34 Colo. 120 | Colo. | 1905
delivered the opinion of the court.
Though it is not expressly stated in the pleadings, this court, takes judicial notice that the appropriation of 1889 was invalid because in excess of the revenue provided therefor; so that, not only for that reason, but because the answer avers that it had'been expended before the respondent entered upon the duties of his office and was entirely beyond his reach and unavailing for any warrants that he might draw upon it, it was clearly the duty of that officer to refuse to draw his warrant upon that depleted fund if, in fact, it ever existed or was availing.
The question then is, whether it was the duty of the auditor to- draw his warrants after the appropriation made by the act of 1891 was exhausted.
The allegation of the answer is that the entire appropriation of $31,250 made by this act had been expended, and that the same and all thereof had been paid to and received by the petitioner. It is well settled in this jurisdiction that it, is not only the right but the constitutional duty of the state auditor to refuse to draw warrants when no sufficient revenue has been provided or no appropriation made therefor. No revenue or appropriation having been provided by the general assembly for the benefit of the petitioner beyond the $31,250 which he has received, the auditor was clearly right in refusing to draw his warrant for any amount in excess thereof, and the district court was manifestly wrong in ordering* him to do so. This question has been decided so often by this court that it is hard to see how the district court could have so misapprehended its plain duty in the premises. — Goodykoontz v. People, 20 Colo. 374, 376; Henderson v. People, 17 Colo. 587, 590; In re Loan of School Fund, 18 Colo. 195, 200; People ex rel. v.
The closing language of the opinion of Judge Reed in the case last above cited is peculiarly applicable here. He says:
“The failure to pay the debt undoubtedly works a hardship upon the defendant. It accepted the contract in good faith; with no doubt in regard to its-validity, performed its part. No question is made as to price — that it should be paid goes without saying, but public officials are bound by inexorable law in regard to the disposition of public money, and are properly made responsible for all disbursements, and should be protected. Further legislation seems to be needed to provide for the payment of this debt. ’ ’
The judgment of the district court is reversed, and the cause remanded with instructions to vacate the judgment heretofore entered and to dismiss the proceedings at the cost of petitioner.
Reversed.
Chief Justice Gabbert and Mr. Justice Steele concur.
