Motion to Dismiss — R. C. Wetherall, Jr. v. State Road Commission of West Virginia

. ‘

. . ad

. °e .

7 X ° ° .

uJ = = ~— ~ — —s = a

eg ne I te ’

» -* y . E : »

. e ° , . , . i. ae ° : e/*

, “

; 3 ; ne OR ;

ay ; AY, » ea Dies Soreae Got US

« eS SUNT: Agr _COURF, rs a ; ‘7 * a D

ween, he |

ee Re ieee sep 3 ims.

“4284

_ SUPREME COURT OF THE UNITED STATES

October Term, 1965

~ R.C. WETHERALL, JR, AND PAUL PRICE ‘

. | Appellants

" ™ ‘ . th : |

THE STATE ROAD COMMISSION OF WEST VIRGINIA, A CORPORA-

TION, AND BURL A. SAWYERS, AS STATE ROAD COMMISSIONER,

Appellees

&

ON APPEAL FROM THE CIRCUIT COURT OF KANAWHA COUNTY, pay

. WEST VIRGINIA

MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION

-

' & DONALD ROBERTSON -

; . a State of West Virginia °

Eee oe As _. Charleston, West Yirginia =.

. . PHILIP J. GRAZIANI , te

i +" Deputy Attorney General ”

| ~ State of West Virginia

” -* - Charleston, West Virginia

C. ROBERT SARVER ‘

® State of West Virginia .

>

he . | ’ . Charleston, West Virginia -

Vi

-

SS.

&

No.

' In the

ae 2 cae

SUPREME COURT OF. THE UNITED STATES ©

October Term, 1965

R.C. WETHERALL, Jr. and Paul Price

v. are Appellants

THE STATE ROAD COMMISSION OF WEST VIRGINIA,

A CORPORATION, AND BURL A. SAWYERS.,, . ; ~

AS STATE ROAD COMMISSIONER, . Appellants

oa heed _ the Circuit Court of Kanawha

County, West Vitginia

Motion to Dismiss Appeal] for Lack of Jutisdiction.

INDEX,

r Red, Page

STATEMENT RN saa

MOTION TO DISMISS .........s+essssssssesesoeseseeseevene Reset ere auc cal

MI Sid iyi scciiatnehsinchsaiioiixes neha oovbiesberncanasaita bine 2

. 7 JUDGMENT BELOW WAS BASED°ON AN ADEQUATE

, NON-FEDERAL GROUND AS TO APPELLANT WETHERALL

COPPER OOOH SEH eee EEE EEE EHH ODED EH EEE E EOD Leeeeevvesivvcvevecveveres

II. THE JUDGMENT BELOW. WAS BASED ON AN ADEQUATE

NON- FEDERAL GROUND AS TO APPELLANT PRICE. sean ba ek 3

Ill. THE FEDERAL L QUESTIONS SOUGHT TO BE REVIEWED WERE

NOT TIMELY RAISED AND WERE NOT EXPRESSLY PASSED

Se Ss Oy SEE chic cencscucticnnschastnasendncgas sovkebunene 5

TI winsse asi ienssnnsandnnantapemeronnsonns ops a seeeeasennveceoetcnssseeces 6

CITATIONS | , ‘

CASES:

Rosenfeld v. Continental Building Operating Co., 135. F.

_ > reo CMMs AeUdbeebabeeenbathucvubikabhet vs 2

Capo v. C-O Two Fire Equipment Co., 93 F. Supp. 4............. 2

Rock Drilling etc. v. Mason et al, 217 F2d 687.................... 2

Ison et al _v. Crisp Corp, 146.W. Va. ARE ee ee 2

German Alliance Insurance Company v. Home Water duane Co.

I Mh sid sinucevavlesahsnbhebusesbabandteusngbeteesebaensasevensiens 2.

_ Draper v. Anderson; 102 W. Va. BFP a yssntsesenrsveeeesencosvosssnons 3

US. gy. Geneeal Motors, 323_ U.S. 373 ........0cer0gccoscssscencves2s 5

_ U.S. v. Certain Lands etc, 220 F. Supp. 696 y..ccscccssescveeee 5

Graham v. City of Duncan, cog i ieeererenr suanakaatanwise 5

i 2A SP 4k a) een wbikouienatbeis 5

State v. Graney, BED Bs VO. GAD ccsvcesnscctcccosscere isaabasgia inbiiee 5

Riggs v. State Road CommisSioner, 120 W.VA. 298 .........+++. 5

SREY GY, SUMMON, 196 W. VA. 49D ....c0cssecceseoscersversosesovonens 5

Childers v. State Road Commissioner, 124 W. Va. 233 -----0ee 5

Raley v. State of Ohio, 360 U.S. 423........cccssececssereeeserereee 6

Slagle v. = 366, U.S. 295 01.1.....2eccccesccrssetevscsrecccceoeeess 6.

