dissenting, with whom RAPER, Justice, joins.
I must dissent from the majority decision in this case which would reverse the ruling of the district court and remand the case for further proceedings. I challenge the jurisdiction of the district court and this Court to adjudicate this matter. If jurisdiction should be present an entirely different disposition of the case is dictated by the facts arid the pertinent authorities.
In my judgment the events that apparently transpired, or are assumed to have transpired, between Rissler & McMurry Company and the Wyoming Highway Department are not within the purview of the Wyoming Administrative Procedure Act, §§ 9-4-101, et seq., W.S.1977. It appears to me that the Court treats the contacts between Rissler & McMurry Company and the Wyoming Highway Department as a contested case, although it perhaps simply is considering Rissler & McMurry Company to be a person aggrieved or adversely affected by other agency action, in order to invoke the judicial review provisions of § 9-4-114, W.S.1977 and Rule 72.1, W.R. C.P. This is done despite the fact that the majority opinion correctly describes these events in three different places as “negotiations,” “the parties negotiated,” and “settlement negotiations.”
I find nothing here to persuade me that the procedures contemplated by § 105.17 of the Wyoming Highway Department 1974 Standard Specifications for Road and Bridge Construction were anything more than simply a provision incorporated in the contract between Rissler & McMurry and the Wyoming Highway Department for the negotiation of “ * * * additional compensation * * * for work or material not clearly covered in the contract * * or that these procedures were in any way *589intended to be a formal administrative proceeding under the Wyoming Administrative Procedure Act. See Commonwealth, General State Authority v. Loffredo, 16 Pa.Cmwlth. 237, 328 A.2d 886 (1974). Indeed, the dismally informal result of these negotiations as manifested by the record presented here, is persuasive that the parties did not intend to be involved in a formal administrative proceeding or hearing. “It is clear * * * that the provisions of our Act although governing contested cases are not applicable to legislative or argumentative-type hearings, * * * Scarlett v. Town Council, Town of Jackson, Teton County, Wyo., 463 P.2d 26, 29 (1969). Since I conclude that this procedure was one structured under the contract between Rissler & McMurry Company and the Wyoming Highway Department and not a matter committed by law to the Wyoming Highway Department and for that reason not governed by the Wyoming Administrative Procedure Act, I would hold that the district court and this Court do not have jurisdiction to entertain the case for judicial review. See Pritchard v. State, Div. of Voc. Rehab., Dept. of H.S.S., Wyo., 540 P.2d 523 (1975).
In treating the matter as one involving the necessity of the filing of a claim it follows for me that this Court is recognizing an action for money damages by Rissler & McMurry Company against the State of Wyoming. I cannot find in the record any statement of such a claim. Two pleadings appear which were designed to initiate this matter in the district court. One is styled as a “Petition” which seeks judicial review of the denial of Rissler & McMurry Company’s claim by the Wyoming Highway Department. The other is styled “Notice of Appeal,” and being substantially identical in tenor to the Petition, apparently it is designed for the same purpose. Recognizing that Rule 72.1, W.R.C.P. provides that the relief available in an action for the recovery of money is available by independent action and also available under a petition for review, that approach must assume incidental jurisdiction attaching to a valid petition for review. If in some manner a claim for damages is stated in the pleadings in this record, I would not permit the district court to deal with that claim in the absence of the jurisdiction to review. In such an instance an independent suit should be required.
Turning to the issue the Court chooses to deal with, whether there has here been compliance with the claims filing statute, I take as my point of departure the statute:
“Persons having claims against the state shall exhibit the same, with the evidence in support thereof, to the auditor, to be audited, settled and allowed, within one (1) year after such claim shall accrue, and not afterward.” § 9-2-332, W.S.1977. (Emphasis supplied.)
In invoking the concept of substantial compliance with this statute this Court assumes the existence of a claim which already had accrued when it was presented to the Wyoming Highway Department. My thesis is that no claim did accrue until additional compensation was denied by the Wyoming Highway Commission which it did only by the decision which Rissler & McMurry Company sought to have reviewed in the district court. Under the clear language of our statute the claim is to be exhibited after it accrues. Since at the time of the presentation to the Wyoming Highway Department no claim had accrued such a presentation could not constitute substantial compliance with this statute.
