County of Cochise v. Good

JOHN A. McGUIRE, Judge of the Superior Court. This is an appeal from a judgment of dismissal following the granting of a motion to dismiss. The complaint filed by the county attorney of Cochise County on February 2, 1967, against Joe G. Good, a supervisor of that county and the surety on his official bond, alleges that it is brought pursuant to the provisions of § 11-223 A. R.S. and further alleges in substance that Good, while a supervisor, sold non-existent automobile tires as well as certain real tires at an improperly high price to Cochise County, and that this was done in the name of two dummies named in the complaint. It is further alleged that defendant Good had the dummies endorse to him the county warrants received by them and paid them “a few dollars for their trouble.” The trial judge dismissed the suit on motion of the defendants on the ground that the county attorney had no statutory authority to initiate an action in the name of the county without prior permission from the Board of Supervisors and that therefore it was unnecessary to determine the constitutionality of A.R.S. § 11-223, which had been challenged in the motion to dismiss. This section is as follows: “Misconduct by supervisor; penalty “A supervisor who neglects or refuses to perform any duty imposed on him with [449] out just cause, or who wilfully violates any law provided for or relating to the office of supervisor, or fraudulently or corruptly performs any duty imposed upon him by law, or wilfully, fraudulently or corruptly attempts to perform an act as supervisor unauthorized by law, in addition to other penalties or punishment prescribed, shall forfeit to the county five hundred dollars for every such act, which may be recovered on his official bond, and is further liable on his official bond to any person injured thereby for all damages sustained.” Hence this applies only to suits against supervisors for misconduct committed by them in their official capacity. Our Supreme Court in Arizona State Land Department v. McFate, 87 Ariz. 139, 348 P.2d 912 (1960), carefully distinguished between the power to “prosecute” and the power to “institute” suits as that power is given to attorneys representing the public, and held that the first does not ordinarily include the second. The Board of Supervisors and not the county attorney is authorized to: “* * * 14 Direct and control the prosecution and defense of all actions to which the county is a party, and compromise them * * *” (A.R.S. § 11-251). Various statutes specifically give to the county attorney the power to institute various legal proceedings (e. g., A.R.S. § 11-641, § 44-1465, § 40-421, § 44-1402 and others). A.R.S. § 11-223 does not expressly grant this authority but can it be reasonably implied? The majority of the Court believes it can. This statute contains no provisions permitting a private individual to bring proceedings under it and unless either the county attorney or The Attorney General has the power, the statute is a dead letter and incapable of enforcement. To require that the county attorney secure the consent of the Board of Supervisors before initiating such procedure would do violence to the fundamental principle that a man can never be a judge in his own case. It would limit the application of the statute to the rare and unusual situation where but one supervisor was accused of misconduct and the other two members of the Board both directed that suit be brought against him. In this case it is unnecessary to discuss whether a complaint in an ordinary case on behalf of the county must allege a resolution of the Board authorizing the case, or whether the burden is on defendant to show that the Board disapproves of the county attorney’s action. The sole basis of the trial judge’s decision was that there was no statutory authority allowing the county attorney to initiate the action “without prior permission of the Board of Supervisors”. For the reasons above stated this Court rules that this was error. , The judgment of dismissal is' reversed and the case is remanded to the Superior Court of Cochise County for further proceedings in accordance with this opinion. DONOFRIO, C. J., concurs.