80 So. 191 | La. | 1918
Relator prays for a writ of mandamus, directing the state highway engineer to issue in its favor Ms warrant, and directing the president of the state board of engineers to approve same, upon the state
Relator, as the successful bidder, was awarded a contract to build about 13% miles of highway in the parish of Bossier. The work was undertaken and completed according to the written contract and specifications, in consideration of a sum exceeding $50,000, all of which has been paid to relator, except $7,245.57. Defendants refuse to comply with relator’s demand for the reason that there were filed with the recorder of mortgages for the parish of Bossier claims for materials, supplies used, and labor performed in the construction of said highway, amounting to the sum thus withheld by them, and which would otherwise still be due to relator under its contract. It is admitted by the parties that the work was properly performed and that the balance of the contract price remaining unpaid is $7,245'.57.
Two defenses were pleaded to relator’s action. The first one is directed at the mode of proceeding, and the other is founded on the allegation that, though the work was properly completed, the stipulations in the contract have not entirely been complied with, in this, that there remains unfulfilled a condition in the bond furnished by relator to the effect that “all sums due upon material and supplies used and for wages earned by laborers and workmen employed upon the work to be done” shall be paid by relator.
It appears from the record that the contract, entered into on June 13, 1916, contains the following stipulation:
“Final payment and cancellation of bond will not be made until the contractor (relator herein) and his sureties have satisfactorily adjusted all claims and liens recorded in the office of the recorder of mortgages in the parish of Bossier against the contractor for all sums due upon materials used and for wages, earned by laborers and workmen employed in connection with the construction of this work.”
Relator contends that there are no claims of any kind pending against it for the work performed under the contract, but that the said claims, alleged to be of record in the parish of Bossier, are against Bishop & By-bee for materials, supplies, and labor furnished the said Bishop & Bybee; that said Bishop & Bybee were to the knowledge of respondents, and, with their consent, subcontractors who performed part of the work on said highway; that it (the relator) has paid the said Bishop & Bybee, and therefore cannot be held in law, or under the contract, bound for the payment of said claims.
There are several letters in the record, written by Mr. Cappel, bridge and office engineer, and others written to him, in which allusions are made to subcontractors. This correspondence, however, was entirely between the relator and the engineer in charge of the construction of the highway and in no manner releases the relator from the execution of any of the stipulations of the contract. On, the contrary, relator in a letter written November 11, 1916, expressly admits that it alone is responsible to the respondents for the work which it undertook under the contract of June 13, 1916. We find nothing in the record to justify relator’s contention that any part of the contract was sublet with the consent of respondents; but, on the contrary, we find a stipulation in the contract to the effect that “this contract shall not be assigned, nor shall any portion of the work thereunder be subcontracted without written authority of the state highway engineer,” and it is not pretended that there is any written authority from the state highway engineer to that effect. Bishop & Bybee must therefore be considered, so far as respondents are concerned, only as employes and agents of relator and not as its subcontractors.
The Act No. 49 of 1910, which is the mandate from the state of Louisiana under which respondents are carrying out their public trust, is the only source from which the authority they may exercise in the construction of public highways is derived. That act contains no provision, either to safeguard the claims of laborers and furnishers of material, or to authorize the state highway department to require from contractors any guaranty for the payment of such claims, and there is no law granting any lien or privilege on the public highways to secure the same.
In the case of State v. C. S. Jackson & Co., 137 La. 934, 69 South. 751, the state highway engineer, having under his control a balance due to the contractor, after completion of the work, deposited the fund in court, and caused to be cited the contractor and all those having claims for labor performed and material used in the construction of a highway. It was there held that the state had no interest in thus instituting a concursus proceeding, that there was no personal liability whatever on the part of the state to laborers and material-men, and that the mere moral or paternal interest which the state might have in a private matter of that kind could not serve as a basis for a cause of action.
It might be argued that relator, having consented and agreed to such a stipulation, is estopped from attacking its validity; but, on the other hand, the parties in whose favor it was made have no right of action on the bond which is payable to the state, they are not parties to this suit, and the state, as was decided in the Jackson Case, has no real interest to compel its fulfillment. It might be a proper and better policy for the state, in the construction of all public works, to assume a benevolent and paternal attitude and protect the claims of laborers, artisans, and furnishers of material, against contractors and subcontractors; but such a matter is exclusively within the control of the Legislature and not within the discretion of public officials and courts of justice. We are therefore of the opinion that relator’s proceeding by mandamus is supported by law, and that it is entitled to the relief which it asks.
For these reasons, the judgment appealed from is avoided and reversed, and it is now ordered that the writ of mandamus prayed for by relator be issued, commanding Duncan E. Buie, state highway engineer, to issue in its favor his warrant, and commanding Frank M. Kerr, president of the board of engineers, to approve same, upon the treasurer of the state of Louisiana, for the sum of $7,245.57 to be paid out of the fund created by Act No. 49 of 1910 and the contract of June 13, 1916, entered into by relator and respondents.