Ellis v. Moses

• Decision Date: 10 November 1924
• Docket Number: 10927.
• Parties: ELLIS, Treasurer of Saguache County, v. MOSES et al.
• Court: Colorado Supreme Court

230 P. 802

76 Colo. 214

ELLIS, Treasurer of Saguache County, v. MOSES et al.

No. 10927.

Supreme Court of Colorado

November 10, 1924

Department 3.

Error to District Court, Saguache County; J. C. Wiley, Judge.

Mandamus in the district court by Albert L. Moses and Elias H Ellithorp, copartners as Moses & Ellithorp, against Annie Ellis, as Treasurer of Saguache County, to compel payment of warrants. Alternative writ made permanent, and defendant brings error.

Reversed with instructions.

John I. Palmer, of Saguache, for plaintiff in error.

Moses &amp Ellithorp, of Alamosa, pro se.

CAMPBELL J.

This is the first, in order of filing in this court, of three cases numbered, respectively, on our docket 10927, Kerber Creek Irr. Dist. v. Woodard, 230 P. 807, 10930, and Kepley v. People ex rel. Everson, 230 P. 804, 11028. All of them directly or indirectly grow out of controversies between the taxpaying electors of the Kerber Creek irrigation district in Saguache county and its alleged board of directors and the secretary thereof, as to their official status and the official acts which the board claims that it performed. This action, No. 10927, is one in mandamus to compel the county treasurer of the county to pay, if there are available funds, or, if not, to register, as provided by statute, a warrant which was drawn by the alleged board in favor of the attorneys of the three directors, who claimed to be the sole members of the board, and who employed these attorneys to defend them in a quo warranto action by the people on the relation of Means and others, wherein the district court determined that only one of the three, T. E. Dunshee, was or ever had been a director of the district, either de facto or de jure, at the time of such employment, or when this warrant was drawn, or at any other time. No attempt has been made to have this judgment of ouster reviewed or set aside, and it is still in full force and effect.

Though apparently not in entire accord as to the propriety of consolidating these three actions for hearing here as one cause, counsel for both parties, who appear in all of them, refer in their briefs in one of the cases to the briefs and records in the other two, and ask us to observe a similar method in disposing of them. This we have done, as only by doing so may they be fairly and justly determined.

We have in this case for decision the question whether it was the plain duty of the county treasurer to register this warrant; it being conceded that he could not pay it, because there were no available funds in the treasury. Ordinarily a county treasurer, whose duties, perhaps, are largely ministerial, may not refuse to pay or register a warrant drawn on him by an administrative body like an irrigation district, on which a statute has conferred the power to draw it, and which also commands the treasurer to pay or register it. The warrant so drawn is presumed to be lawfully drawn. But the presumption may be overcome, in a mandamus to compel the treasurer to pay or register. Mulnix v. Mutual Benefit Life Ins. Co., 23 Colo. 81, 83, 84, 46 P. 127. If, however, the members of such a public administrative body are neither de facto nor de jure directors, are not so recognized by the public or the electors of the district having business with them, and especially where, as here, it has been judicially determined that such directors had no legal power or authority so to act, or where the board drawing the warrant has no authority in law to incur the debt or create the liability for which the warrant is drawn, the treasurer, drawee of the warrant, may properly refuse to register or pay the same. Miller v. Edwards, 8 Colo. 528, 9 P. 632.

The invalidity of this warrant clearly appears from the records of these cases. The district court which in this case made permanent the alternative writ of mandamus requiring the county treasurer to reglster this warrant, also on the same day, in cause 11028, rendered a judgment declaring in effect that the irrigation board which drew the warrant had no power or authority to act as a board at all. The board not having power to draw the warrant or order it drawn, the treasurer was right in refusing registration. The district court having declared the board, so constituted, an illegal body,...