Dunn Const. Co., Inc. v. State Board of Adjustment

• Court: Alabama Supreme Court
• Writing for the Court: BOULDIN, Justice.
• Citation: Dunn Const. Co., Inc. v. State Board of Adjustment, 175 So. 383, 234 Ala. 372 (Ala. 1937)
• Decision Date: 17 June 1937
• Docket Number: 3 Div. 216
• Parties: DUNN CONST. CO., Inc., v. STATE BOARD OF ADJUSTMENT et al.

175 So. 383

234 Ala. 372

DUNN CONST. CO., Inc., v. STATE BOARD OF ADJUSTMENT et al.

3 Div. 216

Supreme Court of Alabama

June 17, 1937

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Proceeding by the Dunn Construction Company, Inc., for mandamus to the State Board of Adjustment, in which the state of Alabama intervened. From a judgment denying the petition, petitioner appeals.

Affirmed.

Wilkinson & Wilkinson and Frank A. Wilkinson, Jr., all of Birmingham for appellant.

A.A Carmichael, Atty. Gen., Silas C. Garrett, III, Asst. Atty. Gen., and Files Crenshaw, Jr., of Montgomery, Sp. Atty., for Board of Adjustment.

BOULDIN Justice.

Appellant, Dunn Construction Company, Inc., instituted proceeding in the Montgomery circuit court for mandamus directed to the State Board of Adjustment, created by Act of September 14, 1935, Gen.Acts 1935, p. 1164.

From a judgment denying the petition, this appeal is prosecuted.

The case made by the record is this:

Appellant in 1934 entered into a contract with the State Highway Commission for the construction of a state highway project in Sumter county.

After full performance on the part of the contractor, a claim was presented to the State Highway Commission for alleged "injuries and damages in the sum of $23,288.47 because of a failure of the State Highway commission to provide proper engineering services and on account of the delay in securing some section of the right-of-way for the project that had not been obtained prior to the execution of the contract for the work."

Thereafter the engineering officers and maintenance commissioner of the highway department recommended to the State Highway Commission that "Since the claim is for breach of contract by the Highway Commission itself, the Contractor should present it to the State Board of Adjustment."

Thereupon in April, 1936, the claim was presented to the State Board of Adjustment.

Thereafter, September, 1936, the State Highway Commission, through the Attorney General of Alabama, filed a motion with the State Board of Adjustment to dismiss the claim on the ground, among others, that said board was without jurisdiction and authority to hear and determine the claim. On the hearing of this motion, September 25, 1936, the motion was granted. The order recited: "On consideration of the same the State Board of Adjustment is of the opinion that it has no jurisdiction to hear or determine the claim of Dunn Construction company as made by its petition in this cause filed or to adjudicate the matters in controversy."

Thereafter, October 31, 1936, the petition in this cause was filed praying for mandamus requiring the State Board of Adjustment to hear and determine the claim on its merits.

The state intervened by the Attorney General, and demurrers were filed on behalf of the state and the State Board of Adjustment. On the hearing of the demurrers, February 9, 1937, they were sustained by the trial court, and, petitioner declining to amend, the petition was dismissed.

By an act passed at an extra session, March 1, 1937 (Gen.Acts 1936-37, Ex.Sess., p. 205), after the appeal was taken in the cause, section 2 of the original Board of Adjustment Statute was amended, by inserting: "The Board shall have no jurisdiction over claims growing out of forfeitures or of contracts with any state agency, commission, board, institution or department where by law or contract said state agency, commission, board, institution or department is made the final arbiter of any disagreement growing out of forfeitures or of contracts of said state agency, commission, board, institution or department, and, particularly, the Board shall have no jurisdiction of disagreement arising out of contracts entered into by the State Highway Department."

By another provision in the amended section the above limitations are made to apply to claims filed with the Board of Adjustment prior to this amending act.

Obviously, and it seems unquestioned, if these provisions of the amending statute are valid, the State Board of Adjustment now has no jurisdiction of this claim, and the case becomes moot.

As applied to this case, the amending act is challenged on the ground that it violates section 45 of the Constitution.

The act is amendatory in form, and fully conforms to section 45 in re-enacting and publishing at length section 2 of the original act as amended.

This section in the original act fully defined the several classes of claims to come before the State Board of Adjustment for hearing, including: "All claims against the State of Alabama arising out of any contract, express or implied, to which the State or any of its agencies, commissions, boards or institutions are parties, where there is claimed a legal or moral obligation resting on the State to make payment."

Any amendment withdrawing or extending the jurisdiction to hear and determine any class of claims was, therefore, clearly germane.

A title disclosing a purpose to amend a named section of an act whose title is given in full, with date of approval, suggests to the legislator at once proposed amendments relating to the subject matter of that section.

This general principle is not challenged, but it is argued that the provision withdrawing jurisdiction over pending claims is retroactive in character, and such a departure from the usual course of legislation that this purpose must appear in the title of the act.

The cases of Lindsay v. United States Savings & Loan Association, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783, and Wallace v. Ball, 205 Ala. 623, 88 So. 442, are relied upon by appellant.

In answer to this contention it is aptly suggested that the original section was retroactive in character. It expressly looked to the adjustment of claims against the state of wide variety, not theretofore provided for in any way. It fixed no limitation of time for presenting claims, whether accruing before or after the creation of the State Board of Adjustment. State Board of Adjustment v. State, 231 Ala. 520, 165 So. 761. To cure this omission was one of the aims of the amending act.

But the broader principle, differentiating this statute from those treated in cases relied upon by appellant, is that the provision withdrawing this class of claims from the jurisdiction of the board is not retroactive. It deals with the jurisdiction of a state agency to further function. Without question this board, a creature of the Legislature, could be abolished at any time. In that case all pending claims would die with it in so far as their recognition and adjustment depended on the existence of such board.

A striking down of its jurisdiction in part, a withdrawal of the power to further function in a given zone, must needs have the like effect. A statute purporting to become operative on its passage, and which curtails the jurisdiction of the State Board of Adjustment, expressly excluding specified claims therefrom, operates prospectively on all claims of that class,...