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county, to be assessed and collected in the same manner and at the same time and rate of compensation as other county taxes, and when collected to be kept as a separate fund, in the county treasury, and to be expended under the direction of the said county court or board of supervisors, as the case may be, in liquidation of such indebtedness.'

The counsel for the respondent insists, with zeal and ability, that the authority thus given involves no duty; that it depends for its exercise wholly upon the judgment of the supervisors, and that judicial action cannot control the discretion with which the statute has clothed them. We cannot concur in this view of the sub. ject. Great stress is laid by the learned counsel upon the language, May, if deemed advisable," which accompanies the grant of power, and, as he contends, qualifies it to the extent assumed in his argument.

In The King v. The Inhabitants of Derby, Skinner, 370, there was an indictment against “diverse inhabitants” for refusing to meet and make a rate to pay “the constables' tax." The defendants moved to quash the indictment, “because they are not compellable, but the statute only says that they may, so that they have their election, and no coercion shall be." The court held that "may, in the case of a public officer, is tentamount to shall, and if he does not do it, he shall be punished upon an information, and though he may be commanded by a writ. this is but an aggravation of his contempt.

In The King and Queen v. Barlow, 2 Salkeld, 609, there was an indictment upon the same statute, and the same objection was taken. The court said: “When a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall: thus, 23 Hen. VI, says the sheriff may take bail. This is construed he shall, for he is compellable to do so.'

These are the earliest and the leading cases upon the subject. They have been followed in numerous English and American adjudications. The rule they lay down is the settled law of both countries.

In The Mayor of the City of New York v. Furze, 3 Hill, 614, and in Mason v. Fearson, 9 Howard, 248, the words "it shall be lawful" were held also to be mandatory.

The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language-whenever the public interest

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or individual rights call for its exercise—the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depository to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.

In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to im. pose “a positive and absolute duty."

The line which separates this class of cases from those which involve the exercise of a discretion, judicial in its nature, which courts cannot control, is too obvious to require remark. This case clearly does not fall within the latter category.

The Circuit Court properly awarded a peremptory writ of mandamus. . We find no error in the record. The judgment below is



Supreme Court of Colorado. April, 1896.

23 Colorado, 71.

Mr. Justice CAMPBELL delivered the opinion of the court.

The Insurance Company, as petitioner, by mandamus, seeks to enforce the payment of a State warrant drawn by the State auditor upon the State treasurer. Prior to the convening of the seventh general assembly the secretary of state, in pursuance of the statute, by an advertisement duly made, invited sealed proposals for stationery and certain other articles required by said general assembly and the executive department of state for two years commencing on the 2nd of January, 1889.

Lawrence & Co. tendered a bid, which, upon investigation, was accepted by the secretary of state, and a contract was duly entered into with them for supplying such articles as were covered by their bid. Thereafter they furnished stationery and certain other articles to the general assembly and to the various executive departments, which were received and used by the state. The statement of accounts for the same were rendered to the then auditor of state, and by him audited, settled, approved and allowed, and thereupon

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the auditor drew upon the treasurer the warrant which is the subject-matter of the controversy here, the same being on account for the articles so furnished. This warrant before the beginning of this proceeding, was duly indorsed to the petitioner, and presented by it to the then treasurer of the State, who refused payment.

An appropriation has been duly made by the general assembly for the payment of this claim, and the money to pay the warrant was in the state treasury at the time of its presentation, and is still there.

The treasurer made answer to the petition, from which, and the brief of the attorney-general, it appears that the sole defense relied upon is the illegality of the warrant, which illegality is said to consist in the fact that a part of the consideration therefor was illegal in this, that some of the articles furnished to the general assembly by the petitioner's assignors were not included in the advertisement, in their bid or contract, as is required by law in such cases. The court below awarded the peremptory writ, to which judgment the treasurer prosecutes this writ of error.

There is no charge in these pleadings of fraudulent conduct on the part of the secretary of state in advertising for bids, or of fraud in the bid itself, or in the auditing of the account. The sole defense is that some of the articles furnished and received and used by the state were not embraced in the advertisement, or included in the bid of petitioner's assignors, or covered by their contract, but were purchased by the secretary of state in the open market.

This is conceded by the petitioner, and upon this fact the claim is made, on the one side, that this purchase was without authority of law, and ultra vires the secretary of state, while upon the other side the contention is that he had the implied power to make this purchase.

