Brasel & Sims Const. Co., Inc. v. State Highway Com'n of Wyoming
Decision Date | 14 December 1982 |
Docket Number | No. 5678,5678 |
Citation | 655 P.2d 265 |
Parties | BRASEL & SIMS CONSTRUCTION CO., INC., Appellant (Plaintiff), v. STATE HIGHWAY COMMISSION OF WYOMING, Appellee (Defendant). |
Court | Wyoming Supreme Court |
John T. Pappas, Lander, for appellant.
A. Joseph Williams, Asst. Atty. Gen. (argued), and Glenn Williams, Sr. Asst. Atty. Gen., for appellee.
Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
The jurisdiction of the district court to entertain a petition for review under the provisions of the Wyoming Administrative Procedure Act, § 9-4-101, et seq., W.S.1977, from the findings of fact, conclusions of law and final order made following a claim procedure provided for by a highway construction contract between Brasel and Sims Construction Company (appellant) and the State Highway Commission of Wyoming (appellee) is the issue upon which this court will make disposition. The district court affirmed the appellee's denial of appellant's claim.
This is not the issue presented by either of the parties in their briefs or during oral argument on the appeal to this court, but originated during the course of the court's conference following oral argument. We became concerned about jurisdiction and therefore requested supplemental briefs on the following question:
"Does the Wyoming Administrative Procedure Act, § 9-4-101, W.S.1977, et seq., confer upon the district courts of this state jurisdiction to review the denial of a claim made upon a contract with the Wyoming State Highway Department which has been presented and denied in accordance with the rules and regulations of the Wyoming State Highway Department, and, if so, what is the impact upon such review jurisdiction of the right of the claimant to bring suit against the Wyoming State Highway Department based upon the claim?"
We will dismiss the appeal for the ultimate reason that the district court had no jurisdiction to entertain a petition for review, and, therefore, neither do we. Pritchard v. State, Division of Vocational In September, 1978, the appellee called for bids to do construction work on a two-lane highway between Midwest and Reno Junction. Appellant's low bid of $4,011,221.70 was accepted by appellee and a contract dated October 19, 1978, was entered into. Part VII of the contract provided:
Rehabilitation, Department of Health and Social Services, Wyo., 540 P.2d 523 (1975); Snell v. Ruppert, Wyo., 541 P.2d 1042 (1975).
Wyoming Highway Department Specifications for Road and Bridge Construction, 1974, were, by reference, made a part of the contract. Section 105.17 of those specifications set out a claim procedure:
Pursuant to the above provision, appellant filed a claim in the amount of $2,323,635.00 for additional compensation, allegedly not clearly covered by the 1978 contract. The claim was denied by the State Highway Department whereupon an appeal was taken to appellee. An extensive hearing was held before the appellee in accordance with the rules of practice adopted by the appellee for hearings "as authorized and required by Chapter 108, Session Laws of Wyoming, 1965 [Wyoming Administrative Procedure Act, § 9-4-101, et seq., W.S.1977]."
The dispute involved water, excavation, gravel pits, fencing, revegetation, removal and stockpiling of old road surface, guardrail and cost calculations. After the hearing, comprehensive findings of fact, conclusions of law and an order, dated September 18, 1981, were adopted by the chairman of the appellee deciding that the appellant "recover none of the additional compensation sought * * *." The claim was denied by appellee primarily because of failure of proof and was held to be an effort to convert a fixed-price contract, given to the lowest bidder, into a cost-plus contract.
The appellant thereupon filed a petition for review in the district court, Fremont County, Ninth Judicial District. Following submission of briefs to the district judge, the September 18, 1981 order of the appellee was affirmed. This appeal on the merits "Except as provided by W.S. 1-39-101 through 1-39-119, persons having claims against the state shall exhibit the claim, with the evidence in support thereof, to the auditor, to be audited, settled and allowed, within one (1) year after the claim accrues and not afterward."
followed. During the course of oral argument, it was revealed that a separate action had been filed by appellant in the District Court for Laramie County, First Judicial District, apparently seeking a recovery for monies claimed and arising out of the same contract now here as the subject of an administrative review. In the supplemental brief of appellant it is also disclosed that a claim had been filed with and rejected by the state auditor prior to commencement of the action in accordance with § 9-2-332, W.S.1977, Cum.Supp.1982:
The scope of the jurisdiction of the Wyoming State Highway Commission with respect to road construction is circumscribed by § 24-2-108, W.S.1977, in pertinent part:
.
Litigation is authorized by § 24-2-101(e), W.S.1977, Cum.Supp.1982:
" * * * The commission is empowered to sue in the name of the 'State Highway Commission of Wyoming,' and may be sued by that name in the courts of this state and in no other jurisdiction upon any contract executed by it. * * * " (Emphasis added.)
The general rule is that only those powers expressly conferred by the legislature are granted to an administrative agency. McNeill v. Park County School Dist. No. 1, Wyo., 635 P.2d 818 (1981); Tri-County Electric Ass'n, Inc. v. City of Gillette, Wyo., 525 P.2d 3 (1974); Bruegman v. Johnson Ranches, Inc., Wyo., 520 P.2d 489 (1974). While these cases did not involve contracts with the administrative agency before whom the administrative hearing was held, they clearly held that, in the absence of statutory authority, administrative agencies may not decide contract disputes between the parties to the contract. If an agency cannot decide contract questions from a posture of disinterested decision making, then it would seem imperative that the agency not decide contract questions in which it is a party to the contract in question.
To allow such a quasi-judicial function to exist robs the system of at least the very important appearance of having an impartial tribunal, fair and unbiased as it may try to be. Even under the most sterile of circumstances, there is an underlying innuendo of bias. This court has been able in most cases to justify the workability of the combination of investigatory and adjudicative functions in administrative matters. This was commented on in First National Bank of Thermopolis v. Bonham, Wyo., 559 P.2d 42 (1977), where it was said that before we set aside an administrative decision on the ground of interest, the combination of investigative and adjudicative functions must create a risk of bias in administrative adjudication which overcomes a presumption of honesty and integrity in those serving as adjudicators. The system came...
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