City of Denver v. Republican Publishing Co. ( 1916 )

Gabbert, C. J.,

delivered the opinion of the court:

According to the averments of the complaint, the legal notices paid for were published under special contracts at a specified rate per line; that in the bills rendered and paid the defendant charged at the rate of fourteen lines per inch for each of the notices, which it is averred was an overcharge of two lines per inch, and that plaintiff believing the accounts rendered were correct, paid them, when in fact they were not correctly stated. By these allegations we understand from the briefs of counsel representing plaintiff it is alleged that defendant rendered bills for a specified number of lines which, however, were computed by counting fourteen lines to the inch, instead of twelve lines to that space. There is no allegation in the complaint setting up fraud, deceit or any wilful attempt on the part of defendant to obtain any sum of money not due it under the provisions of the contracts between the parties, and the claim of plaintiff is based entirely upon the assumption that in the bills rendered the number of lines were computed at fourteen per inch, when they should have been computed at twelve. Conceding this to be correct, plaintiff has not stated a case. The city was empowered to enter into contracts for its official advertising, and when the accounts therefor were presented for payment, the only question for its authorized official to determine was whether they were correct. This duty devolved upon the auditor. There is no averment from which it can be inferred that such accounts were so itemized that he was misled, or that defendant made any misrepresentations regarding them, or that by reason of any action on the part of defendant he was precluded from ascertaining the number of lines contained in each notice, computed in conformity with the statute, even if it be conceded that the computation should have been so made. It is simply averred that plaintiff believed the accounts were correct and paid them, which must be taken to mean that the auditor believed them to be correct, without any investigation, and issued warrants therefor, which were paid by the treasurer. When power is given an official of a city to audit and allow claims legally chargeable against it, the law presumes that he will investigate those presented, and it is clearly his duty to do so. He cannot formally allow a claim without any investigation, or effort to investigate, and the city afterwards be permitted to rescind his action, because of facts existing but not known at the time the account was allowed, and which a proper examination would have brought to his attention. To hold otherwise would encourage gross carelessness in the performance of' official duties'in reliance upon a future investigation to correct, and no one would know whether the allowance of his account was final, or at least until the statute of limitations had set the question at rest. In the absence of fraud the official who is given the power to allow claims, when he has officially passed upon a claim, must be conclusively presumed to have had at the time full knowledge of all the facts pertaining thereto which a proper investigation would then have disclosed. Ward v. Barnum, 10 Colo. App. 496, 52 Pac. 412; Advertiser & Tribune Co. v. Detroit, 43 Mich. 116, 5 N. W. 72:

The judgment of the District Court is affirmed.

Judgment Affirmed.

Hill, J., and Teller, J., concur.