Board of Councilmen of City of Frankfort v. State Highway Com'n

• Citation: 32 S.W.2d 1008,236 Ky. 253
• Parties: BOARD OF COUNCILMEN OF CITY OF FRANKFORT v. STATE HIGHWAY COMMISSION et al.
• Decision Date: 20 June 1930
• Court: Kentucky Court of Appeals

32 S.W.2d 1008

236 Ky. 253

BOARD OF COUNCILMEN OF CITY OF FRANKFORT v. STATE HIGHWAY COMMISSION et al.

Court of Appeals of Kentucky

June 20, 1930

As Modified on Denial of Rehearing December 19, 1930.

Appeal from Circuit Court, Franklin County.

Suit by the Board of Councilmen of the City of Frankfort against the State Highway Commission, and others. From judgment dismissing the petition plaintiff appeals.

Reversed and remanded.

THOMAS C.J., and DIETZMAN and REES, JJ. dissenting.

F. M Dailey, of Frankfort, for appellant.

J. W Cammack, Atty. Gen., and Clifford E. Smith, Asst. Atty. Gen for appellees.

STANLEY C.

This suit is in the nature of a mandamus proceeding to compel the state highway commission and the members thereof to perform a contract which was entered into between the commission and the board of councilmen of the city of Frankfort on July 23, 1923. By the contract the commission agreed to take over for reconstruction, according to its plans and specifications, 1.972 miles of certain streets in Frankfort, constituting state project No. 17a, Franklin county (but now known as U.S. Highway No. 60), and to maintain same. The contract for the work was to be awarded by the commission subject to the approval of the council. The cost was to be assessed by the city against the abutting property and the Interurban Trunk Railway Company (succeeded by the Kentucky Traction & Terminal Company). The commission firmly bound itself to pay one-half of the cost of construction, which was to be credited on the warrants of the property owners in a manner set out in the contract. It further bound itself to maintain thereafter the streets as a part of the public highways of the state. No question is raised as to the legality of the procedure taken by the city. The authority of the commission to make the contract is to be found in section 8, of chapter 17, Acts of 1920, establishing the highway commission (published as section 4356t--8, in the 1922 edition of the Statutes), which is as follows:

"When any primary road herein designated must pass through a city or town, the state highway commission is hereby empowered to enter into a contract with such city or town for the construction of such road if the road through the city or town is to be different from the road constructed outside of the city or town, but if the road is the same the cost thereof shall be paid as is the cost of other roads designated herein. In the event it is necessary to construct a road or street at a greater cost than is paid for construction of a like lineal mileage outside of the city or town, such city or town must pay the additional cost of construction, and the details shall be agreed upon between such city or town and said state highway commission."

This section was construed in Wickliffe's Executors v. Smith, 225 Ky. 796, 10 S.W.2d 291; and Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521. It may be said in passing that that law was changed by chapter 178 of the Acts of 1928, but the modification could not affect the contract rights here involved.

The petition of the council against the commission, the Irvine Construction Company, the Traction Company, and Leslie W. Morris, who owns abutting property, was filed November 24, 1924. It asked that the commission be required to carry out the terms of its contract, and for a declaration of rights of the plaintiff and the three other defendants. It was therein shown that pursuant to the contract the commission had received as the lowest and best bid one of the Irvine Construction Company in the sum of $215,052.15, but it does not appear that any contract was entered into with that company.

A special demurrer of the commission on the ground that the action was against the commonwealth without its consent was overruled and an answer filed. The members of the commission were then individually made parties by amendments. The answer set up various defenses, including a denial of the right to maintain the suit; that the contract was ultra vires; and that it had been canceled by order of the commission because of the limitations placed upon it by this court in the case of Billeter & Wiley v. State Highway Commission, decided May 6, 1924, reported in 203 Ky. 15, 261 S.W. 855. Several demurrers and motions were passed on by the court from time to time, and on January 17, 1929, an amended petition was filed alleging that since the filing of the original petition the streets had become in bad repair, and because of the necessity of maintaining them in a reasonably safe condition and the refusal of the commission to perform its contract, the city, by proper ordinances and resolutions, had caused them to be constructed at the expense of the city and abutting property holders at a cost of $103,072.46. A list of the property owners, with the amount paid by each, was filed as an exhibit. It is stated that the city was suing in its corporate capacity and for the use and benefit of the abutting property holders and all of its citizens. It prayed judgment against the commission for one-half of the cost of construction, to wit, $51,536.23, which it is averred should be prorated among those entitled to it. The amended petition further asked that the commission be required to take over and maintain the streets involved.

