Brief for the Respondent in Opposition — Baldwin-Lima-Hamilton Corp. v. Aetna Casualty & Surety Co.

SUBJECT INDEX

PAGE

STATEMENT OF THE CASE ................... 1

CEE ALOE NDR ee TN SEO 2

Point I. Review on writ of certiorari not matter

of right, but sound judicial discretion. ........ 2

Point II. This Court has no power to revise

judgments of state courts on questions of state

DE ccnihibuhdcenwdkay ibeddehiers badicoss 3

Point III. This Court will not review decision of

state court, unless federal question was pre-

sented and decision of federal question was nec-

essary to its jurisdiction of case, and it was

EY CE Wi dwecctceenenunbacuuaockos a

Point IV. This Court will not take jurisdiction to

review federal question not properly raised in

trial court, and pursued in highest state court

as provided by state procedure. .............. 5

Point V. The question involved in ease is moot,

and this Court will not review moot questions.. 6

Point VI. Petitioner never asked for hearing be-

fore Attorney General to have certified date of

settlement changed, and petitioner did not ex-

haust its administrative remedies. ........... 7

Point VII. No Fourteenth Amendment require-

ment for notice and hearing in determining final

settlement of contract, and certified date of final

settlement was obtained in statutory manner.. 7

ME, oi anode GsWecdkcvaxceuceceseocas 8

TABLE OF CASES CITED

PAGE

Allen v. Arguimbau, 198 U.S. 149, 25 S. Ct. 622, 49

L, Bed. 990 (1905). . 02... ecw cree ccccccccccccees 4

Amalgamated Food Employees v. Logan Valley Plaza,

391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603

PES Side besvsdneccecensseneseecensssn sees. 6

Beck v. Washington, 369 U.S. 541, 82 S. Ct. 955, 8 L.

| & ) fy errr rrrr rrr 5

Berry v. Davis, 242 U.S. 468, 37 S. Ct. 208, 61 L. Ed.

oS ry Serr rrrrrr rr tr rrr rrr 6

Doremus v. Board of Education, 342 U.S. 429, 728. Ct.

394, 96 L. Ed. 475 (1952). .......-.eeeeeeeeeeee 6

Durley v. Mayo, 351 U.S. 277, 76S. Ct. 806, 100 L. Ed.

1178 (1956), rhg. den., 352 U.S. 859, 77 S. Ct. 22,

SE caliber cctevensieesededensnss 5

Hamblin v. Western Land Co., 147 U.S. 531, 13 S. Ct.

353, 37 L. Ed. 267 (1893). .......----ee eee eeee 3

Henry v. State of Mississippi, 379 U.S. 443, 85 S. Ct.

564, 13 L. Ed. 2d 408 (1965). .......-.. eee eeeeee 4

Honeyman v. Hannan, 300 U.S. 14, 57 8. Ct. 350, 81 L.

ES Nos ictbvcseckesecesnckeveseness a

Hulbert v. Chicago, 202 U.S. 275, 26 S. Ct. 617, 50 L.

Be BD Ce ova reccwccescccvecccscesecess 5

Klinger v. State of Missouri, 13 Wall. 257, 20 L. Ed.

EE cab erawercewasenunewsenevwerensnee 4

Lynch v. New York, 293 U.S. 52, 55 8. Ct. 16, 79 L.

cs tccctupinriariekerenhouwews 4,5

Natural Milk Producers Assn. v. Sam Francisco, 317

U.S. 423, 63 S. Ct. 359, 87 L. Ed. 375 (1942). .... 6

ii

Peerless Casualty Co. v. United States, 241 F. 2d 811

(1st Cir. 1957).

Preston v. Chicago, 226 U.S. 447, 33 S. Ct. 177, 57 L.

Ed. 293 (1913). 3

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70, 75 S. Ct. 614, 99 L. Ed. 897 (1955). ........... 2,7

Scripto v. Carson, 362 U.S. 207, 80 S. Ct. 619, 4 L. Ed.

2d 660 (1960).

Thomas v. Iowa, 209 U.S. 258, 28 S. Ct. 487, 52 L. Ed.

782 (1908).

United States v. Alaska 8.8. Co., 253 U.S. 113, 40 S.

Ct. 448, 64 L. Ed. 808 (1919).

United States Fidelity and Guaranty Co. v. Hendry

Corporation, 391 F. 2d 13 (5th Cir. 1968), certio-

rari denied 393 U.S. 978, 89 S. Ct. 446, 21 L. Ed.

