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of that order, and the services were rendered in court. It would seem that this order or a certified copy of it should of itself be sufficient proof-which is the object of verification-to the county commissioners that the services had been rendered. It appears that the board entertained the claim, making no objection because of want of verification, and the statute does not prohibit the allowance of unverified claims.

That this suit was brought before the commissioners had finally acted upon the claim can avail defendant nothing, because it appears that between the time of the filing of the claim or order and the bringing of the suit, eight meetings of the county commissioners had been held. Plaintiff had a right to assume under such circumstances that the claim had been disallowed.

After the trial had commenced, the court allowed the plaintiff to amend his complaint by interlineation, and defendant urges that this amendment constituted a departure, setting up an entirely different cause of action from that stated in the complaint. The original complaint alleged that the court "appointed plaintiff as special prosecutor or prosecuting attorney to represent the people in the case of The People of the State of Colorado, plaintiff, and John Halpin, defendant, said case being a prosecution for murder, and that pursuant to said appointment plaintiff did act as special prosecutor for and on behalf of the people aforesaid, etc." The amendment was the insertion of the words, "to assist the district attorney," in place of the words, "as special prosecutor," where they occur after the word "plaintiff." Under the rule, well settled in such cases, the amendment was not a departure.-R. R. Co. v. Cahill, 8 Colo. App. 164; Messenger v. Northcutt, 26 Colo. 529.

There was no abandonment of the cause of action as stated in the complaint in any essential particular,

or in fact, as we view it, in any particular. A recovery upon the original complaint would undoubtedly have barred a recovery in a suit upon the complaint as amended. The cause of action in either case was the rendering of legal services as special counsel under appointment of the court in the prosecution of the case. Although the plaintiff may have assisted the district attorney, he was none the less a special counsel and a special prosecutor. The original complaint did not, as defendant contends, state a cause of action based upon the statute allowing the court in certain contingencies to appoint a special prosecutor or a special counsel to act for and in place of the district attorney. The complaint will bear no such construction.

The judgment will be affirmed.

[No. 2168.]



1. Mandamus.

Mandamus lies to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.

2. Mandamus-Pleading-Cities and Towns-Appropriation.

A petition for a writ of mandamus to compel the board of trustees of an incorporated town to allow a claim of the petitioner against the town for coal furnished to the town and to order a warrant drawn for its payment which fails to allege that a previous appropriation had been made concerning such expense is fatally defective.

Appeal from the District Court of Montrose County.

Mr. F. D. CATLIN, for appellants.

Mr. S. S. SHERMAN, for appellee.

Proceeding in mandamus to compel the board of

trustees of the town of Montrose to allow a claim of the petitioner against the town, and order a warrant drawn for its payment. The petition, filed July 11, 1899, alleged that the town was the owner of its own water works, and, during the month of September, 1898, purchased and received coal from the petitioner to be used in their operation, for which it promised to pay him the sum of $84.06 at the first meeting of the board after the month of the purchase; that at the first regular meeting of the board in October, 1898, the petitioner presented to the respondents his bill for the coal, to be allowed and paid, but, although he had frequently demanded its allowance and payment, the respondents had taken no action upon it; that the monthly revenue derived from the water works was more than sufficient to defray the expenses of their operation, and that since the presentation of the petitioner's claim the respondents had allowed and paid other claims out of the revenue from the water works. The respondents demurred to the petition for insufficiency; and, upon the overruling of their demurrer, answered, denying that they or any of them agreed to pay the petitioner for any coal, the sum of $84.06, or any other sum, either at their first meeting in October, or at any other time; denying that any demand. was ever made upon them for the allowance or payment of the petitioner's bill; denying that the bill was payable out of funds furnished by the operation of the water works, and denying that there were any such funds. The cause was heard on the petition and answer, and a peremptory writ ordered, commanding the respondents to take action on the claim at their next meeting.

Mandamus lies to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.-Mills' Ann. Code, sec. 307. We have been referred to no law specially

enjoining upon the respondents the duty of allowing or paying the petitioner's claim. The powers and duties of city councils and boards of town trustees, are specifically enumerated by the statute; but among those duties is not that of auditing claims.

However, it is not necessary that we should express ourselves definitely at this time on the question of the respondents' duty in the matter of passing upon this bill, for in another particular the petition is fatally defective. The corporation was prohibited by law from contracting the debt, or incurring the expense mentioned in the petition, unless a previous appropriation with reference to it had been made.Mills' Ann. Stats., secs. 4447, 4448, 4449. Without such appropriation there is no way in which the petitioner's claim can be enforced.-See Sullivan v. Leadville, 11 Colo. 483.

It was incumbent upon the petitioner to set forth in his petition every fact necessary to entitle him to the writ, and as the liability of the corporation was dependent upon a previous appropriation, an averment of such appropriation was necessary. In State v. Governor, 39 Mo. 388, Wagner, J., said:

"It is a familiar rule of pleading that the plaintiff must state in his petition all the facts specifically, which would be necessary, if true, to entitle him to maintain his action, or to have the relief which he seeks."-See also High's Ex. Rem., § 450; Merrill on Mandamus, § 255.

Upon the facts set forth in the petition, the respondents were not required to take any action of any kind upon the petitioner's claim, and the writ was erroneously ordered.

The judgment is reversed.






[No. 2156.]


Opinion Followed.

This case is affirmed on the opinion in the case of Chapman v. The Board of Commissioners of Phillips County, 17 Colo. App. 236.

Error to the County Court of Phillips County.

Mr. W. D. KELSEY, for plaintiff in error.

Mr. J. S. BENNETT, for defendant in error.

The facts are the same and the same questions are involved as in a case decided by this court at its recent January term.-Chapman v. Board of Commissioners of Phillips County, 17 Colo. App. 236, 68 Pac. 134.

Ballard, the plaintiff in this, was the assignee of Chapman, who was the plaintiff in the other. Suit in each case was to recover a part of the salary alleged to be due to Chapman by Phillips county, as superintendent of irrigation for water division number one. The controlling issue to be determined in each case was whether Phillips county was embraced within the limits of water division number one, as defined by statute. This there was an entire failure to show, in fact, all of the evidence introduced was to the contrary. It did not appear that any lands in Phillips county were irrigated by water from any of the streams mentioned in the statutes defining the limits of the district or division.

For this reason the judgment will be affirmed.

[No. 2164.]



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