The court sustained a special demurrer to the petition as amended, on the ground that the suit was in effect one against the commonwealth without its consent, and the petition was dismissed. Only that action of the trial court is before us.

The immunity of the commonwealth as the sovereign from suit without legislative consent is absolute and unqualified. The state highway commission is an agency of the commonwealth and not a separate corporate body. Section 231 of the Constitution provides that the General Assembly may direct in what manner and in what courts suits against the commonwealth may be sustained. Under that section may be found references to numerous cases construing this organic principle, and we shall not here enter upon the treatment of that subject generally, but confine ourselves to authorities having specific application.

In the recent case of Taylor v. Westerfield, 233 Ky. 619, 26 S.W.2d 557, 69 A. L. R. 482, the sound reasons for exempting the state and its agencies from liability for damages either in tort or on contract are given and the doctrine of their immunity reaffirmed. But as to an independent contractor who is engaged in road construction and who may be guilty of negligence the rule was changed and several cases were overruled.

In Hunt-Forbes Construction Company v. Robinson, 227 Ky. 138, 12 S.W.2d 303, the general rule in this state is given as being that a suit for damages may not be maintained against a contractor doing work under and in accordance with a contract with the state highway commission in the absence of negligence. This on the theory that the contractor is but an agent of the commission, and it would be in effect a suit against the commonwealth.

B. B. Wilson & Co. v. Van Diver, 230 Ky. 27, 18 S.W.2d 308, was a suit which involved the question of making the state highway commission a garnishee in an action against one it owed under a contract. It was held that the commission is not a body corporate and that it was the state which owed the money sought to be attached, and so far as the attachment was concerned it was in reality a suit against the state and could not be maintained. Of like character is Looney v. Stryker, 31 N.M. 557, 249 P. 112, 50 A. L. R. 1404.

However, it does not seem to us that this case is to be brought within the rules affirmed in those cases. It is not a suit for damages or, strictly speaking, to collect a debt. It is a suit to compel the officers of the state to perform their undertaking made in behalf of the state under its direct authority. The rule that suits may not be maintained against officers or agencies who are but nominal parties where the state is the real party in interest does not apply where the suit is instituted against the agency or officer to compel performance of a duty required by statute. 25 R. C. L. 414. An action against state officers to compel them by mandamus or other similar process to perform official duties of a purely ministerial nature, involving no discretion as to the use of political or governmental power, is not a suit against the state and may be maintained without its consent. White Eagle Oil & Refining Company v. Gunderson, Governor, 48 S.D. 608, 205 N.W. 614, 43 A. L. R. 397. The commission had exercised its authorized discretion when it made the contract. This principle was applied in State ex rel. v. Toole, Governor 26 Mont. 22, 66 P. 496, 498, 55 L. R. A. 644, 91 Am. St. Rep. 386, where a board, composed of the Governor, Attorney General, and secretary of state, and constituting a "State Furnishing Board" had, because of a protest received from a labor union, refused to execute a contract after legally making an award for the purchase of supplies and furniture for the capitol. Said the court:

"But the present proceeding is not, in effect, an action or proceeding against the state. If the allegations of the petition are true, the proposal of the plaintiff was regularly accepted, and the contract let to it as the lowest responsible bidder, after a compliance with all the statutory requirements. The state, by its authorized agent, awarded a contract, and the object of the present proceeding is to compel the defendants, as public officers of the state, to sign the formal contract, and thereby perform what is alleged to be their ministerial duty. If the duty to be performed by a public officer of the state is purely ministerial, the writ of mandate may be issued, the case being

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