= |

- STATE CONSTITUTIONAL PROVISIONS:

Section 9, Article III of the Constitution of West Virginia ............

STATE STATUTES:

Chapter 14, Code of West Virginia, 1931, as Amended: |

I ste R Nain dines inaik sce andeenencstinesienminanadkennieaneuanaie

Article 2,¢Section 3 .......ccccscseeeesesesees peananhinpetinass Visco eeahisents

SU a ah ais cle eentianndman enna

STATE RULES OF CIVIL PROCEDURE: |

‘Rule 17 (a) ..0.......0... =A aM nO SE ee ichasec cen ean

ili

STATEMENT FOR THE CASE

. On October 28, 1960, Appellant Price was awarded a contract

by appellee State Road Commission involving certain road, dam and

causeway censtruction. On November 29, ‘1960, Price and appellant

‘ Wetherall entered into a contract whereby Wetherall would perform

all of the work called for in Price’s contract with the State Road

Commission and, -in return, would receive 90% of the money ‘to be

paid Price. ‘At no time was appellee informed of this clandestine

agreement and during the course of the work, which dragged on for

- some time after the scheduled completion date, various subterfuges |

were employed’ to disguise the true status of the person actually per-

forming the work.

Upon completion and acceptance of the project, a dispute arose

between Price, who still represented himself as having performed .

the work, and the State Road Commission, over certain provisions

in the work specifications. ‘It was only then that appellant Wetherall

came upon the scene and commenced a declaratory judgment action

in the Circuit Court of Kanawha County, West Virginia, naming Price, _

the Road Commission and its Commissioner as defendants. ‘This

action, filed - September 24, 1963, asked:

1) Thata certain provision of the contract between

Price and the Road Commission be eer and the rights of the

parties declared; and,

2) that after an interpretation and declaration of

tights, the Road Commissioner be compelled to perform his statutory

duty to audit Price’s claim for the extra work allegedly performed.

Appellant Price subsequently asked leave of court to become ~

a cross-claimant and such petition was granted.

On-May 21, 1964, the Ciccuit Court of Kanawha County entered

its final order sustaining appellees’ motion to dismjss appellants’

complaint and cross-claim. tt i is this judgment order from which te-

lief is sought.. :

MOTION TO DISMISS

Appellees, pursuant to Rule 16 of the Revised Rules of The |

- Supreme Court: of the United States, move that the ‘jurisdictional

°

oj

statement of appellants be dismissed on the ground that the judgment »

rest on an adequate non-federal basis; and, that the federal question

sought to be reviewed was not timely or properly taised and was not

‘ expressly passed on in the court below.

:

aif ARGUMENT

, :

It is manifestly clear that the dismissal of the complaint as to

appellant Wetherall was based on‘an adequate non-federal ground, —

that is, he was not a real party in interest as contemplated by Rule

17 (a) of the West Virginia Rules of Civil Procedure. (see appendix

A.) It is noted that the West Virginia and Federal provisions are

very similiar. The trial court correctly held that Wetherall was not

within the scope of Rule 17 (a) since:

_ **Most authorities agree that | the real party in interest is

the party who, ;

by the substantive law, possessed the right sought to be en-

forced, and not necessarily the person who will ultimately

benefit from the recovery.’’ 2 Federal Practice and Procedure,

Barron and Holtzoff, §482, page 7, et..seq. .

Rule 17 (a) of the Federal Rules of Civil — oe has been ©

construed to require that actions shall be prosecuted in the name of

the real party in interest who is the person owning, either legally or -

_ equitably, the claim upon which relief is sought, according to the

_ Substantive law of the state. Rosenfeld v. Continental Building

- Operating Co., 135 F. Suipp. 465; Capo v. C-O Two Fire Equipment

Co., 93 F. ‘Seap. 4. Rule 17 (a) ’s intent is to require that the actic

be peowecuted in the name of the party, who,by the substantive ial)

has the right sought tae enforced. Rock Drilling etc. v. Mason et

al, 217 F2 687; (cert. denied 349 U.S. 915). 3 Moore’s Federal Prac-

tice (2nd Ed.) pp. 1305-1311.

In Ison et al v. Crisp Corp., 146 W. Va. 786, the West Virginia

- court quotes with approval the following language from German

Alliance Insurance Company v. Home Water Supply Co. 226 U.S. 220:

‘«.* * * a contract is only intended for the benefit of those who .

made it.

