State Highway Dept. v. Dawson

• Decision Date: 17 November 1952
• Docket Number: No. 16617,16617
• Citation: 126 Colo. 490,253 P.2d 593
• Parties: STATE HIGHWAY DEPARTMENT et al. v. DAWSON et al.
• Court: Colorado Supreme Court

Page 593

253 P.2d 593

126 Colo. 490

STATE HIGHWAY DEPARTMENT et al. v. DAWSON et al.

No. 16617.

Supreme Court of Colorado, en Banc.

Nov. 17, 1952.

Rehearing Denied Jan. 5, 1953.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and Edward L. Higbee, Asst. Atty. Gen., for plaintiff in error.

Darrow, Mincer & Petre, Glenwood Springs, for defendants in error.

HOLLAND, Justice.

Defendants in error, as plaintiffs, filed this action on March 26, 1949, against defendant to recover for the agreed price for gravel taken from the lands of plaintiffs under an 'option to buy material' dated August 8, 1947. The gravel in question was taken and used by defendant on the Blue Mountain cut off highway project in Rio Blanco county; it undisputably appears from the record that this particular highway project was set up prior to July 1, 1947; an allotment of appropriated funds therefor was approved prior to that date; and said funds for this project were 'ear marked' for this particular project. Defendant moved to dismiss on the general ground that the action was not maintainable because it is against a department of the sovereign state, and is, therefore, immune. This motion was overruled and answer filed. After various motions concerning the different causes of action and defenses were filed, a pretrial conference was had and certain admissions were made and stipulations entered which virtually removed all factual questions from dispute. Counsel for defendant announced that they elected to stand upon their motion as made and would not contest the factual issues to be presented at the trial. The ex parte trial or hearing was had, resulting in a finding by the court that defendant had removed 49,867.1 tons of gravel at the agreed price to be paid of 12 cents per ton; further that the price of 12 cents per ton was a fair and reasonable price; that defendant is indebted to plaintiffs in the sum of $5,984.05, together with interest at six per cent per annum from the first day of September, 1947, in the sum of $1,112, together with costs expended; and judgment was entered on the findings.

Error is specified in four specifications of points which are, in substance, that the lower court erred in overruling the motions to dismiss on the ground that defendant is immune from said suit because the suit is an action against the state in its sovereign capacity; that so far as recovery was to be based upon a contract, the complaint fails to show compliance with chapter 3, '35 C.S.A., known as the Administrative Code of the State of Colorado; that the contract was not executed in accordance with said administrative code; and finally, that the court erred in granting judgment in favor of plaintiffs for interest and costs.

As we said in the case of Boxberger v. State Highway Department, Colo., 250 P.2d 1007, 1008, 'This is not an action in tort, nor is it one to impose liability upon the state, nor for the recovery of money that would finally come from the funds of the state treasury, neither would any political or governmental power of the executive branch of the state government be invaded through the relief sought.' The general principle thus announced definitely applies to the case at bar, because no additional burdens would be cast upon the funds of the state highway department. In support of this reasoning we find that here defendant highway department anticipated its needs, knew the extent of its liability and set aside and 'ear marked' money for the cost of gravel on this particular project, and the cost thereof was a part of the expenses for which these funds had already been allowed and allocated. These facts make this case and Boxberger v. State Highway Department, supra, wholly and clearly distinguishable from the case of Mitchell v. Board of County Commissioners, 112 Colo. 582, 152 P.2d 601, relied upon by defendant highway department herein. The Mitchell case, supra, was an action brought by a landowner against the highway department claiming damages to his land in the construction of a highway and bridge and if he recover for a tortious action, then a judgment would have to be satisfied from the funds of the department and therefore be an additional burden. Here no further liability would accrue other than that anticipated and for which provision is made.

Section 105(5), chapter 143, volume 4, '35 C.S.A., provided that the state engineer shall have the power to 'Acquire by purchase or condemnation stone or gravel beds and any other material suitable for highway construction.' (Italics supplied.) No doubt could exist that defendant highway department, in the instant case, could have condemned the gravel here taken in the event payment therefor could not have been agreed upon. Proper business-like action under the statute in making contracts for purchase, to avoid condemnation proceedings, should be looked upon with favor and is to be encouraged. When defendant highway department attempts to operate under the particular statutory power above set forth, the rights and responsibilities that follow are the same as those of individuals in ordinary business transactions with but few exceptions. Here the department was permitted, under a verbal agreement, to go onto plaintiffs' lands and remove gravel at a specified price per ton; it entered upon the lands, removed the amount of gravel...