Being compelled to dissent from the majority opinion, and having dissented from a like opinion on the first appeal of this case, I deem it not inappropriate at the outset to state that I am in full accord with the principle of the law of the case. However, as I think the case presented on this appeal is vitally different from the one which the majority opinion on the former appeal held was presented in that appeal, I am of the opinion that the rule of the law of the case may be at once laid aside as inapplicable.
Let us begin where we agree. On the former appeal, the majority opinion said:
"The immunity of the commonwealth as the *Page 818 sovereign from suit without legislative consent is absolute and unqualified. The State Highway Commission is an agency of the commonwealth and not a separate corporate body. * * *
"However, it does not seem to us that this case is to be brought within the rules affirmed in those cases. It is not a suit for damages or, strictly speaking, to collect a debt. It is a suit to compel the officers of the state to perform their undertaking made in behalf of the state under its direct authority. The rule that suits may not be maintained against officers or agencies who are but nominal parties where the state is the real party in interest does not apply where the suit is instituted against the agency or officer to compel performance of a duty required by statute. 25 Rawle C. L. 414. An action against state officers to compel them by mandamus or other similar process to perform official duties of a purely ministerial nature, involving no discretion as to the use of political or governmental power, is not a suit against the state and may be maintained without its consent."
While agreeing with the principles thus enunciated on the first appeal, I disagreed as to the manner of their application to the case presented, being of the opinion that the petition to which a demurrer had been sustained disclosed that the real case was not one to compel the officers of the state to perform an undertaking or ministerial duty, but in essence and in truth was a suit for damages for breach of contract or at least one to collect a debt.
On this appeal the majority opinion, as is proper, adheres to the principles laid down on the first appeal, and in this I agree with it. But again I disagree with it in the manner of their application.
When this case was returned to the lower court after our decision on the former appeal, the defendants, now appellants, reformed their answer, presenting their defenses in a pleading styled "Amended Answer to plaintiff's petition in equity as amended." To this answer, a demurrer was interposed and sustained. The defendants declining to plead further, judgment was entered in accordance with the prayer of the petition. Therefore the question presented on this appeal is, Do *Page 819 the facts alleged in the answer disclose that this is in truth a suit for damages for breach of contract or to collect a debt. If they do, the demurrer was improperly sustained, since even under the principles laid down by the majority opinion on the first appeal the city of Frankfort may not recover if the appellants can establish by proof that in reality this suit is one for damages for breach of contract or to collect a debt. To recover on the theory of the majority opinion, the case presented must be one where the contract entered into was repudiated by the highway commission and on such repudiation was performed according to its terms by the city, leaving nothing for the highway commission to do but pay the consideration. If the city did not perform the contract entered into according to its terms, but on the repudiation of it by the highway commission did the work which was the subject-matter of the contract under different conditions and terms than those provided for in the repudiated contract, then it is obvious that the suit is not one to compel the highway commission to perform a ministerial duty by paying the consideration provided for in the original contract, but is one purely for damages for breach of that contract.
