State Hwy. Comm'n v. Green-Boots Const. Co.

• Citation: 1947 OK 221,199 Okla. 477,187 P.2d 209
• Decision Date: 08 July 1947
• Docket Number: Case Number: 29958
• Parties: STATE HWY. COMM'N v. GREEN-BOOTS CONST. CO.
• Court: Supreme Court of Oklahoma

1947 OK 221

187 P.2d 209

199 Okla. 477

STATE HWY. COMM'N v. GREEN-BOOTS CONST. CO.

Case Number: 29958

Supreme Court of Oklahoma

Decided: July 8, 1947

Syllabus

¶0 1. MANDAMUS - Neither State Highway Commission nor Attorney General compelled by law to arbitrate disputes arising from highway construction contracts - Mandamus will not lie to review or correct their action in failing to agree and make award.

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. HIGHWAYS - State Highway Commission's duty under statute to audit all claims against State Highway Construction and Maintenance Fund - Not relieved of this duty by agreeing to submit all disputes to arbitration.

The State Highway Commission is required by section 19, ch. 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 - Writ may not issue to control decision of officer vested with discretion even though no other method of review except where such officer guilty of gross abuse of discretion, or has acted through fraud and without reason.

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. SAME - Decision of Commission in disallowing claim against Highway Construction and Maintenance Fund, where conflict in evidence, not fraudulent, arbitrary, and without reason.

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. HIGHWAYS - Ministerial duty of Highway Commission to reject and disallow portion of claim not supported by prior written agreements by Highway Commission as required by contract.

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. SAME - State Engineer powerless to waive provisions of contract requiring prior written agreements by Highway Commission.

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. STATES - Suit against state - Right to maintain.

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 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.

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

Action by Green-Boots Construction Company against the State Highway Commission as in mandamus, to enforce a claim against the State Highway Construction and Maintenance Fund. From judgment commanding allowance and payment of portion of claim, Highway Commission appealed. Judgment reversed and case dismissed.

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

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

JOHNSON, S. J.

¶1 This case sequels the persistent efforts of the Green-Boots Construction Company and its predecessor, extending over a period of more than 20 years, to enforce a claim for payment of $155,576.44 covering alleged items of loss incurred in the construction of approximately 15 miles of Bates type reinforced concrete pavement between Dewey, Okla., and the Kansas line in Washington county, Okla. 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 11, 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.

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

¶3 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.

¶4 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 of 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 claims. . . ."

¶5 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.

¶6 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.

¶7 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.

¶8 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...