Peterson v. Lewis

• Decision Date: 28 December 1915
• Citation: 154 P. 101,78 Or. 641
• Parties: PETERSON ET AL. v. LEWIS, STATE ENGINEER.
• Court: Oregon Supreme Court

154 P. 101

78 Or. 641

PETERSON ET AL. v. LEWIS, STATE ENGINEER.

Supreme Court of Oregon

December 28, 1915

On Petition for Rehearing, Jan. 18, 1916

In Banc.

Mandamus by Andrew Peterson and another against John H. Lewis, State Engineer of the State of Oregon. Heard on demurrer to the alternative writ. Demurrer overruled.

This is an original proceeding in mandamus brought by the plaintiffs Peterson and Johnson against John H. Lewis, state engineer to require defendant as such officer to make and deliver to the petitioners and to the county court of Clatsop county Or., a final estimate of the work done by them, and the value thereof, under their contract with the county of December 18 1914, for the construction of a certain county road therein extending from the city of Astoria to the west line of Columbia county. The alternative writ asserts the following facts: The contract provided that the work should be done according to the plans, specifications, and schedule of rates, prices, and maps of the road which were prepared by the state highway engineer, and that all the work thereunder should be done under the supervision of the field engineer selected by the state highway engineer; the work, however, to be approved and accepted by the latter. The contract further provided that payment for the work done by the contractors should be by warrants of Clatsop county issued upon vouchers of the state highway engineer approved by the county court out of any money on hand from the sale of its permanent road bonds, or after January 1, 1915, by warrants drawn on the general fund of that county. Further provision was made for the making of partial payments during the progress of the work upon estimates of the engineer in immediate charge thereof, and the contract contained the following:

"The state highway engineer shall, as soon as practicable after the completion of this contract, make a final estimate of the amount of work done thereunder, and the value of such work and Clatsop county shall, at the expiration of 35 days from and after such estimate is so made, and is approved by the county court of Clatsop county, pay the entire sum so found to be due hereunder after deducting therefrom all previous payments and all amounts to be retained under the provisions of this contract. All prior partial estimates and payments shall be subject to correction in the final estimate and payment."

The road referred to is one which was constructed by the county mentioned with funds derived from the issue and sale of its bonds under chapter 103, General Laws of Oregon for 1913, pursuant to the vote of the taxpayers of the county. The county court requested the assistance of the state highway engineer in the matter of the construction of the road under the terms of chapter 339, General Laws of 1913, p. 663, providing for the appointment and prescribing the duties of the state highway engineer. The contract was executed pursuant to such arrangement. The contractors began the work thereunder soon after its execution, and, except for temporary suspensions, prosecuted the same until September 4, 1914, when it was finished. According to the terms of the contract, the field engineer in charge of the work furnished the contractors with preliminary estimates from time to time during the progress of the work. Based upon these estimates, the contractors were paid installments from time to time; the theory of the contract being that, after the completion of the work, the state highway engineer himself should give to the contractors a final estimate showing the amount of work done and the value thereof, correcting all errors in the preliminary computations in order to determine the balance due the contractors. The state highway engineer performed the duties of the engineer under the terms of the contract, which were requested by the county court, until May 22, 1915. Thereafter they were performed by a chief deputy state engineer until August 27, 1915, when the highway commission passed an order purporting to relieve the defendant of all duties and responsibilities in connection with the highway work of the state of Oregon. Thereupon the appointment of the chief deputy state engineer was revoked by the state engineer.

The petition for the writ alleges that chapter 337 of the General Laws of 1915 imposed upon the state engineer, an elective officer, the duties previously performed under the contract and law by the state highway engineer by virtue of chapter 339, General Laws of 1913, and that the former is the only officer or person authorized by law or the contract to make such final estimate; further, that although more than 80 days have elapsed since the date of the completion of the work, the state engineer has failed and refused to make or deliver to the contractors, or to the county court of Clatsop county, the final estimate made necessary by the contract before the contractors can enforce any claim for final settlement against the county. The defendant demurred to the writ upon the ground that it does not state facts sufficient to constitute a cause of action.

Harrison Allen and Griffith, Leiter & Allen, all of Portland, for plaintiffs. G. W. Allen, of Portland, for defendant. C. L. McNary and John H. McNary, both of Salem, amici curiæ.

BEAN, J. (after stating the facts as above).

It is claimed by defendant that the highway commission by an order relieved the state engineer of all duties and responsibilities in connection with the highway work, and provided that it should be done by I. E. Cantine, chief deputy state engineer. On account of the action taken by the commission, the state engineer endeavors to assume a neutral attitude in the premises. Counsel have appeared as amici curiæ, made oral argument in the interest of the highway commission, and also filed a brief. The interest of the commission should be considered to the same extent as though it were a party to this cause. It is contended by the petitioners that under chapter 339, Laws of 1913, the duties to be performed by the state engineer are separate and distinct from those which that act requires him to perform in connection with the state highway commission; that he is authorized and required by law to act for the various counties of the state in the capacity of an engineer in the matter of road construction; that he, having been substituted for the state highway engineer, is the only officer recognized by the law or the contract to perform these functions. It is suggested on behalf of the defense that the plaintiffs are not entitled to the benefit of the writ for the reason that the duty, if it exists, is a contractual one and not imposed by law.

The writ lies to compel the performance of an act which the law imposes as a duty resulting from an office, trust, or station. Whenever the law gives power to or imposes an obligation on a particular person to do some particular act or duty, and provides no other specific remedy for the performance thereof, the writ will issue. Duties of this kind need not be specifically stated in the law. If they are imposed by implication from a fair, reasonable construction of the law, it is sufficient. It is not necessary that they be imposed by law on the individual in question, provided he has put himself in the position from which by law the duties accrue. Merrill, Mandamus, § 13. By the same authority (section 16), since the object of the writ is to enforce duties created by law, it will not lie to enforce private contracts, unless it is extended to such cases by statutory enactment. Where, however, a contract involves an official duty, the rule is otherwise, since that is one of the grounds for the issuance of the writ.

It is maintained by counsel in behalf of the highway commission that the chief deputy state engineer is an independent officer, upon whom, if any one, the alleged duty rests. These questions require a construction of the statutes of 1913 and 1915. First. What were the duties of the highway engineer in the premises, under the provisions of the act of 1913? As we go along it will be well, in the same connection, to note to some extent the general purpose and scope of the act in order to keep in mind the legislative object and intent. The title indicates that its objects and purposes are: (1) To create a state highway commission, defining the duties thereof, and making provision for the payment of expenses while engaged in the performance of such duties; (2) to create the office of state highway engineer, provide for the appointment of such officer, prescribe his duties, fix his salary, provide for the conduct of subordinates in, and payment of expenses of his office; (3) to prescribe the duties of the county courts and other county officials in relation to the purposes of the act; (4) to provide for the creation of a state highway fund, the levying of a tax to create the same, and the use and disbursements thereof; (5) to provide for the employment of convicts on roads; and (6) to make an appropriation for carrying out the purposes of the act. By this chapter the state highway commission is created, and provision is made for the appointment of a state highway engineer who shall be versed in scientific road construction. Viewing this statute from a general standpoint, it appears that a scheme was inaugurated for the construction of roads by the state and its counties working in unison, in order that state and county roads may eventually connect and form a continuous highway. In order to accomplish this, the act provides that the state highway engineer shall render assistance to the several county courts and highway officers in promoting highways and in the improvement and construction of roads. As a matter of reciprocity, it...