Winters v. Ramsey

• Decision Date: 29 January 1895
• Citation: 4 Idaho 303,39 P. 193
• Parties: WINTERS v. RAMSEY, STATE AUDITOR
• Court: Idaho Supreme Court

39 P. 193

4 Idaho 303

WINTERS v. RAMSEY, STATE AUDITOR

Supreme Court of Idaho

January 29, 1895

STATE WAGON ROAD-CONTRACT FOR CONSTRUCTION-BOARD OF EXAMINERS-ISSUANCE OF WARRANT.-Where contract for construction of a section of the state wagon road stipulates that final payment will be made when the contract is executed to the satisfaction of the state wagon road commission and the board of examiners, the auditor cannot be required to issue warrant until the road is examined by said board of examiners and their report made, and said board is entitled to reasonable time within which to make such examination.

SAME-BILL FOR FINAL PAYMENT.-The bill for such final payment must also be submitted to state board of examiners.

(Syllabus by the court.)

An original proceeding in supreme court on petition for writ of mandate.

Motion to quash the alternative writ allowed, and petition dismissed.

W. E Borah, for Plaintiffs, files no brief.

George M. Parsons, Attorney General, for Defendant.

Petitioners set up a contract executed by them, in which it is expressly stipulated that they shall receive final payment, when they have executed their contract to the "satisfaction approval and acceptance of said wagon road commission and the board of examiners," appointed to finally inspect approve, and accept said division of said road. The board of examiners appointed to inspect, approve and accept it if satisfactory, have had no opportunity to make an examination. How can petitioner, at this time, contend that he has a legal right to the performance of the duty resting upon the state auditor of making final payment for the work. It is apparent from their own pleadings that the conditions precedent, that would establish their legal right to the issue of a warrant have not been performed. Mandamus will not lie to compel a public officer to do an act not clearly commanded by law. (Puckett v. White, 22 Tex. 559.) The auditor is not a purely ministerial officer when acting officially in the settlement of accounts. (Rev. Stats., sec. 212; State v Applegate, 51 N. J. L. 117, 16 A. 60, 61.) When necessary for officer to examine evidence before forming his ultimate judgment, the writ will not issue. (United States v. Seaman, 17 How. 225; High's Extraordinary Remedies, sec. 43.) This rule extend to all officers. (High's Extraordinary Remedies, sec. 46.) Nor will it issue where there is any substantial defect in the proof of the relator's rights. (High's Extraordinary Remedies, sec. 39; Bracken v. Wells, 3 Tex. 88.) And the writ will not issue to compel the doing of a thing he is not yet under obligations to perform. (High's Extraordinary Remedies, sec. 36.) The defendant owes no duty to relators; the duty of the officer in this case is to the state. (People v. Wood, 35 Barb. 659, 660; Rev. Stats., sec. 4977.) Under the constitution the auditor has no legal right to draw his warrant until the claim of relator has been passed upon by the state board of examiners. (Idaho Const., art. 4, sec. 18; State v. Hallock, 20 Nev. 326, 22 P. 123.)

This is a petition to compel the state auditor to issue warrant to plaintiffs for the sum of $ 5,950, balance claimed to be due plaintiffs for the complete performance of their certain contract with the state wagon road commission of Idaho for the construction of a division of the so-called "state wagon road." The facts, as stated and admitted, are, in brief, that on the thirtieth day of December, 1893, the plaintiffs made a contract with said state wagon road commission for the construction of a certain division of said road; that on or about the twentieth day of October, 1894 the plaintiffs fully completed said division in accordance with said contract and the specifications attached thereto; that the engineer of said state wagon road commission reviewed said road, and duly received and accepted the same as complete and finished, to the satisfaction and acceptance of said engineer. On the fifth day of January, 1895, the plaintiffs presented their said bill to the said state wagon road commission for the said balance due, to wit, $ 5,950; and said wagon road commission approved the same, audited and allowed the bill, authorized its payment, and certified the same to the state auditor. Said bill, so audited and approved, was then presented to the state auditor, defendant herein, with the request that he draw a state warrant to plaintiffs for said amount. The state auditor refused so to do, for the reason that the governor of the state had not been notified by said state wagon road commission of the completion until December 30, 1894, and that then, on account of the...