Opposition Brief — R. C. Wetherall, Jr. v. State Road Commission of West Virginia

“PAG E

Office-Supreme Court, U.S.

FILED

Lis rLAtity SEP 18 1965

ECUISR oasn = CO

URT US J JOHN. F. DAVIS, CLERK

. No. 428 ti cate

In THE

| Supreme Court of the United States

. October —_ 1965

e

R, C. WerHeratt, Jz. anp Pau Price

| . Appellants

| v. . ‘

- Tue Strate Roap Commission or West Vinornia, a Corpora-

| ‘TION, AND Burt A. Sawyers, AS Starz Roap ComMyssionEr,

_ Appellees

On APPEAL FROM THE Crecuit Court or KANAWHA County,

ee WEstT Virornta

APPELLANTS’ BRIEF IN OPPOSITION TO

APPELLEES’ MOTION TO DISMISS

FOR LACK OF JURISDICTION

Pa

CaRNEY M. Layne

638 Fifth Avenue |

~ Huntington, West Virginia

CHartes W. YEaGEr ¢

608 Kanawha Valley Building

Charleston, West Virginia

James W. Sr. CLam

523 Seventh Street

Huntington, West Virginia

Attorneys for Appellants

ee EEE

JARRETT PRINTING COMPANY, CHARLESTON, UW. VA. esc tee

BLANK |

PAGE

INDEX"

ee 4 Page

‘STATEMENT OF THE CASE + __--.-7---------- 1

“ARGUMENT -:__-.---------- PER RR I ENE

I. APPELLEES’ ASSIGNED GROUNDS FOR DIS-

MISSAL ARE -WITHOUT MERIT AND ARE

REFUTED BY THE RECORD se eidcalamnciiole ies Dies eontae 3

‘1. The J udgment As To Appellant Wetherall ines |

Not: Rest On Any Adequate Non-Federal Basis,

And This Contention Of Appellees Has No

Application to, Appellant Price _- db jemapeicaieal one 3 -

2. The Federal Questions Were’. Timely And

Properly Raised — Were Passed On By The

BS oreo acdieenk cheatin eee )

II. APPELLEES’ SUGGESTIONS AS TO REME-

DIES ARE.WITHOUT MERIT -_----.-----_~-- 6

1. Appellees’ Suggestion Of Presentation By ‘Ap-

pellants Of Claim To The Attorney General For

Consideration And Possible Recommendation

To The State Legislature As A Moral Obliga-

tion Of The State Is Not A Judicial Remedy’

And Is Not A Substitute sien Due Process Of

Law wipe alanine od bie hie asta ca dnc a sso oa ec ea ae a a a 7

2. The Remedy By Mandamus As Appellees Sug-_

gest Pro Hac Vice On This Motion To Dismiss,

Has Already Been Ruled Upon By The-Trial

ao Court And Decided Adversely To Appellants__ 8

CONCLUSION PEEL Re Nes ot eres |

APPENDIX A Rule 19(a), Necessary J oinder of Par-

ties, West Virginia Rules of Civil Procedure__-_-_ la

*

x:

: CITATIONS

CASES: - | | Page |

Peneny. Pow, G00 -U 8. OF, 96... on nnn nnn 2

Staub v. Barley, 355 U.S, 313 ------------- OTB 3, 4

.. Sauffront vy. La Compagnie Des Sucreries, 217 U.S. 475. 4

McArthur v. Scott, 113 U.S.340; ae eae cae

Lawrence v. State Tax Commission, 286 U.S. 276 -.--_- 4,8.

