold that the officer should receive, by way of compensation, such mileage actually traveled as is reasonable, where an honest effort is made to serve the process, although he failed to make the arrest, or return the prisoner. GOODING, C. J.—I concur in the decision, and in the opinion, except that part of the opinion that recognizes authority in the board of supervisors to send an agent or messenger out of the territory to procure the attendance of witnesses, and to make a contract binding the county for the — 383 — expense thereof; except, also, that part of the opinion that holds a sheriff not entitled to compensation unless he actually arrests a prisoner for whom he may have a writ or warrant. On these two propositions I dissent.