Peerless Const. Co. v. Bass

• Decision Date: 18 March 1929
• Citation: 14 S.W.2d 732,158 Tenn. 518
• Parties: PEERLESS CONST. CO. v. BASS, Commissioner.
• Court: Tennessee Supreme Court

14 S.W.2d 732

158 Tenn. 518

PEERLESS CONST. CO. v. BASS, Commissioner.

Supreme Court of Tennessee.

March 18, 1929

Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.

Suit by the Peerless Construction Company against C. N. Bass, State Highway Commissioner. From an adverse decree, complainant appeals. Affirmed.

Manier & Crouch, of Nashville, for appellant.

L. D Smith and Roy H. Beeler, both of Nashville, and T. P Henderson, of Franklin, for appellee.

CHAMBLISS J.

The construction company brings this suit to enforce by mandamus the payment to it, by the state highway commissioner, of an unliquidated claim for compensation for work alleged to have been performed in highway construction in connection with but in addition to, a certain contract with the commissioner, acting for the state. The chancellor sustained a demurrer raising, in substance, the twofold defense: First, that the suit was, in effect, against the state; and, second, that no case for mandamus was presented.

Appealing, and apparently conceding the general rule that the state may not be sued (article 1, § 17 of the Constitution and section 4507 of Shannon's Code), it is insisted for the construction company that: "Instead of being a suit against the state the bill clearly shows that it is really a bill to compel a state officer to do what the law says he should do upon the facts alleged." And, going more directly to the prayer for a writ of mandamus, that: "The bill seeks to have the Commissioner perform a ministerial act. The law imposes upon him the duty of paying just claims against his Department. He has no discretion to refuse to do so."

It will be observed that the quoted statement of appellant's position assumes that the act sought to be enforced by mandamus is "a ministerial act," and so, clearly, it must be to warrant the invoking of the writ. Our latest case so holding, reviewing authorities, is State ex rel. v. Martin, 155 Tenn. 322, 292 S.W. 451. Is the act in issue here of the ministerial class? This is the determinative question.

The distinction pertinent here is thus well stated in Ferris on Extraordinary Legal Remedies, § 194: "The office of mandamus is to execute, not adjudicate. It does not ascertain or adjust mutual claims or rights between the parties. If the right be doubtful, it must be first established in some other form of action; mandamus will not lie to establish as well as enforce a claim of uncertain merit. It follows therefore that mandamus will not be granted where the right is doubtful."

Looking further to the above quotation from the statement of appellant's position, it will be seen that it concludes in this language: "The law imposes upon him the duty of paying just claims against his department. He has no discretion to refuse to do so." This language requires qualification to bring it within the rule, thus: "The law imposes upon him the duty of paying just claims against his department" when and when only the justness of the claim is recognized by him in the exercise of the discretion vested in him by law, or when the justness thereof has been established by competent authority, so that it is the ministerial act of disbursement only which remains to be performed, and not the exercise of discretion as to the existence of, or extent of, a valid obligation based on disputed facts.

Just here is the difficulty confronting appellant. As already briefly outlined, it is a road-building company and entered into a contract in writing to build a portion of a state highway. It has been paid the price stipulated, but says that it did extra and additional work found to be necessary in the program of the contract work; that it was misled or misinformed as to the extent and character of certain basic conditions, not deemed necessary to detail, and was forced to incur heavy extra and unforeseen expense, and that it is justly entitled to additional compensation therefor from the state through its highway commissioner. By a process of computation it fixes its excess claim at $12,328.50. However, the bill shows that the highway commissioner, quite plainly vested under the law with quasi judicial discretion, disputes and rejects the correctness of this claim and has refused payment. Quite obviously we have then an unliquidated account, disputed and disallowed by the authority vested with discretionary powers, investigation and determination of which must be first disposed of on the facts before the right may have applied to it the remedy invoked.

Mandamus is a summary remedy, extraordinary in its nature, and to be applied only when a right has been clearly established, so that there remains only a positive ministerial duty to be performed, and it will not lie when the necessity or propriety of acting is a matter of discretion. This is axiomatic and requires no citation of authority.

As we read the brief of counsel, it is sought particularly to bring this case within the opinion of this court in Deitler v Kincannon, 151 Tenn. 652, 270 S.W. 984, with reliance, also, on State v. Gaines, 4 Lea (72 Tenn.) 352, and Morley v. Power, 5 Lea (73 Tenn.) 699. The two last cases cited do not appear to us to be in point. The Gaines Case presented a question only of legal construction of a section of a legislative act fixing a clerk's fees. No question of fact was involved. If the act gave the fees to the clerk, it was the clear ministerial duty of the comptroller to issue his warrant therefor, and so...