Wolfe v. North Carolina, 364 U.S. 177 ----------.2---: 4

Mulan. 0. eee, Gee Us OD oon cw |

Vinson v. Home Insurance Co., 123 W.Va. 522 ----___- 4

_U. 8S. v. Dept. of Revenue of State of Illinois, 191 F,

I en dawn 4

Abie State Bank v. Bryan, 282 U.S. 765 -------_--___- 4

Enterprise Irr,- Dist. v. Farmers Mutual actin ‘Co., 243

EY aL ane tebe ida muig it dnl owen 4

Raley v. State of Ohio, 360 U.S. 423 _.-.-.-----__-__-- 5

Slagle v..Ohio, 366 U.S. 259 ........................_- 5

Land v. Dollar, 330 U.S. 731, 738 _------------------. 8

FEDERAL CONSTITUTIONAL PROVISION:

Section 1, Fourteenth Amendment _------------.--. 6

STATE CONSTITUTIONAL PROVISION:

Section 35, Article VI, Constitution of

BEE WIE dcindciinghicnnasime Re Ane ee 2, 6,9

STATE STATUTES:

Code of West Virginia, 1931, As Amended:

Chapter 14, Article 2, as amended “by 1953

_- Acts, Regular Session, Chapter 18, p. ‘109____-_-_- fe

Chapter 17, Article 2A, Section 8(5) _--_--________ (10.

' Chapter 17, Article 4, Section’5 ____- iN cilsatatilaatea 10

STATE RULES OF CIVIL PROCEDURE: .

I ai et id wins sw gine ebiehdeccejee a

-Rule’19(a) —----- erin saininctainie bonds Atkin anencenme: ©

Se EE RE Rr a Eg 9

MISCELLANEOUS: iia

2 Federal Practice and Procedure, Barron & Holtzoff,

Minin na anode dnnaedianegenn ad 4

No. 428

In THE

Supreme Court of the United States

October Term, 1965

R. C. WETHERALL, Jr. AND Paut PRIcE , ,

Appellants,

v.

Tue Strate Roap Commission oF West Vircinta, A CoRPORA-

TION, AND Bur A. Sawyers, as State Roap Closemsaroumn,

Appellees

”

On APPEAL FROM THE Circuir Court or KanawnHa County,

West Vircinia

———

APPELLANTS’ BRIEF IN OPPOSITION TO -

APPELLEES’ MOTION TO DISMISS |

FOR LACK. OF JURISDICTION.

STATEMENT OF THE CASE ©

Appellees, in both the statement of the case and in the

argument contained in their motion to dismiss, have

made statements. concerning the employment agreement.

between Appellants Wetherall and Price which are false,

misleading and wholly beyond the record of the case. They

falsely and derogatorily characterize the agreément as

‘‘clandestine’’ and the transaction as a ‘‘subterfuge’’ and

a ‘‘disguise’’; they state that by ‘‘various strategems’’ Ap-

pellants “‘conspired”’ ete.; they falsely denominate the con-

struction of the dam as ‘‘oxtra work’’. (Motion to Dismiss, -

9°

pp. 1,3) These statements are unwarranted on this appeal,

and serve only to confuse the grave issues before this Court.

The employment agreement by Appetlant Price engaging

Appellant Wetherall to supervise the project -was a legiti-

mate agreement and that Appellant Wetherall wax super-

visor on the project’ was well known to all of. Appellees’

agents concerned therewith. Their statement that the dam

construction was ‘‘extra work”’ is patently false as appears

from the dam and roadway contract and the part thereof

concerned with huilding the dam and entitled ‘‘Technical

Specifications, Castleman Run Lake No. 1’’ (Jurisdictional

Statement, pp. 9, 10; Appendix. I thereto, p. 32a).

To briefly restate the case, the complaint shows, and for

. jurisdictional purposes here as well as on Motion’ to Dismiss

in the Trial Court, it must be taken as true, Ickes v. Fox,

300 U.S. 82, 96, that by arbitrary actioff of the State Road

Commissioner under color of office and without authority,

the Road Commissioner refused to abide by the patent

terms of the contract as to payment for the dam construc-

tion; that after the completion and acceptance of the dam,

-he deducted the payments already made therefor by monthly

estimate fromm other moniés sti# acknowledgedly due the

‘contractor for roadway construction, and refused to audit

the claim for payment of $20,847.75 representing Appel-

lants’ work and materials incorporated into a public dam.

This is the core of the action.

Appellants” complaint was for declaratory judgment to

have the Court interpret the contract and establish Appel-

lants’ rights, and sequentially to enforce them by compelling

the Road Commissioner to perform his statutory duty.