MEN Rideedwlabkecreseeveneeey ick ascii 7,8

United States Fidelity & Guaranty Co. v. Oklahoma,

250 U.S. 111, 39 S. Ct. 399, 63 L. Ed. 876 (1919)... 5

Wood Mowing ¢ Reaping Machine Co. v. Skinner, 139

US. 293, 11 S. Ct. 528, 35 L. Ed. 193 (1891)

STATUTES

C.G.S. § 7216 (Rev. 1949). ...................00.-. 1,7

C.G.S. §§ 49-43 (Rev. 1958)

Conn. St. 1969 P.A. 192, §§ 1, 2.

Oe Wee SUT OOD. oon ccc ccccccccnccveccocsccs. 2, 3,8

iii

Ne oad Vs cin enmiennaes ee oc 6

ory an ce cuu de buavakaee asad 6

COURT RULES

Se I a as we uvawe ld cevcxawn 5

US. Gap. Ct. Bate 19, SB UBC. ... 2 cc ccccccccccces 2

iv

1

STATEMENT OF THE CASE

Respondents accept petitioner’s statement of the case,

except for inaccuracies and omissions noted below.

The record shows that the statutory bond was given, and

that it was conditioned as required by the statute (Pet. B-2,

3, 5).

The record also shows that respondents made the ap-

plication and affidavit, and obtained the certified statement

of the date of final settlement of the contract, in strict com-

pliance with C.G.S., § 7216 (Pet. E-4-E-7).

There is no evidence in the record to justify the state-

ment that the Attorney General issued the certified state-

ment of the date of final settlement “without conducting

any investigation of the facts” (Pet. p. 5). In the absence

of evidence to the contrary, the Attorney General is pre-

sumed to have performed his statutory duty, and to have

relied upon the information furnished to him by the High-

way Department, which was the agency having the contract

in charge.

As the record clearly shows, at no time either in the

trial court or in the appeal, did petitioner present any ques-

tion that C.G.S., § 7216 was repugnant to the Constitution

of the United States.

Point I.

Wf ea HE

it : i i Hi ) Hh 4

idee ibis ay ili He

Me Wilt itt [A

il 8 ie Heras ELH,

dt i dal i i H 4H iH ull

Hi PB HATE

147 US. 531,

isd)

rat it iss

ne et

sad 32

);

Chicago, 226 US. 47, 33 8S. Ct

177, 57 L. Ed. 293 (1

eer yyy 207, 210, 80 S. Ct

619, 4 L. Ed. 2d 660 (1960);

g

=

wo

4

‘A

4.

ae

ge

13 S. Ct. 353, 37 L. Ed. 267 (

Hamblin vo. Western Land

488, 52 L. Ed.

Preston v.

aioe ai]

463

pur

:

i

i!

rf

{

i

federal question

tt

52, 4, 56 S. Ce

oe. New York, 33 US.

ii 17, 79 L. Ed. 191 (1934);

4, 18, 57 8. Ct

0. Hannan, KOU S. 1

81 L. Ed. 476 (1937).

Where the judgment of the state court might rest on

two grounds, one involving a federal question, and the other

& state ground, and if the state ground is sufficient to sus

tain the judgment, this Court will not take jurisdiction to

review that jodgment.

0,

4 “2 8

sg 4

oe

feb A

ae, Se

36 . ot

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g w2:

a fal

128 og

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igaey itn

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:

asserted a claim of due process of

for the trial court's opinion does

properly raised before the trial

be teen Bieadings (Pet. F-1, 2), it was ast

191 (1934) ;

appeal to the hig: st state court, as

. New

—~¥rr

This Court will not take jurisdiction to review a federal

qeestion which was not

court, and pursued on

provided by state procedure. Beck ». Washington, 369 US.

it Hae

HE

6

541, 549-554, 82 S. Ct. 955, 959-962, 8 L. Ed. 2d 98 (1962).

liaving raised and abandoned its Fourteenth Amendment

claim to due process, petitioner cannot now revive it.

Amalgamated Food Employees v. Logan Valley Plaza, 391

U.S. 308, 313, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968), n. 6,

as explained in Mr. Justice Harlan’s dissent, at pages 353-

336, 88 S. Ct., at pages 1616-1618.

