15 Colo. 64 | Colo. | 1890
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
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
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.
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.