Appellees met Appellants’ charges with a Motion to Dis-

miss on the ground that the proceeding was an action

-against the State of West Virginia and prohibited by Sec-

tion 35, Article VI of the State Constitution. As to Wether-

all it assigned the further ground that-he was not a party

_ tothe contract With Appellees and had no standing in Court.

‘

4

3

Both Appellants were turned out. of the State Courts

without any interpretation of the contract, which was solely —

@ question of.law. We note that in Appeal No. 144, Howard

Price d/b/a ete. v. State Road Commission et als now

pending in this court, in similar proceeding the Appellant:

. therein was turned out of Court on the ground there existed

a controversy of fact.

‘ARGUMENT

ree ee

APPELLEES’. ASSIGNED GROUNDS FOR DISMISSAL ARE _

WITHOUT. MERIT AND ARE REFUTED BY THE RECORD

The grounds assigned by Appellees in. support of their

Motion to Dismiss are: (1) That the judgment rests on an

adequate non-federal basis; and (2) That the federal ques-

tions sought to be veviewed were not timely or properly .

raised, and were not expressly passed on.

1. The Judgment As To Appellant _ Wetherall Does Not Rest

On Any Adequate Non-Federal Basis, And This Contention.

Of Appellees Has No Application To Appellant Price

Appellees allege as the basis. for this first ground that

Appellant Wetherall, not being a party to the contract with «°

Appellees, was dismissed because he was not a ‘‘real party ~

in interést’’ under Rule 17(a) of the State Rules of Civil

Procedure and not a proper party plaintiff. The Trial

Court in its opinion so held. Whether this ground is an

, adequate non-féderal ground is a question of feder al law,

ant this Court is not concluded by the view taken by the

state court. Staub v. Bazley, 355 U.S. 313. Appellant

Wetherall instituted the suit as a plaintiff because Appel-

lant Price, the party contracting with Appellees, had there-

tofore refused to institute suit. Appellant Price who was

made a defendant, then asked to be made a.co- party plaintiff

and also filed a cross bill seeking the exact, same relief. as

sought by Appellant Wetherall. The situation of the parties

~

v

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is within the principle enunciated. in Sauffroi . La Com-

pagnie Des Sucreries, 217 U.S. 475, and McArthur v. Scott, .

113 U.S. 340, 386, and in view thereof the non-federak

ground was without any fair or substantial gupport. Staub

v. Baxley, 355 U.S. 313; Lawrence v. State Tax Commission,

286 U.S. 276; Wolfe v. North Carolina, 364 U.S. 1775,

N.A.A.C.P.v. Alabama, 357 U.S. 449.. The procedure fol-

lowed by Appellants in the trial court is within the principle

of the only known West Virginia decision on the subject.

Vinson v. Home Insurance Co., 123 W.Va. 522 (1941). It

conforms to the principle set forth in 2 Federal Practice

and Procedure, Barron & Holtzoff, Sec. 482 » p, 6. It is

sanctioned by Rule 19(a). of the West. Virginia Rules of

| Ciyil Procedure (Appendix Al. It is four square with. U.S.

v. Dept. of Revenue of State of Minos, 191 F. Supp..723.

Further, Appellant Wetherall’s complaint alleges, and

on Motion to Dismiss it must be taken as true, that he su-.

pervised the dam work, and that ‘the amount of his com-

pensation was tied directly to that amount which was to be

received by Appellant Price from Appellees. Accordingly,

the work which was incorporated in the public dam and-

was being taken without compensation, was, to the extent

of 90%, Appellant Wetherall’s property, whether he.was

a ‘contracting party or not. After an objection on federal

grounds is raised, the jurisdiction of this Court is plain if

the non-federal ground is not of sufficient breadth to sustain

the judgment without any decision on the federal ground.

Abie State Bank v. Bryan, 282 U.S. 765, Enterprise Irr.

