State Highway Com'n v. Green-Boots Const. Co.

• Decision Date: 08 July 1947
• Docket Number: 29958.
• Citation: 187 P.2d 209,199 Okla. 477,1947 OK 221
• Parties: STATE HIGHWAY COMMISSION et al. v. GREEN-BOOTS CONST. CO.
• Court: Oklahoma Supreme Court

187 P.2d 209

199 Okla. 477, 1947 OK 221

STATE HIGHWAY COMMISSION et al. v. GREEN-BOOTS CONST. CO.

No. 29958.

Supreme Court of Oklahoma

July 8, 1947

Rehearing Denied Dec. 2, 1947.

Appeal from District Court, Oklahoma County; Ben Arnold, Judge.

Action as in mandamus by Green-Boots Construction Company against the State Highway Commission of the State of Oklahoma and others, to enforce a claim against State Highway Construction and Maintenance Fund. From a judgment commanding the allowance and a payment of a portion of the claim, the defendants appeal.

Reversed and case dismissed.

BAYLESS and WELCH, JJ., dissenting.

Syllabus by the Court

1. No duty being enjoined by law upon the Highway Commission and Attorney General to arbitrate disputes arising from highway construction contracts, mandamus will not lie to compel them to so act, nor will mandamus lie to review or correct their action and conduct in failing to agree and make an award.

2. The State Highway Commission is required by sec. 19, Chap. 48 S.L.1923-1924, to audit all claims against the State Highway Construction and Maintenance Fund, and could not be relieved of that duty by agreeing to submit all disputes to arbitration.

3. Mandamus will not lie to control a decision of an officer vested with discretion, or to review, correct, or reverse an erroneous decision of such officer, even though there may be no other method of review or correction provided by law except where such officer is guilty of a gross abuse of discretion or has acted wholly through fraud, caprice, or by purely arbitrary decision and without reason.

4. When a claim against the State Highway Construction and Maintenance Fund is disputed by the Highway Commission and a full hearing is accorded by the Commission upon the audit of such claim, and there exists a clear dispute and conflict in the evidence relating to the facts and conditions upon which the Commission exercised its discretion in disallowing such claim, the decision of the Commission cannot be said to be fraudulent, arbitrary, and without reason.

5. A claim against the State Highway Construction and Maintenance Fund for increased costs and extra work of the character specified by the contract provisions governing 'Alteration of Plans or of Character of Work' or 'Extra Work' must be rejected and disallowed by the Highway Commission in auditing such claim, in the absence of a prior written agreement by the Highway Commission as required by the contract.

6. The provisions of a state highway construction contract requiring prior written agreements by the Highway Commission for the payment of increased costs and extra work of a character specified by the contract provisions governing 'Alteration of Plans or of Character of Work' or 'Extra Work' could not be waived by the State Engineer in charge of the construction project.

7. Where contract for the construction of state highway project is in the form commonly known as 'railroad construction contract,' and contractor was paid for all units of construction at contract price, and no work and materials were furnished in compliance with contract provisions governing 'Force Account Work,' 'Alteration of Plans or of Character of Work,' or 'Extra Work,' and contractor filed claim for loss in sum of $155,576.44 which was disputed by Highway Commission, and Highway Commission, after granting full hearing and audit as commanded in mandamus, disallowed such claim, and trial court upon hearing and review of Commission's audit and decision, rendered judgment as in mandamus commanding allowance of claim by Highway Commission in sum of $90,000.00 with interest, held, said judgment is in reality for recovery of damages in action brought without consent of State and wherein the State, although not a party to the record, is the real party against which relief was granted, in violation of the State's immunity from suit.

Mac Q. Williamson, Atty. Gen., By Houston W. Reeves, Asst. Atty. Gen., and P. C. Lackey, Asst. Atty. Gen., for plaintiffs in error.

Rittenhouse, Webster, Hanson & Rittenhouse, John Barry and Tom C. Chambers, all of Oklahoma City, for defendant in error.

JOHNSON Special Justice.

