McDowell-Purcell, Inc. v. Bass

• Decision Date: 23 March 1979
• Docket Number: INC,DOWELL-PURCEL
• Citation: 370 So.2d 942
• Parties: Mcv. Ray D. BASS, etc. 77-409.
• Court: Alabama Supreme Court

Page 942

370 So.2d 942

McDOWELL-PURCELL, INC. v. Ray D. BASS, etc.

77-409.

Supreme Court of Alabama.

March 23, 1979.

Rehearing Denied May 11, 1979.

James E. Clark of London, Yancey, Clark & Allen, Birmingham, for appellant.

Edward H. Brogden, Jack F. Norton, Chief Counsel, State of Alabama Highway Department, Montgomery, for appellee.

EMBRY, Justice.

This is an appeal from a judgment which denied the petition of appellant McDowell-Purcell, Inc. seeking a writ of mandamus to compel Ray D. Bass, Alabama Highway Director, to approve and cause payment to appellant of monies according to McDowell-Purcell's interpretation of the terms of a contract between it and the Alabama Highway Department and contrary to Bass' interpretation. Release was sought of certain payments under the contract retained by the Alabama Highway Department for work done about which there was no dispute.

The dispositive issue in this case is whether McDowell-Purcell has a clear right to the writ of mandamus, under the facts of this case to compel action by Bass and remove this action from one categorized as being against the State of Alabama, therefore prohibited by Section 14 of the Alabama Constitution, because Bass, in the exercise of discretionary authority, abused that discretion.

The contract between McDowell-Purcell, Inc., and the State of Alabama was for the construction of a section of Interstate 65 in Jefferson County. In constructing the highway it was necessary to blast cuts through large rock formations consisting of shale and lime. Under the contract McDowell-Purcell was required to shore up the sides of the cuts to prevent rock slides. Because layers of shale rock tend to be loosened by erosion from exposure to the weather the shale formations are covered with a pneumatic concrete blanket which is pressure sprayed concrete; a process called "Guniting." The concrete is applied to a thickness of three inches on steel mesh which is anchored by long metal rods inserted into the shale and secured in place by grout: a thin course mortar.

Unlike shale, lime rock formations are not in layers that are loosened by erosion from exposure to the weather resulting in rock slides. Lime rock has natural seams which when weakened by the blasting necessary to make the roadway cuts create the hazard that in the future large rocks will fall to the roadbed below the cut. To prevent this, pneumatic concrete blankets are not used. Instead, the large rocks, loosened by weakening of their seams, are anchored to the solid rock by inserting and securing in place the long metal rods in the same manner as is the case with shale. These rods are called rock bolts.

The contract required that rock bolts used to anchor lime rocks be of the same type as those used to anchor the steel mesh to shale rock. The price to be paid for installing these rock bolts is the cause of dispute in this case. The contract provided for the payment of four dollars per linear foot for rock bolting. It provided that twenty-five dollars per square yard be paid for pneumatic concrete blanketing. There is no question that for rock bolting the limestone payment was to be at the rate of four dollars per linear foot.

The dispute is whether rock bolting the steel mesh over shale is included in the twenty-five dollars per square yard rate for concrete blanketing or should four dollars per linear foot be paid for that rock bolting in addition to the twenty-five dollars per square yard.

McDowell-Purcell sought payment from the Highway Department of the sum of four dollars per linear foot for all rock bolting. The Department declined to pay and McDowell-Purcell made claim for payment to the Claims Committee of the Department. After an evidentiary hearing the Committee submitted its report to the Highway Department Director: Bass. The report concluded that the contract, plans, and specifications were sufficient to make it clear the cost of the rock bolts used in laying the pneumatic concrete blanket was to be included in the bid price per square yard for blanketing. Bass, although not bound by the Committee's report, combined the contents of the report with his personal knowledge of the circumstances and denied McDowell-Purcell's claim. It then filed its petition for the writ of mandamus to compel Bass to make payment of it at the rate of four dollars per linear foot for All rock bolting as well as to release retainage in the amount of $150,000. After trial without a jury, judgment was entered under which relief was denied and this appeal ensued.

There are certain principles of law applicable to this case. Among those are the following: Suits against the State are prohibited by Section 14 of the Constitution of Alabama of 1901 and those dealing with the State are charged with knowledge of this. Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383 (1937). This immunity from suit does not extend, in all instances, to officers of the State acting in their official capacity. Unzicker v. State, 346 So.2d 931 (Ala.1977). In limited circumstances the writ of mandamus will lie to require action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act. See Hardin v....