Before a stranger can avail himself of the exceptional privilege

of suing for a breach of an agreement, to which he is not a party, he

«

s

must at least show that it was intended for his direct. benefit."

(Emphasis supplied):

Appellant Wetherall sought the construction of a contract to

which he was not a party. The decision of the trial court, found as

_ Appendix A to Appellants’ Jurisdictional Statement, shows that more

than a month elapsed between the date of the contract between Price

and Appellees’ and the date of the ‘‘ employment contract”’ between

‘ appellants. By various stratagems and for unknown reasons, appel-

lants conspired to convince appellees’. agents that Price was ac-

tually the party performing the work. The contract performance bond _

listed Price as the principal and one ‘wonders whether Wetherall

would have come forward so quickly had Price been sued on his

bend. The facts are plain that Wetherall was not a,party to the con

tract and, that if he has any cause of action, it is against Piice,

. : —.

‘The judgment of the Circuit Court, of Kanawha County also

rests on an adequate non-federal ground in dismissing Price's ctoss-

claim since the court did not preclude Price from any relief at all,

-but merely told him that he was proceeding in the wrong manner.

Since there is no doubt that.a proceeding. in mandamus would only

lie where there .is involved the performance of a plain legal duty,

not involving the performance by public officials of discretion or

judgment, Draper v. Anderson, 102 W.Va. -633, it becomes evident

that Price should have resorted to the claims procedure established

.-in the State of West Virginia. Chapter 14, Article 2 of the Code of

West Virginia (Michie) states:

«.‘‘The purpose of this article is to ‘provide a simple and ex-

peditious. method for the consideration of claims against the state

that because of the provisions of section thirty-five, article six of

the constitution of the state, and of statutory restrictions, inhibitions

a)

or limitations, cannot be determined in a court of law of equity; and.

Priot to 1953, these matters came under the State Court of

Claims, but now they are administered by the Attorney General, who,

like the Court of Claims, ‘‘ * * * is hereby authorized to act as a

special instrumentality of the legislature for the purpose of consider- .

ing claims against the state, which because of the provisions of

section thirty-five, article six of the constitution of the state,

* * * "” cannot be heard -in a court of law * * *.” Code 14-2-3.

‘to provide for proceedings in which the state has a special interest.” |

(Section 35, Article VI is the governmental immunity from suit pro-

‘> vision. )

—_

—*

Code. 14-2-5 provides:

‘*The jurisdiction of the attorney general shall not extend to |

Code 14-2-4 confers the. Attorney General’s jurisdiction:

“©The juri§diction of the attorney general, under the provisions

"of this article, except for the claims excluded below, shall extend»

to the following matters:

‘<], Claims and demands, liquidated at unliquidated, ex

centractu and ex delicto, against the state or any of its agencies,

which the state as a sovereign commonwealth should in equity

“and good conscience discharge and pay. .

‘contractu and ex-delicto, which may be asserted in the nature of

set-off or counterclaim on the part of the state or any of its

agencies.

‘3. The legal or equitable status, or bie, of any claim

referred to the attorney general by the head of a state agency for

advisory determination. °

-

any claim:

‘*]. For loss, damage, or destruction of property or for in-

“jury or death incurred by a member of the militia o1 national guard

when in the service of the state.

‘*2. For injury to or death of an inmate of a state -penal

institution.

‘*3, Arising out of the care or treatment of a persgn in a.

state institution.

-.: “"@,’ For a disability or death er. under chapter eal

three of this Code.

€€5. For unemployment compensation under chapter coemty-

one-a of this Code. ores

**6. For relief or. public assistance sda chapter nine of

, this Code.

‘7. With respect to which a proceeding may be maintained

by or on behalf of the claimant in the courts of the state.’’

There is nothing in the record to show that Price attempted to |

_ avail himself ot the easily accessible claims procedure.”

Appellant Price enjoyed the: choice of another course of action

as well in that, since he complains that his property. has been taken

without due process, he could have instituted proceedings to have

i ‘*2 Claims and demands.. liquidated. and unliquidated, ex-

the Road Commissioner condemn his property by eminent domain.

Article III, Section 9 of the Constitution of West Virginia States,

in part,:

a ‘* Private. property shall not be taken or damaged for public

use without just compensation.”’ :

Appellees admit that the coricept of Eminent Deusla as it pertains

to property other than real property or interests therein is not as well

_ known as the realty aspect. It must be noted, however, that the con-

- cept is-not unknown in several jurisdictions.