Now the contract entered into between the city and the highway commission provided that the State Highway Commission should make all the surveys, plans, and specifications for improving this highway, and that the commission should have actual charge and supervision of the construction thereof. The agreement further provided that the highway commission should advertise for bids and award the contract subject to the approval of the board of council of the city of Frankfort, and that it and the city of Frankfort should pay for the road in equal proportions; the city of Frankfort providing for its part of the cost by assessing the same against the abutting property owners. It is this contract and this one only that the city could, even under the principles of law laid down in the majority opinion, perform and then call on the highway commission to pay therefor. Does the answer allege that the work done by the city was entirely different and performed under different conditions and terms from those provided for by the repudiated contract? Let us attend to a summary of the third paragraph of that amended answer. This paragraph a f t e r *Page 820 setting out that portion of the original contract to the effect that the streets to be constructed and to be thereafter maintained by the highway commission were to be constructed under surveys, plans, and specifications prepared by the highway commission and under contracts let by it, alleges that the highway commission did prepare the plans and specifications and did advertise for bids; that the bid of the Irvine Construction Company was the lowest bid for the project, but for certain reasons (not here pertinent) said bid was rejected; that, after the rejection of said bid, the city of Frankfort, by a contract with the Kentucky Traction Terminal Company, released that company, not only from any liability to pay for any part of the construction of the streets over which its tracks ran and which were to be constructed under the original contract and paid for by the State Highway Commission and the city of Frankfort in equal shares, but also from any liability to maintain that portion of such streets between its tracks which prior to such release it would have had to maintain. (I pause here to say that, while it may be true that the release of the traction company from having to pay any part of the construction of the streets may not have affected that part of the cost to be paid by the highway commission but only the city's half, yet surely the release of it from having to maintain the streets between its tracks added materially to the burden of the highway commission who under the contract between it and the city is obliged to maintain the streets constructed.) To resume — this amended answer further alleges that the city abandoned the plans and specifications prepared by the highway department, and employed by W.J. Horrigan and associates, incorporated, of Louisville, Ky., to prepare plans and specifications and to do all the engineering work in connection with said streets; that this firm did prepare plans and specifications which differed substantially from the plans and specifications theretofore prepared by the State Highway Commission, in that the new plans and specifications provided for the use of different types and standards of construction from those provided by the plans and specifications prepared by the State Highway Commission; that no part of the streets was constructed in accordance with the plans and specifications prepared by the highway commission, but was constructed of a much cheaper and less substantial type of asphalt *Page 821 construction; that some of the streets were constructed of sheet asphalt on a crushed stone base of inadequate thickness, making maintenance a costly obligation; that the streets between the tracks of the street car company were constructed of concrete which was not reinforced, thereby increasing maintenance charges; that what concrete was laid was of poor grade and poorly laid; that the city by ordinance contracted its city limits, thereby throwing out of such limits about one-third of a mile formerly in the city, and which, under the contract between the city and the highway commission, would have been paid for in equal shares by the city and the highway commission, the result of which was that the State Highway Department has to pay all the cost of constructing that third of a mile thus thrown outside the city limits. Does not this resume of the third paragraph of this amended answer demonstrate that enough facts are alleged which, if established by proof, show that the city abandoned the plans and specifications and its obligations provided for by the contract between it and the highway commission, and went out and built the streets itself of different construction and under entirely different plans and specifications from those provided for by the highway commission; that by the way it did construct the streets it materially increased the maintenance to be performed by the highway commission, and that it threw a greater cost on the highway department by contracting the city limits. How can it be argued that the amended answer of the appellant does not allege facts which, if established, show that the city is not asking a mandamus to compel the highway commission to perform its part of an unexecuted contract, but in fact and in truth is seeking to hold the State Highway Department, an arm of the government which cannot be sued for damages, for breach of that contract? About the only answer which seems to be advanced by the majority opinion is that these deviations were slight and immaterial. I controvert that statement. To say that a construction of a series of streets with a cheap type of construction, on an inadequate base, with concrete not reinforced between car tracks, all of which adds heavily to the maintenance obligation of the highway commission, a release of a traction company from having to maintain that portion of the streets between its tracks which run for a very long distance over the streets constructed, thus throwing the entire maintenance upon the highway commission, *Page 822 a thrusting of the full payment of a third of a mile of street upon the commission when it was under obligation to pay for only half, are but slight and immaterial deviations from the original contract, is, to my mind, a shutting of the eyes to the realities of the situation. I cannot agree to any such result. I believe the amended answer of the appellants, if established by proof, clearly presents a defense.
I am authorized to state that Judges Thomas and Rees concur in these views and this dissent, Judge Thomas being further of the opinion that, as the highway commission renounced the contract before the city had done anything under it, the city did not have the right to construct thereafter the streets and hold the highway commission for the payment of them.