Dist. v. Farmers Mutual Canal Co., 243 U.S: 157. It is ap-

parent the judgment also required decision on the federal

ground, and accordingly even as to Appellant Wetherall

did require a decision on the federal ground,

Appellees’ contention on this ground has no application

whan to the Appellant Price, who was a party to the

contract and it accordingly cannot and does not, purport to

affect the jurisdiction of the appeal as to Appellant Price.

a’

4) |

¢ ;

2. The Federal Questions Were Timely And Properly Raised —

And Were Passed On By The Trial Court

‘Appellees’ second ground is refuted by the record. On

the Motion to Dismiss in the ‘Trial Court, no responsive

pleading was allowed under the State Rules of Civil Pro-

cedure. The federal questions Were not evoked until the

filing of Appellees’ Motion 'to Dismiss and were raised by

Appellants in their argument in. opposition thereto (Juris-

-dictional Statement, p. 7; Appendix F thereto, Order Certi- °

fying Existence of Federal Questions, p. 19a). The time-

liness of the raising of ‘the federal questions and its insist-

— ance was fully in accord with the requirements of Raley v

‘State of Ohio, 360 U.S. 423, and Slagle v. Ohio, aie U.S, 259

cited by Appellees. ct

The raising of the federal questions is noted in:

(1)' The final order of the Trial Court entered May 21,

1964, granting Appellees’ Motion to Dismiss. (Jurisdic-

tional Statement, p. 8; Appendix D thereto, p. 1a). ’ This

was the first instrument to become part of the record fol-

lowing the argument on the niotion, and under the Rules

of Civil Procedure, the earliest opportunity at which Ap-

pellants could have noted on the record the raising of the

federal questions. | ‘Se

(2) The Assignment ‘of Errors contained in Appellants’

Petition to the Supreme Court of Appeals of West Virginia.

(Jurisdictional Statement, p. 8; Record, p. 28).

. rel ae ,

(3) The Trial Court’s Order Certifying Existence of

_ Federal Questions (Jurisdictional Statement, pp. 8, 9; Ap-

— F thereto, p. 19a), wherein the Trial Court noted:

. that in arguments made in this Court on behalf

of the plaintiff and on behalf: of the cross-claimant,

upon the motion to dismiss by the defendants, the

State Road Commission of West Vir ginia, a corpora-

tion, and’ Burl A. Sawyers, State Road Commis-

sioner, it was inststed and relied upon by said plain-.

»

: ea *

tiff and cross-claimamt, that the application of Sec-

tion 35, Article VI of the Constitution of West

Virginia, to this case would deprive plaintiff and

cross-claimant of their property without due procéss

of law contrary to Section 1 of the Fourteenth

Amendment to the Federal Constitution -..’’ —

supplied)

The passing upon sach federal questions by the Trial

Court is evidenced by:

(1) The Trial Court? s flit Order granting Appellees’ ;

: Motion to Dismiss; and

(2) Its Order Certifying the Evidence of Federal Ques-

tious, all as referred to above.

Appellees complain (Motion to Dismiss, p. 6) that Appel-

lants’ complaint contains no mention of the federal ques-

tions. Manifestly not, for it was only upon ‘the filing of

Appellees’, Motion to Dismiss asking the applicgtion of

Seetion 35, Article VI of the State Constitution “and’ con-

tending the proceeding was an action against the State of

West Virginia, that invoked the federal questions. .

Wo submit Appellees’ assignment of this supposed

‘graqnd for dismissal of this appeal is conclusively refuted

by the ‘record,

-

II.

APPELLEES” SUGGESTIONS ‘AS TO REMEDIES ARE

WITHOUT MERIT —

In their Motion to Dismiss (pp. 3, 4, 5), Appellees made

the same two contentions as were made by them in their

Motion to Dismiss in Appeal No. 144, October Term, 1965,

styled Howard Price dba Howard Price and Company v.

the State Road Commission, et als, now pending before this

Court. Appellees suggest that: (1) Appellants follow the

procedure provided by state statute for the presentation

- Ps

i

before the State Attorney General, of a claim. against the

State as a mioral obligation of the State; and (2) That

_ Appellants might institute a mandamus to com pel Appellees

to condemn their property,,as incorporated in the public

dam, under the eminent domain statutes.”

- i. Appellees’ Suggestion Of Wesiamiiticn By Appellants Of

' (Claim To The Attorney General For Consideration And

Possible Recommendation To The State Legislature As A .