This case sequels the persistent efforts of the Green-Boots Construction Company and its predecessor, extending over a period of more than twenty years, to enforce a claim for payment of $155,576.44 covering alleged items of loss incurred in the construction of approximately fifteen miles of Bates type reinforced concrete pavement between Dewey, Oklahoma, and the Kansas line in Washington County, Oklahoma. The construction work was performed in two sections, known as Oklahoma Federal Aid Projects Nos. 106-A and 107-A, respectively. Each project was covered by a separate contract entered into on October 11th, 1923, between the claimant and the State of Oklahoma acting through Paul Nesbitt, Commissioner of Highways. The contracts estimate the total cost of the construction as $201,766.89 on project No. 106-A, and $231,828.48 on project No. 107-A. The final estimates on said projects show that the claimant has heretofore received payment for all units of construction specified in the contracts, calculated according to the unit prices set forth in the contracts. Said payments aggregate a total of $209,271.16 on project No. 106-A, and $223,926.55 on project No. 107-A.

Two phases in the litigious voyage of this claim are revealed in Green-Boots Const. Co. v. State Highway Comm. et al., 1929, 139 Okl. 108, 281 P. 220; and Green-Boots Const. Co. v. State Highway Comm. et al., 1933, 165 Okl. 288, 25 P.2d 783.

In the first case, supra, this Court denied a writ of certiorari to review the action of the contractual board of arbitration in sustaining a demurrer to the claim.

In the second case, supra, this Court found that the Highway Commission had failed to act by auditing the claim as the law provides, and remanded the cause to the trial court with directions for the issuance of a peremptory writ of mandamus to the Highway Commission commanding a full audit of the claim, and, if demanded by the claimant, that all disputed matters be fairly submitted to arbitration as provided by the contracts. Thereafter and on November 22, 1933, the trial court, having considered the mandate from this Court, issued a peremptory writ of mandamus, directed to the State Highway Commission and J. Berry King, Attorney General, which was returned and filed in the trial court on May 29, 1934. The return of said writ recites: 'That pursuant to said writ the State Highway Commission audited plaintiff's claim referred to in said Writ, heard and considered evidence in support of and against said claim, examined all the records and files of the Department relative to said claim, and according to said audit, denied said claim. * * *'

The order of the board of arbiters was filed in the trial court on January 14, 1935. It appears from said order that the claimant demanded arbitration of its said claim and it was agreed by the arbiters, without objection from anyone, that the transcript of the testimony before the Highway Commission, together with the audit of the claim by said Commission, and all exhibits and records referred to in said testimony should be admitted in evidence before the board of arbiters and considered by said board in arriving at its decision, and that the claimant was granted an opportunity to submit additional evidence.

H. N. Arnold, L. V. Orton, L. B. Selman, members, and Ed McDonald, member-secretary, of the State Highway Commission in the order of the board of arbiters separately found that the claimant had introduced no additional evidence in support of its claim, ordered the adoption of the audit of the State Highway Commission, and denied the claim in its entirety.

The separate findings of the Attorney General in the order of the board of arbiters show that the Attorney General was unable to concur in the order of the State Highway Commission. He found that the claimant was delayed, interrupted, and interfered with in the failure of the Highway Commission to obtain right-of-way and to do other things consistent with the terms of the construction contracts to such an extent that some loss was sustained. He further found that there was no reason for him to approximate the amount of the loss, since the State Highway Commission had taken the positive position that the construction company was entitled to nothing.

On the 8th day of October, 1936, the claimant filed in said mandamus case in the trial court a pleading denominated 'Application to Have Cause Set Down for Trial.' In said application the claimant contended that the members of the State Highway Commission had gone through the formality of allowing the claimant a hearing upon the audit of its claim, and had acted arbitrarily and capriciously, and that the cause should be set down for final hearing upon the merits.

Over the objection of the Highway Commission, its members, and the Attorney General, the trial court proceeded to hear and determine said claim, and on January 13, 1940, filed its opinion. In said opinion the trial court found that the defendants in the matter of the attempted audit and allowance of the claim and of the attempted arbitration in connection therewith, had acted arbitrarily and capriciously and ordered the issuance of a peremptory writ of mandamus to the State Highway Commission and the individual members thereof. On the same day the trial court entered its judgment in the form of a peremptory writ of mandamus, wherein the court found in part as follows: 'That the State Highway Commission acted arbitrarily and capriciously in refusing to audit and allow the claim * * *' and 'That the State Highway Commission,...