Utah Construction Company v. State Highway Commission

Decision Date13 March 1933
Docket Number1773
Citation19 P.2d 951,45 Wyo. 403
PartiesUTAH CONSTRUCTION COMPANY v. STATE HIGHWAY COMMISSION
CourtWyoming Supreme Court

ERROR to District Court, Laramie County; JAMES H. BURGESS, Judge.

Action by the Utah Construction Company against the Wyoming State Highway Commission to recover balance claimed due for performance for a highway construction contract.

A demurrer to plaintiff's petition was sustained and the plaintiff elected to stand on its pleading. From a judgment against plaintiff it brings error.

Judgment affirmed.

For the plaintiff and appellant there was a brief by John W. Lacey John U. Loomis, W. L. Walls and C. R. Ellery, all of Cheyenne, Wyoming, and A. E. Bowen, of Salt Lake City, Utah and oral arguments by Mr. Lacey and Mr. Ellery.

Vouchers on the highway fund are payable if approved by the superintendent. Laws 1919, Ch. 132, Sec. 10. Suitable compensation for increased cost of construction had to be determined before a claim could be filed, and as to this plaintiff and defendant were in disagreement. The auditor could not determine this question, it being judicial. Monongahela Nav. Co. v. U.S. 148 U.S. 312; U. S v. Collieries, 262 U.S. 341-343; Article II, Sec. 1, Wyo. Const.; Article V, Sec. 1, Wyo. Const.; State v. Burdick, 3 Wyo. 587. A claim against the state does not accrue until rate of compensation has been determined within the meaning of Sec. 121, C. S. 1920; Kirschler v. Wainwright, (Pa.) 100 A. 484; King v. Pomeroy, C. C. A. 8th Cir., 121 F. 257; Bernheimer v. Converse, 206 U.S. 516; Miller v. Connor, (Mo.) 160 S.W. 582; Shipman v. Treadwell, (N. Y.) 102 N.E. 634; Allen v. Stephens, (Ga.) 29 S.E. 443. The highway superintendent is without power to audit claims but he must approve claims before they can be audited; if he refuses to do so, action may be brought on highway contracts. Sec. 3035, C. S., Art. IV, Sec. 11-12; Art. XVI, Sec. 7; Sec. 109-302-306-308-311, R. S. 1931. As a matter of routine, the statute provides that claims against the highway fund shall be approved by the superintendent. L. 1919, Ch. 132; 3034 C. S.; 52-111, R. S. 1931. The word "approved" has been defined by the courts, State v. Gee, (Ore.) 42 P. 7-9; State v. Rhein, (Iowa) 127 N.W. 1079; Long v. Needham, (Mont.) 96 P. 731; State v. Smith, (Mont.) 57 P. 449; and also the term "audit." Territory v. Grant, (Wyo.) 21 P. 613; State v. Burdick, 3 Wyo. 587; Wadhams Oil Co. v. Tracy, (Wis.) 123 N.W. 785; State v. Hackman, (Mo.) 207 S.W. 494; State v. Wilder, (Mo. ) 95 S.W. 396; Clark v. Carter, (Okla.) 209 P. 932; State v. Steen, (N. D.) 236 N.W. 251; U'Ren v. Board, (Cal.) 159 P. 615. Where a highway superintendent refuses to approve a claim, a suit is essential before claim can be audited. 52-111, R. S. 1931; 52-101, R. S. 1931. No restrictions or conditions precedent are imposed upon commencement of a suit against the commission upon its contracts; the legislature may specify conditions under which an action may be brought against the state, Goodhope v. State, (S. D.) 211 N.W. 451; State v. Kelly, (N. M.) 202 P. 524; State v. Court, (Wash.) 151 P. 108; Peterson v. State, (Nebr.) 203 N.W. 1002; Article V, Sec. 22, Const., and courts have necessary jurisdiction to entertain such suits. Sec. 1100-1105, C. S. Lemon v. Comm., (Mass.) 129 N.E. 382; Ross v. State, 173 N.Y. 656; Varnado v. State, (La.) 136 So. 771; McCandless Const. Co. v. Board, (Kans.) 296 P. 720; Welsbach v. State, (Cal.) 275 P. 436. Conditions precedent will not be read into the statute. Int. Harv. Co. v. Co., (Wyo.) 170 P. 6-7; Camenetti v. U.S. 242 U.S. 470; Corona Coal Co. v. U.S. 263 U.S. 537. Plaintiff's claim was unliquidated until suitable compensation had been determined. Sanborn Co. v. Butler, (Ore.) 178 P. 228; Waterman Co. v. School Dist., (Mich.) 150 N.W. 104; Nassoiy v. Tomlinson, (N. Y.) 42 N.E. 715; Hall v. State, (Miss.) 29 So. 994; Gulf Export Co. v. St., (Miss.) 73 So. 281; Westinghouse Co. v. Chamber, (Calif.) 145 P. 1025; Stuart v. Smith Co., (Va.) 96 S.W. 242; State v. Snyder, 212 P. 771. It must be assumed that the legislature had in mind the fact than an unliquidated demand predicated upon contract, executed by the commission, could not be submitted for audit until liquidated through some procedure provided for that purpose and that the permitted suit constitute the method designated by the legislature for liquidating demands and claims of an unliquidated character.