Moral Obligation Of The State Is Not A Judicial Remedy

And Is Not A Substitute For Due Process Of Law =~

It should be noted at the outset that the statute cited

(Chapter 14, Article 2, Code of West Virginia, 1931, as

Amended by Act of the West Virginia Legislature, Regular

Session 1953, Chapter 18; p..109; Michie’s West Virginia

Code of 1961, Serial Sections 1143 et seq., p. 705) -relating’

to claim procedure before the Attorney General expressly

excludes any claim:

“7, With respect to which a proceeding “may be

maintained by or on behalf of the claimant in‘the -

Courts of the State’’. ’

Thus: all other considerations aside, it is apparent that

Appellees’ suggestion begs fhe question as to whether Ap-

pellants should bé provided a judicial forum. in order to

enforce their rights, for by the very terms of the statute,

the procedure cannot be availed of if a judicial remedy is

proper. We further note that Appellees’ subsequent argu-

ment that a mandamus would lie, is wholly inconsistent with

this argument of the availability of the claims procedure.

This statute provides for the presentation of claims to

the State Attorney General, who-appears here as counsel

for Appellees, to consider and-hear evidence, if need be, to

the end, in his discretion, he may recommend tothe Legisla-

- ture that a claim be recognized as a moral obligation of the

State, and for which the Legislature may, in its discretion,

mako some-appropriation for its satisfaction.

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of

=

It has been held insofar as federal officials are concerned,

that in the case of abuse of-power of office, a claimant will

“not be relegated to a Court of Claims. Land v. Dollar, 330

U.S. 731,:738. The complaint herein shows that the Road:

‘Commissioner, after honoring the patent terms of the con-

‘tract and paying for ine dam construction on the monthly

estimates, upon the completion and acceptance of the work,

reversed his position, ignored the. contract, and arbitrarily

deducted the monies paid for the dam construction from

monies acknowledgedly still due the contractor for roadway.

construction, and refused to pay-for building the dam. (We

note that the Road’ Commissioner did this after having

invoiced the Conservation Commission for the cost. of the

dam and after havi ing received from the Conservation Com-

missioner the monies to be paid to the contractor for the

dam construction.)

“What Appellzes are in essence suggesting is that Appel-

lants abandon the judicial forum and submit the protection

of their constitutional rights to the whim and caprice of the

politicolarena. This is no remedy at all. A recommendation

by the Attorney General in his discretion to be made or

denied, for a legislative gratuity, in the Legislature’s dis- .

cretion,-to be given or withheld, is not due process of law

and not a substitute for a court of justice.

‘The constitution which guarantees Appellants’ rights,

likewise insures them the privilege of having those rights

' judicially declared and protected. Lawrence v. State Tax

Commission, — U. S. 276.

o

2. The lietiie By Mandamus As iiieitiins Suggest Pro Hac

Vice On This Motion To Dismiss, Has Already Been Ruled

Upon By The Trial Court And een: _— To

Appellants

‘But for the State’ s asserted immunity, Kionetiekis® de-

claratory judgment proceeding was an appropriate remedy

encampassing every procedural remedy available to Appel-

ty

» 9

* lants. Rule 57 of the West Virginia Rules of Civil Pro- ©

cedure, entitled ‘‘Declaratory Judgments”’ (Jurisdictional

Statement, ‘Appendix C, p. 10a), provides that ‘‘the exist-

ence of another adequate remedy does not preclude a judg-

' ment for declaratory relief in cases where it is appropri- .

ate’’. Appellees’ Motion to Dismiss in the Trial ourt was

not grounded on choice or appropriateness of remedy, but

solely onthe Trial Court’s-lack of jurisdiction to afford any

remedy to Appellants. Appellees’ statement in their motion

herein (p. 3). that ‘‘<the court did not preclude Appellant

Price from any relief but merely told him he was proceeding

in‘a wrong manner’’, is completely erroneous. The.basis of -

the Trial Court’s decision does not concern choice of reme- |

dies, but concerns whether any remedy is available to Ap-

pellants.as agarnst Appellees? interposition of the State’s

Constitutional immunity. (Jurisdictional Statement, Ap-

pendix A, Letter Opinion of April 13, 1964; p. la). The

Trial Court dismissed the proceeding with prejudice.

