dissenting:
I am in disagreement with the other opinions because I am satisfied the legislature has provided administrative remedies by which claims may be presented, heard and determined. Where primary jurisdiction is reposed in an administrative agency, the court is not the forum to which the claimant may resort for relief in original proceedings. 73 C.J.S., pg. 347, §40. Furthermore, the statutorily created administrative remedy must be exhausted before application may be made to the courts to assume jurisdiction. Hannum v. Hillyard, 131 Colo. 37, 278 P. (2d) 1015. Only where the tribunal exercises judicial functions may such review be had. State Board v. Carpenter, 16 Colo. App. 436, 66 Pac. 165; Civil Service Comm. v. Cummings, 83 Colo. 379, 265 Pac. 687. And in the absence of a plain, speedy and adequate remedy at law, review in the nature of certiorari lies. Swift v. Smith, 119 Colo. 126, 201 P. (2d) 609.
If these conditions are present, the court’s sole function then becomes that of ascertaining whether the administrative authority “has exceeded its jurisdiction or abused its discretion.” 106 (a) (4) R.C.P. Colo. Once an administrative body is vested with the power of conducting hearings and making determinations which are judicial in nature, its actions in such hearings are always reviewable upon proper ánd timely presentation in a *36court on charges of acting in excess of jurisdiction or arbitrarily.
Application of the foregoing principles to the instant case leads to conclusions inconsonant with those reached in the other opinions. An orderly administrative procedure is outlined in the statutes. C.R.S. ’53, 130-2-1, provides that: “Persons having claims against the state shall exhibit the same, with the evidence in support thereof, to the state controller to be audited, settled and allowed within two years after such claim shall accrue, and not afterwards.” Provision is made for the set-off of claims against the state in suits instituted by the state. C.R.S. ’53, 130-2-2. The next section sets up the machinery for hearings in these words: “The controller whenever he may think it necessary to the proper settlement of any account, may examine the parties, witnesses and others, on oath or affirmation, touching any matters material to be known in the settlement of such account, and for that purpose may issue subpoenas, and compel witnesses to attend before him and give evidence. Upon failure or refusal of any witness to obey any subpoena, the controller may petition the district court, and upon proper showing, the court may enter an order requiring the witness to appear and testify or produce documentary evidence. Failure to obey the order of court shall be punishable as a contempt of court.” By C.R.S. ’53, 130-2-4, it is provided: “In all cases where the laws recognize a claim for money against the state, and no appropriations shall have been made by law to pay the same, the state controller shall audit and adjust the same, and when the claim shall have been approved by the governor and attorney general, he shall give the claimant a certificate of the amount thereof, under his official seal if demanded, and shall report the same to the general assembly, with as little delay as possible, giving a statement in tabular form of the number, date of issue, and amount of each certificate and for what purpose issued. No indebtedness shall be incurred, or *37certificate of indebtedness issued, for any purpose for which an appropriation has been made and exhausted, unless the necessity for the creating of such indebtedness, and the issuing of such certificate, is caused by a casualty happening after the making of the appropriation; and in all such cases the question of incurring such indebtedness shall be first submitted to the governor and attorney general, for their approval.”
Since the controller “is called upon to audit and examine claims,” in the doing of which he “is invested with judicial powers,” People v. Auditor, 2 Colo. 97, his actions are the subject of review by courts. There being no specific provision for review, the general law, reposing in courts the power to review in order to ascertain whether the controller acted in excess of jurisdiction or arbitrarily, applies.
“Boards for the audit and adjustment of public indebtedness and claims against the states are very common instrumentalities in the administration of their finances.” Post Printing and Publishing Co. v. Shafroth, 53 Colo. 129, 124 Pac. 176. And Colorado has frequently adopted such administrative procedure. “Similar powers and duties by executive officers and boards in the auditing and allowance of claims, and the funding of public indebtedness, both by constitutional provisions and legislative enactments, have repeatedly been adopted in this state. Without being understood as passing upon the constitutionality of any such legislative enactments, we call attention to a few of the many heretofore in force. The auditor of state is authorized to audit and settle all claims against the state, and to issue warrants in payment therefor, thereby deciding, who is entitled to a warrant, the amount of the indebtedness, etc.
“Sections 6204 and 6234, Revised Statutes, 1908. Our statutes have always required that persons having claims against the state shall exhibit them with the evidence in support thereof to the auditor to be by him audited, settled and allowed. Section 6232, supra.
*38“Also, that the auditor may examine the parties, witness and others on oath touching matters material to be known in the settlement of such accounts; he may issue subpoenas and compel witnesses to attend before him and give evidence in the same manner and by the same means allowed by law to courts of record. Section 6234, supra.” (Emphasis supplied.) Post Printing and Publishing Co. v. Shafroth, supra.
Similar statutory provisions are to be found in most states of the Union. Under varying circumstances their purpose, scope and nature have been defined. So far as can be ascertained all claims based upon rights flowing from contracts must be lodged, and pursued to determination, before the designated agency. Clark v. Carter, 86 Okla. 126, 209 Pac. 932; State v. Angle, 56 Ariz. 46, 104 P. (2d) 172; State v. Brandon, 244 Ala. 62, 12 So. (2d) 319; U’Ren v. State Board, 31 Calif. App. 6, 159 Pac. 615.
In the last cited case language having a particular pertinency to our problem is to be found. I quote: “In the closing brief of appellant it is earnestly and elaborately contended that, since as a fundamental proposition the state cannot be sued without its consent, and since this action is in the nature of a suit to compel the payment of money to plaintiff by the state, that it cannot therefore be maintained. But to our minds this principle has no application to the instant case. This is not in form or substance an action against the state to determine a contested claim against its treasury. The state has already by the act of its Legislature set apart a specific fund for the payment of such obligations as the conservation commission had power to create; and the state has also by legislative act invested said conservation commission with the express power to create this specific obligation through its employment of the plaintiff to assist in carrying into effect the objects of .its existence. The state is thus in a position of having assented to this claim; and this is an action or proceeding merely *39to compel the official auditor in the form of the board of control to perform a duty expressly enjoined upon it by law.”
As limited by the scope of review afforded by Rule 106 (a) (4), the state is amenable to court action, and not otherwise. This suit lacks most of the elements necessary to bring it within the rule.
It is my opinion that this case should be affirmed on the ground of failure to invoke and exhaust the administrative remedy created by the cited statutes.
Mr. Justice Hall concurs in this dissent.