For the defendant in error there was a brief by James A. Greenwood, Attorney General; Richard J. Jackson, Deputy Attorney General; George W. Ferguson, Assistant Attorney General; R. Dwight Wallace, Assistant Attorney General; M. A. Kline and W. O. Wilson, all of Cheyenne, Wyoming, and oral arguments by Messrs. Greenwood, Jackson, Ferguson, Kline and Wilson.

The court will consider the entire record and affirm the judgment if correct even though based upon an erroneous theory. Stevens v. Laub, 38 Wyo. 182; Kabell v Kabell, 42 Wyo. 360; Sewall v. McGovern, 29 Wyo. 62; Newton v. Town Comm., 64 A. 229; Crittenden v. Ass'n, (Ga.) 36 S.E. 643; Vincent v. Ellis, (Ia.) 88 N.W. 836; Porter v. Mining Co., (Mont.) 74 P. 938; Colburn v. Burlingame, (Cal.) 214 P. 226; Jessey v. Butterfield, (Colo.) 157 P. 1; Bd. v. Riggs, (Ind.) 117 N.E. 214; Self v. York, (Ky.) 271 S.W. 666; Loan Co. v. Moore, (Mo.) 217 S.W. 286; State v. Oklahoma City, (Okla.) 168 P. 227; Wormward v. Brown, (Ida.) 294 P. 331; Chesney v. Valley Livestock Co., 34 Wyo. 378; Allen v. Lewis, 26 Wyo. 85; Elliott v. Sloan, 38 Wyo. 276. The trial court was without jurisdiction, the statute (Chap. 132, Laws 1919) being unconstitutional because of a defective title. Art. III, Sec. 24, Const., in re Fourth Judicial District, 4 Wyo. 133; in re Boulter, 5 Wyo. 329; Board v. Stone, 7 Wyo. 280; Farm Inv. Co. v. Carpenter, 9 Wyo. 110; State v. Tobin, 31 Wyo. 355 and cases cited. See also People v. R. R. Co., 24 N.Y. 485; Memphis St. Ry. Co. v. Byrne, (Tenn.) 104 N.W. 460 and cases cited. Johnson v. Grady County, (Okla.) 150 P. 497; Watkins v. Bigelow, (Minn.) 100 N.W. 1104. Suits against the state are a distinct subject of legislation and may not be included in acts dealing with other subjects. State v. Love, (Fla.) 126 So. 374 and cases cited. Where the principal to a contract is disclosed no action can be maintained against the agent or agency making such contract in behalf of its principal. 2 C. J. 812; 46 C. J. 1046; Hodgson v. Dexter, 1 Cranch 345; Iron Works v. U. S. Board, 295 F. 415. The State of Wyoming can not be sued without its consent. State Highway Commission v. Utah Construction Company, 287 U.S. 194, 36 Cyc. 913; Heman Const. Co. v. Capper, (Kans.) 182 P. 386. Statutes permitting a state to be sued will be strictly construed. Miller v. Pillsbury, (Cal.) 128 P. 327; Asbell v. State, (Kans.) 55 P. 338, 23 Amer. and English Enc. Law, 1st Ed. 83; Hjorth Co. v. Trustees, 30 Wyo. 309; Raubaugh v. State, 95 Ohio St. 513; Davis v. Mortensen, (Nebr.) 95 N.W. 831; Midwest Co. v. Board, 39 Wyo. 461. The state is not bound unless it is expressly named in such statutes. Falchouse v. Board, (Kans.) 224 P. 70; Seton v. Hoyt, (Ore.) 55 P. 567; Savings Soc. v. City, (Calif.) 