Schwanbeck v. People ex rel. Smith

• Decision Date: 30 June 1890
• Citation: 24 P. 575,15 Colo. 64
• Parties: SCHWANBECK, Auditor, v. PEOPLE ex rel. SMITH.
• Court: Colorado Supreme Court

24 P. 575

15 Colo. 64

SCHWANBECK, Auditor, v. PEOPLE ex rel. SMITH.

Supreme Court of Colorado

June 30, 1890

Commissioners' decision. Error to district court, Arapahoe county.

This is a petition filed in the name of the people by the relator Smith, against Louis B. Schwanbeck, the auditor of the state whereby the petitioner seeks to compel the auditor to issue to him a warrant upon the public treasury for a certain amount of money. In general, the petition alleges that on April 19, 1889, the legislature passed an act providing for the construction of a wagon road through Bear River canon between Steamboat Springs and Hayden, in Routt county. The act appropriated the money necessary for the building of the road, and the act itself was approved. The petition set up generally that the governor, the state engineer, and chairman of the board of county commissioners were constituted a board to see that the road was surveyed and laid out, and, after proper advertisement for bids, to let a contract for its construction. The petitioner further set up his performance of the work under the contract as made by the board, and attempted to set out a presentation to the auditor of such a certificate as the statute required. The certificate was in the following words: 'To whom it may concern, and to the board of construction on the Canon road below Steamboat Springs, Routt Co., Colo.: It was heretofore agreed that I the undersigned, should inspect and accept said road, which I hereby certify that I did this day and date, and in my judgment the road is in compliance with the contract, and that S. L. Smith has completed said contract. S. H. THORPE, Chairman Board Const.' To strengthen that certificate, or as a part of it, the petitioner likewise set up the following paper, in the nature of a bill audited or a voucher:

'To S. L. Smith, Dr. ----------------------------------------------------------- 1890. Dollars. Cents. ----------------------------------------------------------- As per itemized bill attached to contract for construction of state wagon road through Bear River canon, as authorized by H. B. 134, approved April 19, 1889.................................... 4,000 00 -----------------------------------------------------------

'Approved January 6, 1890.

'J. P. MAXWELL, State Engineer.

'By JOHN S. TITCOMB,

'Deputy State Engineer.

'Pay from Bear River road fund.

'JOB A. COOPER, Governor.

'Received of the auditor of the state of Colorado, warrant No. _____, in payment of the above account.

'[Sign here.] ________.'

No other certificate of any sort was alleged to have been presented. Upon this petition a writ of mandamus was prayed to compel the auditor to issue the warrant. An answer was presented in which the substantial defense set up was the failure on the part of the relator to complete his work, and to obtain and present the certificate required by the statute. Subsequently the relator filed a demurrer to the answer, and the cause came on for hearing upon those issues. The statute under which the writ was applied for is known as 'House Bill 134,' and found on page 435, Sess. Laws 1889. Section 2 is as follows: 'Sec. 2. The governor and the state engineer of this state, with the chairman of the board of county commissioners of Routt county, shall be, and are hereby made, a board for the purpose of laying out and constructing such wagon road.' 'Sec. 7. Upon the completion of said road according to contract, and upon the presentation of a certificate of said board to that effect, the auditor of state is hereby authorized to draw warrants for the amount appropriated by section one of this act, or so much thereof as may be necessary, for the purpose of paying the amount due on said contract.'the amount due on the contract. A petition by the contractor, to compel the auditor to issue warrants to him under the act, contained no averment that the board, properly convened for that purpose, had decided that the road was built in accordance with the contract. The certificate of approval of the work, set out in the petition, was signed by only one member of the board, though its terms indicated that the signer had been delegated power to act by the other members, and the names of the latter were attached to a voucher of indebtedness to the contractor. Held, that the petition should be dismissed.

S.W. Jones, Atty. Gen., and H. Riddle, for plaintiff in error.

Rucker & Titcomb, for defendant in error.

BISSELL C.

That an action will lie 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 Routt county. Whatever power was conferred by the legislature was...