(Jurisdictional Statement, Appendix D thereto, Final

Order, p. lla). By the Trial Court’s application of the im-

munity provision, Appellants can have no remedy whatso-

ever. .

The Trial Court’s opinion in declining to afford the de-

claratory remedy and interpret the contract, held it subject

to the ‘‘stringent prerequisites’’ for a writ of mandamus.’

(Jurisdictional Statement, Appendix A, Letter Opinion of

April 13, 1964, p. 4a). Having nudertalen to consider’ it as»

a mandamus, it then held that mandamus would not lie

because under the archaic concept of mandamus prevailing

in this State, Appellants could not show a clear legal right

(Jurisdictional Statement, Appendix A, Letter Opinion of

April 13, 1964, p. 6a), the very thing Appellants sought to

establish on a simple question of law by an interpretation

of the contract under the declaratory remedy procedure.

‘Phe suggestion of mandamus by Appellees is konclusively

. ¢6ontradicted by the Trial Court’s own opinion and decision

4

10

that mandamus would not lie Jurisdictional Statement,

p. 15; Appendix A thereto, Letter Opidion of April 13,

1564, p. 6a). y

For the first time, and on appeal in this Court, Appellees

now suggest that Appellants should institute proceedings

to require the Road Commissioner to institute eminent

domain proceedings.

The state statutes conferring the power of eminent do-

“main upon the State Road Commissionér expressly pertain

only to real estate. (Chapter 17, Article 2A; Section 8(5),

and Article 4, Section 5, Code of West Virginia, 1931, as.

Amended; same, Michie’s West Virginia -Code of 1961,.

Serial Sections 1448(8)(5) and 146; respectively). These

statutes relating to eminent domain and the procedure

therefor, are clearly tailored for determining the value of

interest in land and not fora situation such as is presented

by this ease which involves the simple interpretation of a

contract.

All of the decisions, both state and federal, relied upon by

Appellees (Motion to Dismiss, p. 5) pertain to the condem-

nation of real estate, and appurtenances thereto. There is

no West Virginia authority, statutory or otherwise, which

supports Appellees’ suggestion and the eminent domain

statutes are to the contrary. — .

If as the Trial Court held, Appellants did not have a clear -

legal right for mandamus, it is immaterial whether the pur-

pose of the mandamus--was to compel the Road Commis- -

sioner to audit the claim and perform his statutory. duty,

orto institute condemnation proceedings under the eminent

domain statutes; for such right in either case would have

its genesis in the same facts of the case.

The inadequacy and inappropriateness of the enlinaet

domain proceeding to afford relief to Appellants i is obvious.

But for the interposition and application of the constitu-

~ tional immunity provision Appellants had a completely

« ss - \ .

Lay

11

adequate remedy in the declaratory procedure which, was

refused them, thereby depriving them of the due process

of law. | Pie

—— CONCLUSION |

Probable jurisdiction should be noted. |

Respectfully submitted, .

_ Carney M. Layne

°638 Fifth Avenue

Huntington, West Virginia

Cuartes W. Yeacer ©

608: Kanawha Valley Building

Charleston, West Virginia .

_ James W. Sr. ‘Ciam

523 Seventh Street

ear’ Huntington, West Virginia

September 13, 1965. erik

rd

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:

APPENDIX A —

WEST VIRGINIA RULES OF CIVIL PROCEDURE

FOR TRIAL COURTS OF RECORD

- Adopted and promulgated by order\ of the Supreme

' Court of Appeals of West Virginia enteréd October 13,

. 1959, effective ‘on and after ong 1, 1960, and-as contained

in 144 W. Va. .. Reports, p. xeviil.

* * *

RULE 19.

NECESSARY JOINDER OF PARTIES on

(a) Necessary Joinder. Subject to. the provisions of

Rule 23 and of subdivision (b) of this rule, persons having

a joint interest shall be made parties and be joined on the

same side as plaintiffs or defendants. When a person who

should join as a plaintiff refuses to do so, he may be made

a defendant or, in proper cases, an iinareitsiel plaintiff.

(Italics supplied).

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pica ae

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