State Board of Administration v. Roquemore

• Decision Date: 28 June 1928
• Docket Number: 3 Div. 851
• Citation: 218 Ala. 120,117 So. 757
• Parties: STATE BOARD OF ADMINISTRATION et al. v. ROQUEMORE.
• Court: Alabama Supreme Court

117 So. 757

218 Ala. 120

STATE BOARD OF ADMINISTRATION et al. v. ROQUEMORE.

3 Div. 851

Supreme Court of Alabama

June 28, 1928

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Petition by C.H. Roquemore for mandamus to the State Board of Administration and C.A. Moffett, as its president, and the State Highway Commission, and Woolsey Finnell, as its president. From a judgment awarding the writ, respondents appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Finding that hay delivered to highway department was accepted by its agent held supported by evidence.

Statement by Somerville, J.:

The petition is for a writ of mandamus to C.A. Moffett, as president of the state board of administration, and to Woolsey Finnell, as president of the state highway commission, to audit and voucher for payment the petitioner's account for hay sold and delivered to the state highway department.

It is alleged that on June 23, 1927, and before and since that time, the highway department was engaged in constructing a public highway in Montgomery county, known as the Norman Bridge road, and had a camp thereon known as camp E, about 6 miles from Montgomery, where were used a large number of mules; that on or about June 23, 1927, petitioner received a written purchase order from the state board of administration for the purchase of 6 tons of hay, at $12 per ton, to be delivered at said camp E, which order was accepted by petitioner; that on July 1 petitioner delivered 5,275 pounds of United States No. 2 Johnson grass hay to the highway department at said camp E, duly inspected and classed by a federal and state hay inspector, and that he had previously under said order, delivered 1,860 pounds of hay; that on the last delivery the highway department's clerk and agent informed petitioner that they would not accept any more of this grade of hay, and therefore he has not tendered any more hay under said order; that the amount of hay delivered was 7,135 pounds, or 3.567 tons, and the price due was $42.80 that on August 17, 1927, he presented his "bill" therefor to the highway department, which, through the highway commission, refused to audit said bill, or to approve or receive it; and that, unless it is approved, audited, and vouchered by the board of administration and the highway commission, as they are in duty bound to do, petitioner cannot procure the payment of what is due.

Respondents demurred to the petition on grounds, in substance, as follows: (1) That it is in effect a suit against the state (2) and (3) that it seeks to enforce against state department heads a claim for unliquidated damages for breach of contract; (4) and (5) it fails to show a clear legal right to the relief prayed, or an imperative duty upon respondents; (6) that it shows that the hay in question had been previously tendered to and refused by the state; (7) that it seeks to control a discretion in defendants of accepting or rejecting the hay offered by petitioner; and (8) that petitioner's claim arises from an alleged breach of contract.

The demurrer was sustained as to an item of $10 claimed as damages for loss in hauling two loads of hay to camp E on June 28, 1927, which hay was not received by the agent in charge. In other respects the demurrer was overruled.

Respondents filed a plea of the general issue, upon which the case was tried.

On the evidence adduced, the trial court granted the relief prayed, and directed the issue of a peremptory writ of mandamus to each of the respondents.

Petitioner's evidence tended to show that the hay in question was good, sound No. 2 Johnson grass hay, not mildewed, and that it conformed to the contract (shown in evidence), which called for that classification. Respondents' evidence--the testimony of Frazier, the clerk at the camp, and of Johnson, their stock man--tended to show that the hay was not sound and of good quality, but was rotten or mildewed.

As to acceptance and delivery of the hay, petitioner testified: That Frazier declined to pass on it, and called in Johnson. That Johnson looked at it on the wagon without opening any bundles, and shook his head, and said he would not accept it. That Frazier directed him to drive over to the feed tent with it, and Johnson helped to stack it when unloaded. "I put it in the feed tent at his (Johnson's) instructions and request. He said, if I was going to deliver it, to put it in the feed tent where they could use it. *** We had quite a discussion about the hay. I insisted on a delivery. I insisted on unloading it. He finally consented that I might unload it, and he told me to unload it--to put it in the feed tent." Johnson testified that he rejected the hay, and told petitioner that he could not use it.

There was no evidence as to what was done with the hay after its deposit in the feed tent, nor anything to show that the highway department did or did not make use of it for feed.

The respondents appeal.

Charlie C. McCall, Atty. Gen., for appellants.

E.T. Graham, of Montgomery, for appellee.

SOMERVILLE J.

Section 1335 of the Code provides:

"The state highway department is authorized to rent, construct or purchase such buildings, stock, machinery, tools, materials and other equipment as it may find necessary for use in carrying out the provisions of this article and pay for the same out of the state highway fund. It shall also pay out of said fund the necessary expenses of the department of every description, *** and also the cost of all supplies or materials furnished for said department, and for the maintenance of all live stock and machinery used by the department or its agents."

This section was re-enacted, without change, as section 35 of the Highway Act of August 23, 1927. Acts 1927, pp. 359, 360.

On the other hand, section 14 of the Act of February 10, 1923, creating the state board of convict supervisors, provides:

"That the board of convict supervisors shall purchase all supplies for all departments and activities of the State, except educational, charitable and eleemosynary institutions, *** under rules and regulations which the board may adopt, with the approval of the Governor," etc. Acts 1923, p. 71.

Under these statutes it is clear that although, as happened in this case, the highway department may upon occasion use the facilities and services of the board of convict supervisors for the purchase of needed supplies, it has the authority to buy on its own account, through its own proper officers or agents; and, when the highway department has bought supplies or materials, including hay for the maintenance of its live stock it is not merely authorized, but is required, to pay for them out of the highway fund.

This mandate for the payment of claims for supplies thus furnished is of course intended for the protection of those who deal with the department, and who, without that protection, would be without remedy, since they cannot sue the state, and could not coerce officials.

This proceeding for mandamus is in no sense a suit against the state. The petition shows an executed contract of purchase and sale, for a definite price, and therefore a clear legal duty on the part of the highway department, through its executive head, presumptively, to audit and approve petitioner's claim, in order that it may be paid out of the appropriate fund on warrant drawn by the state auditor in accordance with the usual practice.

It is of course true that discretionary action or choice of action on the part of public officials cannot ordinarily be coerced by mandamus. Citizens' Bank, etc., v Commissioners' Court, 209 Ala. 646, 96 So. 778; State ex rel. Ducourneau v. Langan, 149 Ala. 647, 43 So. 187; Ex parte Thompson, 52 Ala. 98, 100. But, in cases like this, the board's discretion is exhausted when it gives an order for materials and accepts delivery of them in due season; or, if there is receipt without express acceptance, when the materials are accepted by their actual use. Of...