State ex rel. Pacific Bridge Co. v. Washington Toll Bridge Authority

• Decision Date: 12 April 1941
• Docket Number: 28314.
• Citation: 8 Wn.2d 337,112 P.2d 135
• Parties: STATE ex rel. PACIFIC BRIDGE CO. et al. v. WASHINGTON TOLL BRIDGE AUTHORITY et al.
• Court: Washington Supreme Court

112 P.2d 135

8 Wn.2d 337

STATE ex rel. PACIFIC BRIDGE CO. et al. v. WASHINGTON TOLL BRIDGE AUTHORITY et al.

No. 28314.

Supreme Court of Washington

April 12, 1941

On Rehearing June 30, 1941.

Department 1.

Original mandamus proceeding by the State of Washington, on the relation of the Pacific Bridge Company and others, against the Washington Toll Bridge Authority and others, to compel the respondents to issue and approve vouchers and draw warrants for the payment of the balance due on a contract for the construction of a bridge.

Writ issued.

Loren Grinstead and Arthur Grunbaum, both of Seattle, for relators.

Smith Troy, Atty. Gen., George Stuntz, of Seattle, and Oliver Malm of Olympia, for respondents.

DRIVER Justice.

This is an original application for a writ of mandamus whereby the relators, the three corporations which constructed the Narrows bridge in Pierce county, seek to compel the Washington Toll Bridge Authority and the state officers who are its members to issue and approve vouchers and draw warrants for payment of the balance due on the construction contract.

It appears from the pleadings and the briefs that the following facts are not in dispute:

On November 25, 1938, the toll bridge Authority entered into a contract with relators for the construction of a suspension-type bridge across a reach of Puget Sound near Tacoma, commonly known as 'The Narrows.' The contract contained the usual provision for retention by the Authority of a certain percentage of the contract price for a period of thirty days after completion of the work and acceptance thereof by the state director of highways.

The bridge was substantially completed on July 1 1940, when the Authority took possession, opened it to public travel, and began the collection of tolls. On October 29 1940, the acting director of highways issued a final estimate establishing a balance due the relators of $619,915.41; and, on the same day, the Authority approved such final estimate for payment.

On November 7, 1940, the bridge collapsed. On November 23rd, the insurance companies which had insured the structure gave the following written notice to the Authority: 'We further confirm having advised you of the importance of the Authority refraining from taking any action which could or might be construed as an acceptance of the work under said contract, or as a release of the contractors or their performance bond and sureties thereon from any responsibility otherwise theirs, arising out of the collapse of the bridge, and it our understanding that no such action is contemplated by the Authority.'

Since its receipt of this notice, the Authority has done nothing further toward payment of the balance due the relators, although no claim of any kind has been filed against the retained portion of the contract price. At the time of the filing of respondents' answer, the Authority had only $243,000 on hand in its construction fund.

The Washington Toll Bridge Authority was established and its powers and duties prescribed by the Laws of 1937, chapter 173, p. 654, Rem.Rev.Stat. Vol. 7A, § 6524-1 et seq. It is composed of the governor, the state auditor, the director of public service, the director of highways, and the director of finance, business and budget, all of whom act ex officio and receive no additiority compensation by virtue of Authority membership or service. A majority of the members is authorized to act for the Authority (§ 6524-2).

The Authority is empowered to construct toll bridges 'upon any public highways of this state' (§ 6524-3), and to pay for the same from any available funds (§ 6524-4) procured from the sale of revenue bonds (§§ 6524-7, 6524-8), and to fix and collect toll charges to retire the bonds and meet the expenses of operation and maintenance of the improvements (§ 6524-9). The statute further provides (§ 6524-14) that: 'Monies required to neet the costs of construction and all expenses and costs incidental to the construction of any particular toll bridge or toll bridges or to meet the costs of operating, maintaining and repairing the same, shall be paid from the proper fund therefor by the state auditor upon voucher submitted by the director of highways approved by the Washington Toll Bridge Authority.' (Italics ours.)

Relators maintain that they are entitled to a writ of mandate to compel performance of the ministerial acts necessary to effect final payment on their contract. They also seek recovery of costs and, by way of damages, interest and attorneys' fees.

