State Ex Rel. Black v. State Road Commission

Maxwell, Judge: Section 72 of the Standard Specifications prescribed by the State Road Commission for state road construction contains the provision that “stone exceeding three (3) inches in its largest diameter shall not remain within three (3)' inches of the completed surface”. Relators entered into a contract with the commission for the grading of project No. 3285-C of approximately 30,200 feet in length. The proposal and contract of the relators was to do the work in accordance with the plans which had been prepared therefor, and in accordance with the Standard Specifications. The plans and specifications •were made part of the contract. Relators say that in order to comply with' the above quoted requirement of the Standard Specifications, it was necessary for them to remove 4248 cubic yards of rock and dirt beneath the line of the crown of the road, and that after the removal of this material it was necessary to “back fill” with material suitable for the purpose. They seek a mandamus to compel the division engineer to certify for payment a final estimate covering the amount of material thus removed, at the contract price of 44c per cubic yard for classified material, amounting to $1,869.12, and to *43 require tbe members of tbe State Road Commission, upon tbe making and. filing of sucb estimate by tbe division engineer, to execute a requisition upon tbe auditor of tbe state for tbe payment of said sum. Other items were at first involved in this proceeding, but they have been eliminated. Section 32 of the Standard Specifications reads: “Work done without the lines and grades given,.work done beyond tbe lines and grades shown on the plans or as given, except as herein provided, work done after a suspension has been ordered, or any extra work done without written authority will be considered as unauthorized and at the expense of the contractor and will not be measured or paid for by the Commission. Work so done may be ordered removed or replaced at the Contractor’s expense.” On the plan for the job undertaken by the relators there is portrayed a typical cross-section of the road as proposed to be graded. This cross-section clearly shows the crown or finished grade of the road but does not show a horizontal line across the radius of the road indicating a maximum pay line in rock cuts. Relators are not entitled to pay for excavation made below the crown of the road unless their contract provides therefor or unless it was outside the terms of the contract and they were required to perform the extra service by an authorized representative of the State Road Commission. In the light of the provisions of the above quoted section 32 of the Standard Specifications and in the further light of the cross-section of the road appearing on the plans, as above indicated, the contractors must be held to have undertaken to complete the grading of the road in accordance with standard requirements and to receive pay on the basis of measurements determined by the contour of the crown of the road. Excavation below the crown of the road and the removal of stone therefrom and “back filling” was an incident of the main undertaking to complete the road to the grade of the crown. Of course, if the plans had portrayed a horizontal line below the crown of the road as the maximum pay line in rock cuts, the situation would be different ; but it was wholly within the province of the road commission and the relators to enter into a contract for the grading of the road in accordance with plans and Standard Speci *44 fications 'without making provision for compensation for removing materials below the crown of the road. The contractors may have thought that they were to receive pay on the basis of unclassified excavation for work done below the crown of the road, but we must look to the contract and the plans for a final determination of what they undertook to do and for the basis of their compensation. One of the relators testifies that the work done under the item now involved in suit was at the direction of E. N. Black-wood, who was the inspector on the job and for at least a part of the time was acting assistant district engineer. Mr. Blackwood says that he did not direct that the material be removed below the grade of the crown of the road, but that he did call to the attention of the contractors the provisions of section 72 of the Standard Specifications requiring that no stone exceeding three inches in the largest diameter be permitted to remain within three inches of the completed surface. In our opinion it is unimportant just what construction be placed on the communication from Blackwood to the contractors, whether it be deemed to have been an order or direction to remove the stone within three inches of the surface of the road, or whether it be considered to have been a mere reminder of the requirements of the Standard Specification^ with reference thereto. The removal of that stone was a contract matter. The relators had undertaken to do that very thing. Were they entitled to pay for it by the cubic yard, or was it an incident to the work for which estimates were made by the engineer and compensation paid by the State Road Commission? We have already indicated that under the terms of the contract, the latter proposition must be considered to be the correct one. After the work had been completed B. G-. Etchison, Assistant Division Engineer, reported to the commission that the rela-tors should be paid for the 4248 cubic yards of rock cut excavation, but the commission declined to act in conformity therewith. Relators say that the commission should have acted in conformity with the report; that there then remained for the commission, after accepting' the road, merely the ministerial duty of paying the contractors the amount ap *45 proved by the engineer. In support of this position sections .52 and 62 of the Standard Specifications are relied upon. They quote a part of 52 and all of 62 as follows: Section 52. “The Engineer shall decide * * # all questions as to the acceptable fulfillment of the contract on the part of the Contractor; and the Engineer shall, determine the amount and quality of' the several kinds of work performed * * * which are to be paid for under the contract and such decision and estimate shall be final and conclusive * * *.” Section 62. “Whenever, in the opinion of the Engineer, the Contractor shall have completed the roadway in an acceptable manner in accordance with the terms of the contract, the Commission shall cause to be made a final inspection of the entire roadway and if found satisfactory shall enter an order accepting the same. The final estimate shall then be made by the Engineer within thirty days of the date of the said order of acceptance or as soon thereafter as practicable, and the Contraetor paid the full amount due.” Whatever may be the effect of a division engineer’s report under said regulations as to the character of the work done, it cannot be said that the commission is thereby precluded from asserting its interpretation of the contract with reference to the basis of the compensation to the contractor. Our case of Draper v. Anderson et al., 102 W. Va. 633, relied on by relators, does not sustain the position of relators in this particular. It is there held “that * * * the Road Commission may be compelled by mandamus, at the instance of the contractors in cases not involving a substantial controversy of fact, to issue a requisition upon the auditor for labor performed by them in the construction of a state road under a contract with the State, by the Road Commission. ’ ’ Clearly, the “labor performed by them * * * under a contract” there referred to, is labor for which the contractors are to be paid under the terms of the contract, — not labor as to which there may be a legal question as to whether the contract con *46 templates compensation to the contractors. The Draper case only went to the extent of holding, as declared in syllabus one, that ‘ ‘ The performance by public officials of a plain legal duty, not involving the exercise of discretion or judgment on their part, may be enforced by writ of mandamus.” The converse is necessarily true. Where there is not a plain statutory duty to be performed mandamus will not lie. There is no duty, statutory or otherwise, devolving upon the commission to pay for work for which it did not contract to pay, or which, not being under the terms of a contract, was not performed under direction or order of an authorized representative of the commission as extra work. The situation is in no wise controlled by a recommendation of one of the commission’s engineers that the work should be paid for. Such recommendation does not affect the contract. “Since the purpose of a writ of mandamus is not to establish a legal right but to enforce one which has already been established, the legal right of plaintiff or relator to the performance of the particular act of which performance is sought must be clear and complete.” 38 C. J. 582. A doubtful or substantially disputed right will not be enforced by mandamus. Idem, p. 585. The writ is never issued in a doubtful case. “Clear legal right of the relator in mandamus to have performance of the act he seeks to coerce performance of, and plain duty to perform it, on the part of the respondent, are essential to the award of the writ.” Smith v. County Court, 78 W. Va. 168. Under these well settled principles the writ could in no event be awarded in the instant case. The most liberal concessions to the relators would involve a question of doubt. Writ denied.