Point V. :

The question involved in this case has become academic

United States v. Alaska 8.8. Co., 253 US. 113,

40 S. Ct. 448, 64 L. Ed. 808 (1919) ;

nyo a. a

L. 441 (1917)

neh Mh Site den 0 Gn. em

cisco, 317 U.S. 423, 63 S. Ct. 359, 87 L. Ed.

375 (1942);

Doremus v. Board of Education, 342 US. 429,

72 S. Ct. 394, 96 L. Ed. 475 (1952).

The Connecticut Statute involved in this case has been

amended to eliminate the “date of final settlement of the

contract” as starting the period of limitation for bringing

action on the bond, and to limit the time for bringing action

to one year from the date of furnishing the last of the labor

or furnishing the last of the material, by 1969 Public Act

192, §§1, 2, which amendment coincides with an amend-

ment to the Miller Act., 40 U.S.C. $§ 270b (b), 270c, in

1959.

Except for the parties to this action, there would be no

precedental value in a decision by this Court. This Court

does not sit to satisfy an academic interest in certain

issues. Nor does it sit for the benefit of particular litigants.

7

See Rice v. Sioux City Memorial Park Cemetery, 349 US.

70, 74, 75 S. Ct. 614, 99 L. Ed. 897 (1955).

Point VI.

Although there is federal precedent for the Attorney

General to alter or amend his original determination of the

date of final settlement of the contract, as the Comptroller

General did, in United States Fidelity € Guaranty Co. v.

Hendry Corporation, 391 F. 2d 13, 15 (5th Cir. 1968), cer-

tiorari denied, 393 U.S. 978, 89 S. Ct. 446, 21 L. Ed. 2d 439,

the record in this case is barren of any evidence that peti-

tioner asked for a hearing before the Attorney General, or

tried in any way to have him change his original certified

statement of the date of final settlement of the contract.

Therefore, petitioner has failed to exhaust its administra-

tive remedies, which is another reason why this Court will

not review the decision of the Supreme Court of Con-

necticut.

Point VII.

There is no Fourteenth Amendment requirement for a

hearing before the government makes up its mind what it

owes on a contract. “What in fact it is required to pay is

not in question in establishing a final settlement” (Opinion

of Supreme Court of Connecticut, Pet. C-8). Respondents

applied for, and obtained from the Attorney General, a

certified date of final settlement of the contract ex parte,

in precisely the manner contemplated by the statute, which

authorized an administrative officer to conclusively deter-

mine a specific fact, without requiring either notice or

hearing. C.G.S., § 7216, Rev. 1949, § 49-43, Rev. 1958. The

statute does not call for the exercise of any quasi-judicial

function.

In certifying the date of final settlement of the contract,

the Attorney General, by federal analogy, performed an

eT ——

cretion.

United States Pie é Guaranty Co.

pon Rg ne F. 2d 15 (5th

), certiorari denied, 393 U 978, 89

S. Ct. 446, 21 L. Ed. 439;

Peerless Casualty Co. v. United States, 241

F. 2d 811 (ist Cir. 1957).

Petitioner has failed to show more than a private dis-

pute between private parties with respect to a statutory

right of action under State law. It has not established any

grounds for review by writ of certiorari, either under

Supreme Court Rule 19, or 28 U.S.C.A., § 1257 (3), and

the petition should be denied.

Respectfully submitted,

Dowarp F. Kzere,

P.O. Box 1936,

205 Church Street,

New Haven, Connecticut 06509

Eimer W. Beastey,

880 Asylum Avenue,

Hartford, Connecticut 06105

Counsel for Respondents.

Tyizs, Cooper, Grant, Bowerman & Keere

Of Counsel

9

CERTIFICATE OF SERVICE

I, Elmer W. Beasley, counsel for The A°tna Casualty

& Surety Company, American Employers’ Insurance Com-

pany, and Employers’ Fire Insurance Company, respon-

dents herein, and a member of the Bar of the Supreme

Court of the United States, hereby certify that on the 12th

day of December, 1972, I served three copies of the fore-

going brief for respondents in opposition to the petition

for a writ of certiorari upon petitioner, by depositing

three copies of said brief in the United States mail, first

class, postage prepaid, to petitioner’s counsel, Francis J.

McNamara, Jr., Cummings & Lockwood, One Atlantic

Street, Stamford, Connecticut, 06904.

Eimer W. BEasLey,

880 Asylum Avenue,

Hartford, Connecticut 06105