Schwanbeck v. People ex rel. Smith, 15 Colo. 64

Schwanbeck v. People ex rel. Smith

15 Colo. 64 | Colo. | 1890

Bissell, C.

That an action will he against a public officer for a failure to discharge a statutory duty, or for a neglect or a refusal to exercise a proper authority, cannot be doubted. To sustain the suit the plaintiff must present a petition which sets up a full and technical compliance with all the requirements of the enactment from which his rights are derived, and it must be maintained by full proof. He must show that he has been damaged by the disregard of the obligation, and that he has strictly and in apt time performed whatever conditions precedent are prescribed by the statute.

The act under consideration, and to which the relator must look for the ascertainment of his rights, creates a board to carry out the object and purposes of the act, viz., to supervise and control the construction of the road provided for. The members of this board are the governor, the state engineer and the chairman of the board of county commissioners of Poutt county. Whatever power was conferred by the legislature was conferred upon the three persons named as a body, and to them, as such, was delegated whatever of power was given. Brom this it is evident that whatever action they take must be taken by them as a board. They are given by the act full power to determine what route the road shall cover; for what price, within the limits of the appropriation made by the act, it shall be built; to receive the bids, and decide whether the road has been com*68pleted according to the terms of the contract under which it was built. These being the express powers conferred upon the board by the terms of the act, it is clear that the board was invested with power to decide upon the due performance of the work for which they had contracted on behalf of the state. It is perfectly well settled that where a statute creates a board, and gives to that board power to decide any matter, the board must act as a board, although a binding effect would be given to a decision by a majority, where they all convened to discharge the duty imposed on them. Should the majority assume to do the business of the board in the absence of the other members, their action would not be good under the law, unless the majority were, by the enactment from which they derived their power, expressly authorized to act. Crocker v. Crane, 21 Wend. 211; Ex parte Rogers, 7 Cow. 526; Merchant v. Worth, 10 Ohio St. 251; Sedg. St. & Const. Law (2d ed.), 331.

Such being the law, it is apparent that no such collective action was averred in the petition as gave to the relator any right to proceed against the auditor upon his refusal to issue a warrant. It is always true that in an application for a mandamus against a public officer the relator must show a good case upon the face of his petition; failing to do this, he would not be entitled to the writ, even though no answer whatsoever had been made to the application. The petition contains no averment that the board, properly convened for the purpose, had decided that the work was completed according to the contract as let. This the petitioner must both allege and prove. The decision of that matter rested with the board, and he must either show their determination or sufficient legal reasons for his failure. He did neither. The failure of the relator to comply with the requirements of section 7 of the act is equally fatal to his recovery. In that section the auditor is authorized to draw a warrant upon the treasury when he receives from the one who demands it a certificate of the board that the work has been duly completed. His power unefor the act is depend*69ent upon the receipt of that certificate. He is authorized to act only on its presentation. There can be given to him, in the discharge of his official duty in the premises, no other sufficient evidence that the warrant has been earned, and that anybody is entitled to it. This certificate must be, on its face and by its terms, the act of the board which the statute has created. The auditor, under our system, is an officer charged with the duty of protecting the public treasury from unauthorized drafts upon it. How far he may go in defense of the public funds need not be determined. That he may require all the evidence prescribed by the statute, complete in all its formal and essential particulars, there is no doubt. He could not do less and properly discharge his official duty. According to the averments of the petition, no such certificate was presented, nor was one ever given to the auditor. The certificate set up was signed by Thorpe as chairman of the board of county commissioners of Routt county. It recites the individual judgment and the individual action of the member signing it. It is true that its terms indicate that the board sought to delegate to this one member the power to act. But this does not cure the difficulty. One member was powerless to discharge the duty imposed upon the board or to exercise the power given to the whole body. The board, or a majority of it, were equally powerless to confer upon him the right to act in the premises. The presentation of the statutory certificate is a condition precedent. Without an averment that such a certificate was executed by the board as such, and pre*» sented to the auditor, the relator is without rights in the premises. The voucher which is afterwards set up in the relator’s petition is not the certificate required by the statute, nor can it properly be treated as such. It might perhaps be said, with some show of reason, that it tended to establish the relator’s claim to the extent of $4,000, and to show that he had earned that amount of money; but by no possibility of construction or intendment can it be held to be a certificate executed by the board, or by two mem*70hers of it, to the effect that the road was completed according to the contract as made.

It is needless to discuss the question whether it is within the power of any member of the board to act by deputy, where the board is specially created by statute. This question is expressly left undecided in this opinion. It is equally unnecessary to discuss the force and effect of the governor’s signature to the voucher. The signature was not to a certificate as designated and required by the statute, but was a direction as to the fund from which the bill to which it was attached should be paid. In no manner can it be said to be attached to the sort of a paper which the relator must produce. It is probably true that, had it been operative to give the relator any rights, the legal effect of it would not have been lost by its subsequent erasure. This, however, is unessential, in the view which has been taken of the statutory requirements and the relator’s rights.

The judgment of the court below should be reversed and the cause remanded, with directions to dismiss the petition.

Richmond and Reed, CC., concurring.

Per Curiam.

Por the reasons stated in the foregoing opinion the judgment of the court below is reversed and the cause remanded, with directions to dismiss the petition.

Reversed.