The jurisdiction of this court should first be considered, although it is not questioned by respondents, since it cannot be conferred, in original mandamus, by stipulation, assent, or waiver. Art. IV, § 4, of the state constitution (its statutory counterpart is Rem.Rev.Stat. § 1) provides: 'The supreme court shall have original jurisdiction in habeas corpus and quo warranto and mandamus as to all state officers, * * *.'

Respondent Authority is a state agency. State officers acting ex officio comprise its entire membership. The instant case involves certain duties of the members of the Authority which the law has imposed upon them solely because they are state officers. Therefore, the respondents are subject to the jurisdiction of this court in original mandamus under the constitutional provision above quoted. State ex rel. North Coast Fire Ins. Co. v. Schively, 68 Wash. 148, 122 P. 1020; State ex rel. Dunbar v. State Board, 140 Wash. 433, 249 P. 996; State ex rel. Edelstein v. Foley, Wash., 107 P.2d 901.

The next question is whether this court should, in the exercise of its discretion, assume jurisdiction and consider the present case upon its merits.

It is a well-established practice to decline the assumption of original jurisdiction in either habeas corpus or mandamus proceedings except in cases which involve the interests of the state at large, or of the public, or when it is necessary in order to afford an adequate remedy. State ex rel. Ottesen v. Clausen, 124 Wash. 389, 214 P. 635; In re Emch, 124 Wash. 401, 214 P. 1043; In re Miller, 129 Wash. 538, 225 P. 429; State ex rel. LaFollette v. Hinkle, 131 Wash. 86, 229 P. 317; State ex rel. Goodwin v. Savidge, 133 Wash. 532, 234 P. 1; In re Cavitt, 170 Wash. 84, 15 P.2d 276.

In the Ottesen and the Goodwin cases just cited, the court quoted with approval from 18 R.C.L. 101, § 15, as follows: 'Though the state courts of last resort are given original jurisdiction to issue writs of mandamus, and under such a grant have in many instances exercised such jurisdiction frequently without their jurisdiction being questioned, it does not follow that such courts, whose principal function is to exercise appellate or supervisory jurisdiction, will assume original jurisdiction in all cases in which their aid may be sought and which otherwise may be a proper case for the use of the remedy. And in this connection the established rule seems to be that, as original jurisdiction is conferred in order that the court of highest authority in the state should have the power to protect the rights, interests, and franchises of the state, and the rights and interests of the whole people, to enforce the performance of high official duties affecting the public at large, and, in emergency (of which the court itself is to determine), to assume jurisdiction of cases affecting local public interests, or private rights, where there is no other adequate remedy, and the exercise of such jurisdiction is necessary to prevent a failure of justice, the court is vested with a sound legal discretion to determine for itself, as the question may arise, whether or not the case presented is of such a character as to call for the exercise of its original jurisdiction.'

The toll bridge Authority is a state agency (although a separate entity, as we shall point out later), and the general public has an interest in its transactions and affairs. It builds bridges (and tunnels) which public convenience or necessity requires upon the public highways only. The structures which it constructs become integral and important parts of the state highway system. We think that, under the circumstances, assumption of jurisdiction is warranted.

Passing to the merits, respondents contend the writ should not issue because:

(1) The situation was one which called for the exercise of 'administrative discretion relating to a governmental function' rather than the performance of a ministerial duty on the part of the Authority and its members; and (2) the Authority's lack of sufficient funds to pay the respondents the full balance due them constitutes a defense at least to the extent of the shortage. We shall discuss these two contentions in the order stated.

It is true that, in the absence of capricious or arbitrary action, mandamus does not lie to control the discretionary power of administrative or executive officers. State ex rel. Cowles v. Schively, 63 Wash. 103, 114 P. 901; Morris v. Favor, 134 Wash. 75, 234 P. 1040; State ex rel. Clithero v. Showalter, 159 Wash. 519, 293 P. 1000 (appeal dismissed, 284 U.S. 573, 52 S.Ct. 15, 76 L.Ed. 498); State ex rel. Boyle v. Ernst, 195 Wash. 214, 78 P.2d 526; King County v. Martin,

2 Wash.2d 504, 98 P.2d 686. The rule, however, does not apply to the case at bar. The work was completed and accepted, in accordance with the terms of the contract, by the acting director of highways, and there is nothing whatsoever Before us to indicate any mistake, bad faith, or fraud on his part in so doing. Nothing remains to be done except the purely ministerial acts necessary to effect payment of the balance of the contract price. The naked demand of the insurance companies that such payment be withheld does not change the situation. So...