(dissenting).
I dissent. This case is the sequel to Hjelle v. Sornsin Construction Company, 173 N.W.2d 431 (N.D.1969), in which the majority of this court (the writer dissenting) held that under the statutes providing for compulsory arbitration of a contract for construction or repair of highways entered into by the highway commissioner, a subcontractor may arbitrate its claims against the highway commissioner and the prime contractor but these claims must be asserted in separate proceedings. After the rendition of our opinion the subcontractor elected to assert its claim for arbitration against the highway commissioner and received an award for damages in the amount of $186,660.69 against the highway commissioner in a two-to-one decision by the three arbitrators. It is clear that a majority of the arbitrators made their decision not upon the subcontract but upon a conclusion, based upon their belief, that the highway commissioner owed a duty to the subcontractor to have required the prime contractor to proof test the subgrade to be graveled so as to insure a minimum contact pressure of 90 p. s. i. This was a legal conclusion based not upon the subcontractor’s contract but upon the arbitrators’ interpretation of the prime contractor’s contract with the highway commissioner, and resulted in a finding of breach for which the prime contractor could have made no claim against the highway commissioner if it had not subcontracted the spreading of gravel upon the subgrade but had carried out this portion of the work itself.
It is therefore my opinion that the majority of the arbitrators have exceeded their powers in that they have premised their award upon an interpretation of the wrong contract and against a person who is not a party to the subcontract. Section 24-02-31, N.D.C.C., limits the jurisdiction of the arbitrators. It states, in part, as follows:
“The arbitrators shall determine all controversies between the parties growing out of the contract * * * ”
*239The “contract” in this case is the subcontract and the parties are the subcontractor and the prime contractor.
The subcontractor had no contractual relationship with the highway commissioner and it is my opinion that any claims the subcontractor might have for extra costs because of its claim that the prime contractor had not compacted the subgrade according to specifications does not create a claim upon which the subcontractor may seek damages from the State Highway Commissioner. The board of arbitrators, in order to make its determination, had no power to determine the obligations or duties of the prime contractor to the highway commissioner or the highway commissioner’s obligation or duties to the prime contractor. It is therefore my opinion that the district court erred when it denied the highway commissioner’s motion to vacate the award on the ground that the arbitrators exceeded their powers, which is provided as a ground for the vacation of an award under Section 32-29-08(4), N.D.C. C.