9 Colo. 318 | Colo. | 1886
The rule is well established that, where the exercise of official discretion or -official judgment is required of an officer or board, mandamus will not lie either to control the exercise df such discretion, or to determine what judgment shall be given. If an officer or board of officials, vested by law with discretionary powers, refuse to act, mandamus is the proper remedy to compel aotion, but not to interfere with the exercise of official discretion or judgment. High, Extr. Rem. § 42, and authorities cited.
By section 1942, Gen. Laws, the board of county commissioners is authorized and empowered to judge of the sufficiency of official bonds of this character and to approve the same. Upon tender of the new bond the board appears to have taken prompt action to investigate its sufficiency. The result of that investigation was expressed by its resolution, in these words: “It is deemed that said bond is insufficient for the public security.” If, then, the order for the peremptory writ be sustained, it must be sustained on the theory that the bond is sufficient, notwithstanding the action of the board of county commissioners. But to so decide would be to set aside the official judgment and discretion of the body authorized by law to determine the sufficiency and to approve such security, and to substitute therefor the judgment and discretion of a tribunal not clothed by law with such powers. It is plain, therefore, that the judgment cannot be sustained. Howland v. Eldredge, 43 N. Y. 460.
Judgment reversed and cause remanded, with directions to the superior court to dismiss the proceeding at the cost of the petitioner.
Reversed.