Speaking of the Federal Constitutional provision that private property”

shall not be taken for public use without yon conpaneetion, ‘it has

- been said:

** The Constitutional provision is addressed to every sort of

interest the citizen may possess.” '

U.S. v. General Motors, 323 U.S. 373; U.S. -v. Certain Lands, etc,

220 F. Supp. 696.

In the case of Graham v. ‘City of Duncan, 354 P2d 458, the

syllabus by the Oklahoma court states:

‘* The term ‘ pfoperty’ as used in the Oklahoma constitution. .

regarding the taking of private property for public use for which

just compensation must be paid includes not. only real estate

held in fee, but also easement; personal property and -every .

valuable interest which can be andeyel and recggnized as proper-

ty.”

- _ The case of Lynch v. U.S. » 292 U.S. 571, has held that < a valid

contract was property.

It is believed that Price — have, and still can, avail him-

self of the remedy of mandamus; not a mandamus as envisioned in

Draper (supra) but rather a anndamne to corhpel the State Road Com-

missioner to institute eminent domain proceedings against his -

‘ property.’ A full hearing on the facts is assured and the discretion °

of the Commissioner is not forced. The following cases state that

' such a mandamus action will be as pertaining to real estate. State

v. Graney, 143, W.Va. 643; Riggs v. State Road Commissioner, 120

W.Va. 298; Hardy v. Simpson, 118 W.Va. 440; Childers v. State Road

Commissioner, 124 W.Va. 233.

Ill

It is evident from the tecord, and from appellants’ jurisdictional |

statement: that the issue of the repugnance of Section 35, Article VI

xu

~

of the West Virginia Constitution to any provisions of the Federal

‘Constitution was not raised in a timely fashion.

_ Section 1257 (2), Title 28, United Statés Code, relied upon by

Appellants for their jurisdiction before this Court, requires that the

repugnance be raised by timely insistence in the state court. In _

Raley v. State of Ohio, 360 U.S. 423, this Court stated :

BHeD ‘Ft is essential to our jurisdiction on appeal . . . .. that

there be an explicit and timely insistence In the state courts that

a ner statute, as applied, is repuguant to the Federal Constitu-

tion.’ w

_ In Slagle v. Ohio, 366 U.S. 259, it is held that appellants must

show that a ‘‘timely’’ insistance was made in the stata courts and

that a state statute as applied is repugnant to the Federal constitu-

tion. Otherwise, an appeal will be dismissed.. ~

“An examination of the complaint originally filed by Wetherall, .

and later ratified by cross-claimant*Price, fails to disclose any

mention of the alleged taking without due process of law. (See

Appendix G and Appendix H in Appellants Jurisdictional Statement)

The opinion of court below, reproduced as Appendix A in Appellants’

Jurisdictional Statement, makes no specific or re mention. of the

‘issue of due process: 9

Subsequently, appellants procured an vail of the: trial court

stating that the

mo *€ application of section 35, Article VI of the Constitution

of West Virginia,to this case would deprive (appellants) of their

‘property without due process of law contrary to section 1 of the

14th Amendment to the Federal Constitution.”’

It will be noted (Appendix F, Appellants’ Jurisdictional State-.

ment) that Appellees strenuously objected and excepted to this on’

the grounds that the: assertign was not shown on the record. This

_ subsequent court order, which was not secured until June of 1965, is

the first instance wherein the Federal questions are raised.

CONCLUSION

-As noted in appellant’s jurisdictional statement at page 12,

this case is.similiar in many respects to Appeal No. 144, October,

1965, term of this Court. It cannot be too strongly urged that this

Court should not take jurisdiction of this case for the reasons as

set out herein. It is believed that appellants are not within the pur-

view of 28 use — and it is ny submitted that their ju-

s

eE

risdictional statement should be disnissed.

September 2, 1965'

é .

- * , C. DONALD ROBERTSON

: Attorney General

State of West Virginia

Charleston, West Virginia

PHILIP J. GRAZIANI

Deputy Attorney General

-- State of West Virginia .

Charleston, West ——

° C. ROBERT SARVER

; Assistant Attorney General

. State of Wést Virginia -

Charleston, West Virginia <=

- APPENDIX A*

‘ Rule 17..

~ _, Parties Plaintiff and Defendant; Capacity

(a) Real Party in Interest. Every action shall be prosecuted in ‘the

name of the teal party in interest; but: an executor, administrator,

guardian, trustee of an express trust, or any other fiduciary, or a

party with whom or in whose name a contract has been made for the

benefit of another, or a patty authorized by law may sue in his own.

name without joining with him the party for whose benefit the action-

is brought; and in subrogation and similar cases, the court shall

apply this subdivision as will promote justice. When a law of-the -:

State so provides, an action for the use or benefit of another shall

be .brought in the name of the state or any political subdivision

thereof; -