63 P. 665. The second amended petition is fatally defective in failing to allege the filing of a claim in writing, verified, with an officer whose duty it was to audit the same. State Com. v. Utah Cons. Co., supra; Hautz v. Connors, 11 Wyo. 152; Commrs. v. Denebrink, 15 Wyo. 342; Town v. Ladd, 37 Wyo. 419 and cases cited. The term "audit" has been defined by this court. Territory v. Grant, 3 Wyo. 231; see also State v. Wheeler, (Wash.) 263 P. 496; State v. Burdick, 3 Wyo. 589. A claim accrues within the meaning of the statute when it comes to maturity and is payable. Cutcliff v. McAnally, (Ala.) 7 So. 331; Cochise v. Wilcox, (Ariz.) 127 P. 758; Perrin v. Honeycutt, (Calif.) 77 P. 776; Herdman v. Board, (Kans.) 50 P. 946; Stillwater Co. v. Board, (Okla.) 110 P. 1002; Horner v. Pierce Co., (Wash.) 191 P. 396; Albert Co. v. Swift, (Ga.) 58 S.E. 396; Kaw Valley Dist. v. Board, (Kans.) 232 P. 1056. The case of Welshbach v. State, (Calif.) cited by appellant is not in point since the California Constitution contains no provision similar to Article XVI, Sec. 7, supra. The action can not be maintained by defendant as no orders were proven; the correspondence attached to the petition did not constitute orders within the terms of the specifications. Hoskins v. Co., (Ore.) 176 P. 123; City v. Lynch McDonald Co., (Mo.) 261 S.W. 356; Orpheum Co. v. Cas. Co., 239 S.W. 841. Plaintiff's petition is defective in failing to allege the changes to have been made upon written orders of the highway engineer; the action cannot be maintained under the supplemental contract as there was no authority in law for making the supplemental contract. Art. XVI, Sec. 6, 9; Laws 1919, Chap. 132, Sec. 3; St. v. Morgan, 35 Wyo. 92; Kieburtz v. Seattle, (Wash.) 146 P. 400; 3 McQuillin Mun. Corp., 2620-2621; Lassiter & Co. v. Taylor, (Fla.) 69 A. L. R. 689; and cases in note. Greenlee Co. v. Webster, 215 P. 161; Co. of Cook v. Harness, 108 F. 151; Elliott v. Oliver, (Ark.) 227 S.W. 586. It is the policy of the state that contracts for public improvements shall not be let unless on advertisement, and competitive bidding, and after such work has been completed and a contract let, no extra compensation shall be allowed to the contractor. Art. III, Sec. 30, Const.; Sec. 52-103, R. S. 1931; 44 C. J. 324; Twohy Bros. Co. v. District, (Ore.) 210 P. 873; Law of Public Contracts, Donnelly, 187, Sec. 114 and cases cited; Snowball v. Maney Co., 39 Wyo. 84; Kieburtz v. Seattle, 146 P. 400; 2 Elliott on Contracts 31. The action cannot be maintained under the provision "for additional work" because such provision is restricted to...

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