The parties agree that the warrant does not possess the qualities of negotiable paper, but is open to the same defenses as though the proceeding were to compel the auditor to allow the account and draw his warrant therefor. It is also agreed that if any part of the consideration is illegal, the warrant is void.

The rule is fundamental that "in cases of public agents, the government, or other public authority, is not bound, unless it manifestly appears that the agent is acting within the scope of his authority, or he is held out as having authority to do the act." Story on Agency (8th ed.) sec. 307a; Mechem on Public Officers, sec. 834; Whiteside et al v. United States 93 U. S. 247; Hawkins v. United States, 96 U. S. 689; Durango v. Pennington, 8 Colo. 257; Sullivan v. City of Leadville, 11 Colo. 483.

As expressed in another form, it is said: "Every person who seeks to obtain, through his dealings with the office, the obligation of the public, must, at his peril, ascertain that the proposed act is within the scope of the authority which the law has conferred upon the officer.” Mechem on Public Officers, sec. 829 et seq., citing The Floyd Acceptances, 7 Wall 666 and other cases.


It follows that the power to reject bids, or the duty to supply the departments of state with articles necessary for their use, which this act contains, does not carry with it, nor do both combined carry by implication, the power to disregard both the statute and the constitution, or confer the power to go into the open market and buy. The duty to secure these things might, by implication, give authority to buy in any reasonable way, were it not that this power is otherwise limited by the constitution and the statute; and this method, being the essential thing to protect the state, must be held to be exclusive and mandatory. The various other arguments adduced in support of the contrary rule do not address themselves to us with any degree of force.

For the foregoing reasons the judgment of the district court is reversed and the cause remanded with directions to dismiss the proceeding.


But the exercise of discretionary duties may not be controlled by mandamus. State v. Whitesides, 30 S. C. 579, and State v. Wilson, 123 Ala. 259, infra. As to the liability for negligence in the performance of minis. terial and discretionary duties respectively, see Robinson v. Rohr, 73 Wis. 436, and Goodwin v. Guild, 94 Tenn. 486 infra.


Supreme Court of New Jersey. February, 1870.

34 New Jersey Law, 163. SCUDDER, J. The board of aldermen of the city of Paterson, on June 28th, 1869, passed the following resolution, viz.:“WHEREAS, the city charter does empower the mayor and aldermen of the

city of Paterson to purchase grounds whereon to build a public market; therefore, be it

Resolved, That the mayor and aldermen of the city of Paterson, deeming it right and expedient that the city should own a public market, this board do now, in accordance with the one hundred and seventy-fifth section, title ten, of the city charter, appoint Philip Rafferty, William G. Watson, and George Christie, commissioners, to proceed in the premises according to law, and purchase a site and build a public market thereon.

It is admitted for the purpose of this case, although the return is not complete, that the resolution was regularly passed and approved according to the requirements of the charter.

The prosecutor, Charles Danforth, a citizen, property owner, and tax-payer of Paterson has, by certiorari brought this resolution into this court to determine its legality.

Waiving for the present the consideration of several preliminary questions raised on the argument, let us consider the proper legal construction of the one hundred and seventy-fifth section of the charter referred to in the resolution, and afterwards the form of the resolution itself.

This section (Lau's 1869, p. 769,) enacts "that for the purpose of carrying out and effecting the purposes and objects provided for and authorized in the one hundred and sixty-fifth, one hundred and sixty-seventh, one hundred and seventy-first, one hundred and seventy-second, and one hundred and seventy-third sections of this act, the mayor and aldermen of said city are hereby authorized and directed whenever they shall decide to carry out and effect such purposes and objects, or any of them, to appoint three discreet persons, residents and citizens of said city, as commissioners, who shall have full power and authority on behalf of, and in the name of said mayor and aldermen, to make all contracts and purchases, and to transact and perform all business necessary in relation thereto, or connected with any of such purposes and objects; and the acts and contracts so made by said commissioners and by them reported to the board of aldermen, shall be binding upon such mayor and aldermen, and upon the said city, as fully and completely as if they had been made directly by said mayor and aldermen;'

The sections referred to in this one hundred and seventy-fifth section all relate to certain public improvements, viz., section one hundred and sixty-five, to public parks; section one hundred and sixty-seven, to a city hall and other buildings, and public mar

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