In its generic sense, the term applies to all "acts by an officer in his official capacity under color and by virtue of his office." Ruiz v. Hull, 191 Ariz. 441, 449, ยถ 31, 957 P.2d 984, 992 (1998) (quoting Kerby v. State ex rel. Frohmiller, 62 Ariz. 294, 310-11, 157 P.2d 698, 705-06 (1945)). Such a definition assists in determining, for example, when statutory immunities might shield a public employee from liability, see A.R.S. ยง 12-820.02 (Supp.
We believe that the court properly rejected the offer of proof. The case of Kerby v. State, 62 Ariz. 294, 157 P.2d 698 (1945) is fully dispositive of the estoppel contention by the plaintiffs. In Kerby, our Supreme Court stated the general rule applicable in these cases:
Such equitable defenses are only available when the state, agency, or municipality, is acting within its proprietary capacity in bringing the lawsuit. Id.; see also, Heckler v. Comty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 67, 104 S.Ct. 2218, 2227 (1984) (Rehnquist, J., concurring) (as a general rule, laches is no defense to a suit brought by the government to enforce a public right or to protect a public interest); Kerby v. State ex rel. Frohmiller, 62 Ariz. 294, 308, 157 P.2d 698, 704 (1945) (doctrine of laches does not apply against the state absent a statute expressly allowing such a defense). Federal courts have authority to issue a variety of "ancillary relief" measures in actions brought by the S.E.C. to enforce the federal securities laws.
ยถ 10 Arizona case law has consistently recognized the common law doctrine "nullum tempus occurrit regi"โtime does not run against the king. See , e.g. , Kerby v. State ex rel. Frohmiller , 62 Ariz. 294, 307, 157 P.2d 698, 704 (1945) (noting the established rule that statutes of limitations "do not run or operate against the state"); City of Bisbee v. Cochise County (Bisbee III ), 52 Ariz. 1, 9, 78 P.2d 982, 985 (1938) (finding "ample justification for the rule, stated in the ancient maxim and confirmed by our Legislature from time to time, that statutes of limitations which govern between private individuals do not apply in proceedings on behalf of the state"). The doctrine is based on the premise that, although time limitations apply to private parties so as to prevent fraudulent, stale claims, time stands still, as it were, for the state because "[t]he officers who are charged with the active duty of enforcing [the] rights [of the state] have no personal profit to gain thereby, and therefore no inducement for the bringing of false and unwarranted actions."
In a different context, we have held that an official act is "any act done by [an] officer in his official capacity, under color and by virtue of his office." Ruiz v. Hull, 191 Ariz. 441, 449 ยถ 31, 957 P.2d 984, 992 ยถ 31 (1998) (quoting Kerby v. State ex rel. Frohmiller, 62 Ariz. 294, 310-11, 157 P.2d 698, 705-06 (1945)). This, of course, is broad enough to cover any action taken by the governor in performing the duties of his office.
ยถ 31 Somewhat curiously, intervenors now agree with the Attorney General that the Amendment should be held to govern only binding, official acts of the state, which they also seek to construe narrowly as "formal rule-making or rate making . . . or any other policy matters." AOE and the state defendants also point to the definition of "official act" adopted by the court inKerby v. State ex rel. Frohmiller, 62 Ariz. 294, 310-11, 157 P.2d 698, 705-06 (1945). The court there defined "official acts" as "acts by an officer in his official capacity under color and by virtue of his office."
A creditor's neglect in failing to reach principal does not impair his right to pursue the surety. Kerby v. State, 62 Ariz. 294, 308-09, 157 P.2d 698, 705 (1945). The creditor may assert a right against the surety without having taken action against the principal.
"The elements of an estoppel in pais are well settled; they are, essentially: conduct by which one intentionally or through culpable negligence induces another to believe and have confidence in certain material facts, which inducement results in acts in reliance thereon, justifiably taken, which cause injury to the party thus relying. Kerby v. State [ ex rel. Frohmiller], 62 Ariz. 294, 157 P.2d 698 [1945]." Builders Supply Corp. v. Marshall, 88 Ariz. 89, 94, 352 P.2d 982, 985 (1960).
The officers' request for quantum meruit recovery of overtime wages was denied because of our long standing rule against the allowance of such claims in the absence of a statute authorizing that type of action. Kerby v. State, 62 Ariz. 294, 157 P.2d 698 (1945). To permit "time and a half" for work in excess of eight hours a day would violate the Legislature's prohibition against payment to state employees of any salary or emolument in excess of the salary provided by law. A.R.S. ยง 38-601.
We also stated that the Industrial Commission itself was estopped from asserting the untimeliness of the filing. On reconsideration we have concluded that this statement is incorrect. While the employer may be estopped by his actions to claim the untimeliness of the filing as a bar, the Commission may not be so estopped. Kerby Hartford Accident Indemnity Co. v. State ex rel. Frohmiller, 62 Ariz. 294, 157 P.2d 698 (1945); Board of Trustees v. Wildermuth, 16 Ariz. App. 171, 492 P.2d 420 (1972). The Commission had jurisdiction and discretion to excuse the petitioner from filing a late petition and under the facts in the instant case certainly should have allowed the late filing but the Commission was not estopped from considering the matter.