Mulnix v. Mutual Ben. Life Ins. Co.

• Decision Date: 29 June 1896
• Citation: 23 Colo. 81,46 P. 127
• Parties: MULNIX, State Treasurer, v. MUTUAL BEN. LIFE INS. CO.
• Court: Colorado Supreme Court

46 P. 127

23 Colo. 81

MULNIX, State Treasurer, v. MUTUAL BEN. LIFE INS. CO.

Supreme Court of Colorado

June 29, 1896

Error to district court, Arapahoe county.

Petition by the Mutual Benefit Life Insurance Company for mandamus to Harry E. Mulnix, state treasurer. Judgment for petitioner and respondent brings error. Affirmed.

Byron L. Carr, Atty. Gen., and Calvin E. Reed, Asst. Atty. Gen for plaintiff in error.

F. A Williams, A. M. Stevenson, and A. S. Blake, for defendant in error.

CAMPBELL J.

This petition for a writ of mandamus was filed in the district court to compel the state treasurer to pay a state warrant drawn upon him by the state auditor. This warrant was drawn in favor of Collier & Cleaveland, upon an account for services rendered in doing certain printing for the state departments under a contract therefor entered into between them and the secretary of state. The general assembly had made an appropriation to cover the costs of such printing and when this warrant was presented by the petitioner (to whom it had previously been assigned) there was, and still is, money in the treasury to pay it. The petition sets forth facts which, if true, constitute the warrant a legal obligation of the state. In his answer the state treasurer admits the issuing of the warrant, and sets up a number of defenses to show its invalidity, alleging that the constitutional and statutory method for letting the contract was not adhered to; that the printing for which the warrant was given was not covered by the advertisement of the secretary of state, or included in the bid of Collier &amp Cleaveland, or in their contract; that the prices charged were different from those specified in their bid, and were extortionate and excessive; and that the measurement of the work was incorrect and exaggerated. These defenses were all denied in the petitioner's replication. In the replication it is also alleged that the Ninth general assembly, by virtue of certain action taken by that body, adjusted the account for which this warrant was given, and ratified, and authorized the payment of, the same. In the view, however, we take of the case, it is not necessary to determine the effect of such action by the general assembly. Upon the trial the only evidence was that introduced by the petitioner, included in which was the warrant in controversy. When the petitioner rested its case the respondent interposed a motion to dismiss the proceeding on the ground of the insufficiency of the evidence. The language of the assistant attorney general, who conducted the trial below, gives the grounds of the motion. He said: 'As far as the position of the attorney general is concerned, we are depending entirely upon the invalidity of this contract. The answer attacks the validity of the contract from its very inception, and sets up the fact that there is an utter disregard of the constitution and statutory provision, and we will rely upon that entirely. As far as the matter of fact is concerned, we don't know as there is any dispute but what there were advertisements made, and bids and...