State v. Van Wyck
| Citation | 20 Wash. 39,54 P. 768 |
| Parties | STATE EX REL. DAHLQUIST v. VAN WYCK, COUNTY AUDITOR. |
| Decision Date | 06 October 1898 |
| Court | United States State Supreme Court of Washington |
Appeal from superior court, Whatcom county; H. E. Hadley, Judge.
Application for a writ of mandate, upon relation of T. S. Dahlquist against Alex Van Wyck, auditor of Whatcom county. From a judgment denying a peremptory writ, relator appeals. Reversed.
John R. Crites and Frye & Webster, for appellant.
J. W Romaine, for respondent.
This was an application to the superior court of Whatcom county for a writ of mandate to compel the respondent, as auditor of that county, to issue two warrants in favor of one C.J Pidwell, and to deliver the same to the appellant upon the order of said Pidwell. On May 18, 1897, the county of Whatcom, by the board of construction, entered into a contract, under and by virtue of an act of the legislature approved March 15, 1893, entitled "An act providing for the establishment of a system of improved roads in counties and providing for the manner of laying out, constructing and maintaining the same" (Laws 1893, p. 301), with the said Pidwell, for the construction of sections 1 and 4 of a certain road improvement in Whatcom county, known and designated in the contract as the "Ferndale and Blaine Road Improvement No. 10." This contract provided that monthly payments should be made to the contractor in an amount equal to 80 per cent. of the estimated value of the labor performed and materials furnished during the month, as ascertained by the board of construction. After the execution of the agreement, the contractor proceeded to discharge his duties thereunder, and estimates were made by the board of construction for the months of June and July 1897; and warrants were issued by the respondent on the proper funds in payment of the amounts due, upon the order of the contractor. On September 4, 1897, the board of construction certified its estimate for the month of August, and filed the same with the respondent, in accordance with the statute and the terms of the contract. The amount then due, after making all proper deductions, was $862.25. Prior to the time of filing the certificate, however, and on or about August 24th, the contractor delivered to appellant the following order, addressed to the respondent: The warrants were not drawn by the respondent as requested in this order, and on September 15th appellant made a demand for the same, which demand was not complied with by the respondent. On September 24th, the contractor, Pidwell, made a supplemental order designating the particular funds upon which he desired the warrants to be drawn. Thereafter, respondent still refusing to issue the warrants, appellant instituted this proceeding, and caused an alternative writ of mandate to be issued, commanding the respondent to issue the warrants, or to show cause why he had not done so, at a time specified therein. On the return day of the alternative writ, the respondent appeared and filed his answer and return, denying several allegations of the affidavit and writ, and setting up as a first affirmative defense and return: (1) That on the 15th day of September, 1897, and before any demand had been made upon him as county auditor for the issuance of these warrants upon the August estimate, and before they could have been legally issued under the statute, the board of construction in charge of said work, by and with the concurrence of the county surveyor, who was the engineer in charge of the work, having full power thereto in them vested by the provisions of the contract and under the act above referred to, duly made and passed an order and resolution ajudging and declaring that the said Pidwell, as such contractor, had wholly violated and broken, abandoned, and forfeited his contract, and further declaring that the county of Whatcom was, by and on account of such abandonment and forfeiture upon the part of said contractor, wholly released from all the obligations of the contract, and declaring that said Pidwell had forfeited all his rights thereunder by the express terms and stipulations thereof, and that all unpaid percentages and estimates then in the hands of the county of Whatcom be retained and held by said county as an indemnity to said county for such forfeiture, violation, and abandonment as expressed and stipulated in said contract; and (2) that on the same day, to wit, the 15th day of September, 1897, the board of county commissioners of Whatcom county, in accordance with the order and decision of the engineer in charge of said work, and of the order and resolution of the board of construction as aforesaid, did also, by and on behalf of said county, duly and regularly pass an order and resolution adjudging and declaring said contract broken, violated, forfeited, and abandoned by the said Pidwell, on the ground and for the reason that he had wholly failed and neglected and refused to comply with the terms and conditions thereof as to the manner of doing the work and improvement under said contract, and the amount and character of the materials used in the work, and also upon the ground that the said Pidwell had wholly ceased to work upon said improvement, which order and decision further ordered and declared that all unpaid estimates and percentages then due or to become due to said Pidwell, as said contractor, be forfeited to said county of Whatcom according to the provisions of said contract. As a second affirmative return and defense, the respondent pleaded a...
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