Board of Com'rs of Gunnison County v. Davis

• Decision Date: 06 July 1915
• Docket Number: 4046
• Citation: 150 P. 324,27 Colo.App. 501
• Parties: BOARD OF COM'RS OF GUNNISON COUNTY et al. v. DAVIS.
• Court: Colorado Court of Appeals

150 P. 324

27 Colo.App. 501

BOARD OF COM'RS OF GUNNISON COUNTY et al. v. DAVIS.

No. 4046

Court of Appeals of Colorado

July 6, 1915

Error to District Court, Gunnison County; Thomas J. Black, Judge.

Action by Theodore Davis, a taxpayer of the County of Gunnison and State of Colorado, against the Board of County Commissioners of such county and another. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with instructions.

E.M. Nourse, of Gunnison, and Crump & Allen and Edward J. Boughton, all of Denver, for plaintiff in error Mulnix.

Sapp &amp Nash, of Gunnison, for defendant in error.

PER CURIAM.

February 5, 1913, the board of county commissioners of Gunnison county employed Harry E. Mulnix, plaintiff in error, as an expert to audit the books and accounts of certain county officers the audit to include the years 1907 to 1912, inclusive, at an agreed compensation of $299.75 for each of said years. When Mulnix, with his assistants, attempted to make such examination and audit, the county treasurer and the clerk and recorder refused to allow the examination of their books and accounts, alleging as a reason for refusal that suit had been commenced to enjoin the execution of the contract. About that time the defendant in error instituted this proceeding seeking to restrain the said board and Mulnix from performing the contract. A temporary writ of injunction was issued, and on final hearing was made permanent. Defendants are here with their writ of error.

The principal question involved is whether or not the board of county commissioners has authority in law, at the expense of the public, to employ a person to audit the books and accounts of the several county officers. Incidentally, and subordinate thereto, are other questions which will be discussed and disposed of.

1. The board of county commissioners possesses such powers as are expressly conferred upon it by the Constitution and statutes, and in addition thereto such implied powers as are reasonably necessary to the efficient execution of its express powers and duties. Roberts v. People, 9 Colo. 458, 13 P. 630; Chase v. Boulder County, 37 Colo. 268, 271, 86 P. 1011, 11 Ann.Cas. 483; Robbins v. County Com'rs, 50 Colo. 610, 615, 115 P. 526. We entertain no doubt that when a specific duty is by statute imposed on the board, the power to employ such agencies as are reasonably necessary to effectually perform that duty is granted by implication, unless by statute the board is limited to certain means and agencies, by which such duty is to be performed or power exercised. "The county commissioners represent the county, and have charge of its property and the management of its business concerns. They are necessarily vested with reasonable discretion in the administration of county affairs." Roberts v. People, supra, 9 Colo. at page 472, 13 P. at page 637. It is expressly empowered to make all contracts and do all other acts necessary to the exercise of its corporate and administrative powers. Sections 1177, 1179, 1204, R.S.1908; sections 1288, 1290, 1313, M.A.S.1912. It is expressly charged with the duty of auditing the accounts of county officers, and correcting and adjusting the same. Section 2553, R.S.1908; section 2911, M.A.S.1912. The purpose and vital importance of an efficient audit is manifest from the statutory requirement that all prescribed fees shall be collected in advance by county officers, and when collected shall be paid to the county treasurer, and that any balance left to the credit of the several funds in any year, after the salaries and compensation provided for shall have been paid therefrom, shall be placed to the credit of the general county fund. The statute attaches severe penalties to the failure of such officers to pay over such fees. Section 2554, T.S.1908; section 2912, M.A.S.1912. It is common knowledge that in most counties of the state substantial sums should remain to the credit of the general county fund, and serve to relieve the heavy burden of taxation, if the official duty to charge, collect, and account for the statutory fees, and economically administer the offices of the county, is faithfully performed. That county officers charged with the collection, safe-keeping, and disbursement of public funds are not always competent, economical, and faithful, but sometimes commit gross errors, through incompetency or carelessness, sometimes are extravagant and unfaithful in accounting, and that some are even given to peculation and embezzlement is also common knowledge. Not many of the powers conferred, or duties imposed, on the board are paramount in importance to that of its supervision over the accounts of such officers. When it is known that such accounts will be effectually and frequently examined, and publicity given to the result, that knowledge will have a strong tendency to neutralize the temptation to peculation, and to encourage economy, accuracy, and honesty, in the discharge of official duty with respect to public funds, as well as to allay unjust suspicion. It is also common knowledge that county commissioners are not generally expert accountants, and may not be able to make an expert or efficient audit of such accounts. The board is not limited by statute to any specific means or agencies for making such audit. We conclude, therefore, that the board had the implied power to employ said accountant.

Statutes similar to those of this state, relating to the matters under consideration, were construed in Harris v....