65 Wash. 385 | Wash. | 1911
— This is a mandamus proceeding, wherein the relator seeks to compel the city engineer and the board of public works of' the city of Spokane to make an estimate in
We need notice only certain facts stated in the court’s findings, to which no exceptions were taken, and which may therefore be considered as no longer in dispute. These facts are also set forth in the affidavit for the writ, and therefore will be sufficient for our consideration of the court’s ruling upon the demurrer. They are, in substance, as follows: On August 24, 1908, the relator entered into a contract with the city to construct a viaduct and fill upon Sprague avenue according to plans and specifications prepared therefor. By the terms of the contract, it was agreed, among other things, as follows:
“It is further understood and agreed, between the parties hereto, that all of said work shall be performed and all of said material shall be furnished under the supervision, direction and control and to the complete satisfaction of the board of public works, and its representative, the city engineer, who is acknowledged to be the representative of said board of public works, . . .
“In consideration of the performance of the terms and conditions of this contract by the party of the. second part, said party of the first part agrees to pay to said party of the second part the sum of eighty-six thousand nine hundred ($86,900) dollars, the same to be paid upon estimates made in the following manner: On the first of the month, sixty (60) days after work has been started, and each sixty (60) days thereafter, the party .of the second part .shall be allowed an estimate of eighty (80%) per cent of the work completed at such times, such estimate to be made by the city engineer, it being understood, however, that twenty (20%) per cent of the total contract price shall be withheld until the work is finished and accepted, and it is further understood and agreed*387 that the first twenty thousand ($20,000) dollars, paid to said party of the second part in accordance with the terms hereof shall be paid in cash or by warrants upon the general fund, and the payment of the balance of said contract price, to wit, the sum of sixty-six thousand nine hundred ($66,900) dollars shall be paid in such manner that sixteen thousand seven hundred and twenty-five ($16,725) dollars shall be due in one year from the date of the issuance of the warrants covering said named sum; sixteen thousand seven hundred and twenty-five ($16,725) dollars to be paid in two years from the date of the issuance of the warrants covering said named sum; sixteen thousand seven hundred twenty-five ($16,725) dollars to be paid in three years from the date of the issuance of the warrants covering said named sum; and sixteen thousand seven hundred twenty-five ($16,725) dollars to be paid in four years from the date of the issuance of the warrants covering said named sum. All warrants evidencing the payment of said sixty-six thousand nine hundred ($66,-900) dollars shall bear interest at the rate of six (6%) per cent per annum . . .”
Thereafter the relator entered upon the construction of the improvement, in pursuance of the plans and specifications as interpreted by the city engineer and the board of public works, until February 5, 1909, when the specifications were modified in certain particulars by the defendants with the consent of the relator, but without materially altering the character or the nature of the work to be performed. Thereafter the relator continued the construction in accordance with the plans and specifications as modified and as interpreted by the city engineer and the board of public works, and has completed a large part of the work. All of this work was performed under the direction and supervision of the city engineer and the board of public works, and to their entire satisfaction, and the same was from time to time, as- it was constructed and done, accepted by the city engineer and the board of public works. Estimates were made from time to time, as provided by the contract, upon completed portions of the work, and as the estimates were made, there was paid to the relator in cash and warrants eighty per cent of the amount
The first and principal contention made by counsel for the city is that the relator cannot invoke the remedy of mandamus to litigate the questions presented by his affidavit for the writ and the appellant’s answer thereto. It seems to us that the previous holding of this court as to the nature of mandamus proceedings under our law show that this contention cannot be successfully maintained. We are not able to distinguish the case of State ex rel. Brown v. McQuade, 36 Wash. 579, 79 Pac. 207, from this case, in so far as the principle involved is concerned. In that case mandamus was held to be a proper remedy to compel a school board to issue a warrant to a teacher in payment of a balance due on his salary, payable by warrants under his contract of employment, notwithstanding there was involved an issue of fact as to amount due upon the contract of employment. The contention there made was that mandamus was not a proceeding in which disputed claims could be litigated. The right of the teacher to a warrant in that case, like the right of this relator to an estimate in this case, was simply a right to
“As his contract with the district provided that he was to be paid by a warrant drawn by the school board on the county treasurer, in no other way was he entitled to receive payment for his services, and unless he can force the board to act, it is difficult to see how he is going to get paid at all. An action at law against the district will not furnish him relief. The most he could obtain by such an action would be a judgment against the district, which would entitle him to a warrant drawn by the directors on the county treasurer. He could not obtain a judgment which could be collected by execution. If the judgment was not paid voluntarily — if the directors still refused to act of their own volition — he would yet have to resort to mandamus to secure his rights. It would seem, therefore, that in reason the claimant could resort to the remedy of mandamus in the first instance.”
These observations are peculiarly applicable to this case, in view of the fact that whatever balance is due to the relator under this contract is payable only in warrants to mature in the future. The fact that the amount of the claim was in dispute was there held to be no reason for holding that mandamus was not an appropriate remedy, upon the theory that under our law “the procedure has in it all the elements of a civil action.” The previous decisions of the court were critically reviewed in that case and found to be in hai’mony with this view, which has since then been adhered to. State ex rel. Gillette v. Clausen, 44 Wash. 437, 87 Pac. 498; State ex rel. Bario v. Board of Drainage Com'rs, 46 Wash. 474, 90 Pac. 660; State ex rel. Maltbie v. Will, 54 Wash. 453, 103 Pac. 479, 104 Pac. 797.
Counsel for appellants insist that, “In determining the question here presented it is only necessary to observe the distinction between the enforcement of a duty based upon a contractual obligation and a duty required by law. In the latter case a writ of mandate will always be issued, but in the
Counsel for appellants insist that there is no provision of law or charter requiring such estimates to be made by the engineer or board, and for that reason it is not a duty which the law enjoins upon either of them. But we think that if this contract was lawfully entered into, and it is not con
“Sec. 97. The board of public works shall have exclusive charge of the improvement and extension of all streets and alleys. . . . They shall have charge of all bridges and the erection and improvement of the same.”
“Sec. 99. The board shall have charge of all public works of every kind where not otherwise provided for in this charter, and charge of all furnishing of material and supplies for such works.”
See code and charter of the city of Spokane, 1903, p. 35.
Ordinance No. A10, found on page 71 of the same volume, prescribes, among other duties of the city engineer, the following :
“He shall, in addition to the duties prescribed by the charter, perform such services and duties as may be prescribed or directed from time to time by the board of public works.”
This contract was executed by the board of public works in behalf of the city. This was clearly a sufficient direction by the board as to the engineer’s duties in the making of these estimates. It is therefore clear to us that both the city engineer and the board had these duties cast upon them by law, and that such duties did not grow out of any contract in which they had any personal rights whatever, and, hence, it-cannot be said that this is an attempt to enforce contractual obligations as against the engineer and the board, and nothing is sought in this proceeding except to compel such action.
It is next contended that the trial court committed error in declining to accept proof offered by counsel for appellants tending to show that the work had not been done according to
“That all of said work was performed under the direct supervision and direction of said J. C. Ralston, the then city engineer, and the board, of public works, and to their entire satisfaction, and the same was, from time to time, as it was constructed and done, accepted by the said defendant, J. C. Ralston, the then city engineer, and the board of public workswhich finding was not excepted to, we think evidence upon the question of failure to. perform the contract according to plans and specifications became immaterial, there being no question of fraud or mistake involved in the acceptance of the work by the engineer and board.
We find no error in the record, and conclude that the judgment must be affirmed, and it is so ordered.
All concur.