Griffis v. State
| Decision Date | 04 March 1942 |
| Docket Number | 8401 |
| Citation | 2 N.W.2d 666,68 S.D. 360 |
| Parties | WILLIAM C. GRIFFIS, Sr., and WILLIAM C. GRIFFIS, Jr., dba William C. Griffis & Son, Plaintiffs, v. STATE OF SOUTH DAKOTA, Defendant |
| Court | South Dakota Supreme Court |
Wilson & Blethen, Mankato, Minn.,
Lewis W. Bicknell, Webster, SD
Attorneys for Plaintiffs.
Leo A. Temmey, Atty. Gen.,
Ray F. Drewry, Asst. Atty. Gen., Pierre, SD
Attorneys for Defendant.
Opinion filed March 4, 1942
Plaintiffs upon the refusal of the State Auditor to allow a claim presented by them instituted this action against the state, pursuant to the provisions of SDC 33.0604. The claim referred to included the following items:
“(1) Increased labor costs by reason of breach of contract of state highway commission of South Dakota in forcing riprapping job to go on during winter months, $7885.22
” (2) Increased trucking expense through breach of contract on part of state highway commission of South Dakota in forcing riprapping job to go on during winter months, 4551.24
” (3) Increased labor expense caused by state highway commission of South Dakota forcing stone to be used on this riprapping project of much larger size than specified in the contract and specifications, 3300.00
“(4) Increased labor costs occasioned by state highway commission of South Dakota forcing riprap to be laid on frozen ground in the wintertime which became out of place in the spring thaws and had to be relaid, 3100.00
” (5) Penalties wrongfully charged for over time, 810.00
” (6) Riprap work done but not paid for, 303.60
” (7) Profit which would have been earned on the job had the state highway commission of South Dakota not forced the job to go on through the winter, and had not demanded stone of larger size than specified, and had not wrongfully charged overtime, 2729.80”
The complaint alleges that on August 29, 1937, plaintiffs entered into a contract with the State of South Dakota to lay riprap along a highway in Day County, this state; that plaintiffs were to complete performance of the contract within ninety days after receiving instructions from the state to begin work; that plaintiffs were readyto commence work on the project on September 1, 1937, but through the negligence and willful disregard of their rights it was not possible to begin work until October 4; that it was through the mistake of the state that plaintiffs and a grading contractor were on the same section of the road at the same time, preventing plaintiffs from efficiently doing their work; that from November 13, 1937, when a severe blizzard occurred, until spring the weather was abnormally severe, making it impossible for plaintiffs to do their work as efficiently and economically as they would have been able to do if they had been permitted to proceed with the work when they were ready to begin on September 1; that the custom and usage in highway construction work is that work may be suspended during the winter unless otherwise provided in the eontract, and recognizing such custom and usage a resident engineer assured plaintiffs before entering into the contract that they would not be compelled to work during winter weather; that plaintiffs sought through highway engineers suspension of the work until spring and demanded of the highway commission a contract baed upon additional costs to be incurred in carrying on the work in the winter months; that these efforts on the part of the plaintiffs were ignored by defendant; and that the arbitrary and unreasonable action of the defendant caused plaintiffs monetary damage and loss. The complaint contains separate allegations with respect to the several items to which reference has been made. Plaintiffs have withdrawn claim for profits set forth in item 7.
The Attorney General has filed a motion to dismiss the complaint, asserting that this court is without jurisdiction to render judgment for damages resulting from breach of contract and that the complaint does not state facts sufficient to constitute a cause of action.
An action against the state cannot be maintained in the absence of constitutional or statutory authority. Mullen & Rouke v. Dwight et al., 42 SD 171, 173 NW 645; Sigwald v. State, 50 S.D. 37, 208 NW 162; Wisconsin Granite Co. v. State, 54 SD 482, 223 NW 600. The immunity results, as stated by Mr. Justice Holmes in Kawananakoa v. Polyblank, 205 U. S. 349, 27 SCt 526, 527, 51 LEd 834, “not because of any formal conception of obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” The Constitution, Art. III, Sec. 27, directing the Legislature to designate “in what manner and in what courts suits may be brought against the state,” vests authority to impose such conditions and limitations as public policy may seem to require. Barnsdall Refining Corporation et al. v. Welsh, 64 SD 647, 269 NW 853; Goodhope v. State et...
To continue reading
Request your trial