Board of Com'rs of Pueblo County v. Ellis
| Decision Date | 19 November 1928 |
| Docket Number | 12034. |
| Parties | BOARD OF COM'RS OF PUEBLO COUNTY v. ELLIS. |
| Court | Colorado Supreme Court |
Error to District Court, Pueblo County; Samuel D. Trimble, Judge.
Action by James H. Ellis against the Board of County Commissioners of the County of Pueblo. Judgment for plaintiff, and defendant brings error.
Reversed.
E. L Weitzel, of Pueblo, for plaintiff in error.
Riley R. Cloud, of Pueblo, for defendant in error.
Plaintiff, Ellis, is a deputy water commissioner of water district 16, which includes parts of Pueblo and Huerfano counties. The compensation for his services under the law is paid in part by each county. Claiming that Pueblo county was indebted to him for services which he rendered during the months of October and November, 1923, which the board of county commissioners refused to pay, he brought this action against it to recover the same. Evidence was heard in behalf of both parties, and at its close the court, on the motion of the plaintiff, directed the jury to return a verdict for plaintiff in the amount of his claim, in the sum of $116, to review which judgment the county board has sued out this writ of error.
The compensation of a deputy water commissioner as fixed by chapter 134, S. L. 1923, is $5 per day for each day actually employed in the discharge of his duties. This includes traveling and other expenses, if any. A deputy water commissioner by this statute shall work only such times as directed by the water commissioner, the period to be determined by the water commissioner with the approval of the irrigation division engineer and the state engineer. There were five ditches in Pueblo county to which the plaintiff as deputy water commissioner distributed water to supply their demands. The evidence is uncontradicted that during October and November, 1923, there was an abundance of water for all of these ditches, if they desired it, and were in physical condition to receive it. The testimony further is that some of these ditches were, as the witnesses say, 'out of commission,' and could not receive or carry water, and that the other ditches, which were in condition to carry water that might be diverted into them, had an abundance of water, and there was no necessity for, or call upon, the plaintiff to distribute or apportion to those ditches water to which they respectively were entitled. As tending to corroborate such evidence already admitted, the defendant offered further to show, which offer the court rejected, that these was not any work for Ellis to do, and it was impossible for him to have rendered the services which he testified he had performed. The record is also clear that Mr. Beach, the division engineer of this division, in August or September of 1923, had directed Tirey, the water commissioner of the district, both of whom are superior officers of the plaintiff, Ellis, to lay off, or dispense with the services of, Ellis during the months of October and November, as there was no need thereof under the conditions above stated. There is no direct evidence that the water commissioner Tirey actually, in so many words, dispensed with the services of Ellis or 'laid him off,' but, after the receipt by Tirey of the order of his superior...
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