In dealing with statutory procedures analogous to those structured by the Wyoming Highway Department 1974 Standard Specifications for Road and Bridge Construction and the contract between Rissler & McMurry Company and the Wyoming Highway Department, other courts have held that a claim does not accrue for purposes of a limitation on the time in which to file it until the action contemplated by the contractually or statutorily structured procedure has been completed. Cooke Contracting Company v. State, 55 Mich.App. 336, 222 N.W.2d 231 (1974); City of New York v. State, 40 N.Y.2d 659, 389 N.Y.S.2d 332, 357 N.E.2d 988 (1976); Edlux Construction Corp. v. State, 252 App.Div. 373, 300 N.Y.S. 509 (1937), aff’d 277 N.Y. 635, 14 N.E.2d 197 (1938); Tennessee Gas Transmission Company v. State, 32 A.D.2d 71, 299 *590N.Y.S.2d 578 (1969); Terry Contracting, Inc. v. State, 27 A.D.2d 499, 280 N.Y.S.2d 450 (1967); Long Island Lighting Company v. State, 89 Misc.2d 816, 392 N.Y.S.2d 559 (Ct.Cl.1977); East Bay Contracting Co. v. State, 59 Misc.2d 220, 298 N.Y.S.2d 337 (Ct.Cl.1969); Fehlhaber Corp. v. State, 52 Misc.2d 1073, 277 N.Y.S.2d 422 (Ct.Cl.1967); Tomasetti Const. Co. v. State, 186 Misc. 790, 59 N.Y.S.2d 863 (Ct.Cl.1946); Commonwealth, General State Authority v. Loffredo, supra; Penn-Jersey Contractors, Inc. v. Commonwealth, General State Authority, 12 Pa.Cmwlth. 203, 315 A.2d 920 (1974); Allen N. Lashner, Inc. v. Commonwealth, Department of Highways, 1 Pa.Cmwlth. 486, 275 A.2d 403 (1971).
The corollary to this rule is that an anticipatory filing of a claim which has not accrued does not constitute the filing, presentation or exhibition of a claim after it has accrued. Rissler & McMurry Company had here no claim to exhibit until the decision of the Wyoming Highway Commission. I would affirm the dismissal by the district court until such time as the record discloses an exhibition of a claim to the state auditor within one year after the decision by the Wyoming State Highway Commission on August 21, 1975. The legal concept of substantial compliance cannot be invoked unless a claim has accrued. Further, there would be need to be concerned about some trap for the unwary contractor if he is given one year after the decision of the Wyoming Highway Commission to file a claim with the auditor.
Neither can I agree that under these circumstances the purpose of the statute has been fulfilled. Among the purposes of a statute such as ours is that of affording an opportunity to arrive at a settlement of the controversy and avoid litigation by a state with its citizens. E. g., State v. Nunez, 23 Ariz.App. 462, 534 P.2d 270 (1975); Bozaich v. State, 32 Cal.App.3d 688, 108 Cal.Rptr. 392 (1973); Housing Authority of City of Newark v. Sagner, 142 N.J.Super. 332, 361 A.2d 565 (1976). This important purpose is precisely what our statute contemplates. It is problematical what action the state auditor may have taken had the statute been complied with. Under the concept adopted by the majority opinion the state official vested with authority by the legislature to audit, settle and allow the claims is deprived of the opportunity even to consider it, and the purpose of the statute remains unfulfilled.
Finally, I turn to what may well be the most significant aspect of this case. The Court has overruled, sub silentio, Utah Construction Co. v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951 (1933). In recognizing a judicial concept of substantial compliance the Court has stripped the legislature of its power to impose conditions upon the legislative waiver of sovereign immunity, and it has silently, but effectively, abolished the longstanding rule of sovereign immunity. Utah Construction Co. v. State Highway Commission, supra, holds that the failure to comply with the statute cannot be waived by the executive branch. Substantial compliance as recognized by this Court in this case simply is partial waiver by the judicial branch, under another name. It constitutes a judicial waiver of the immunity of the state from suit, and is a grave breach of the doctrine of separation of powers. If the Legislature of the State of Wyoming wishes to exercise any voice as to what conditions are to be attached to actions against the state on any grounds it had best act promptly.1
I conclude that the correct view has been set forth by the Supreme Court of South Carolina in Hazard v. South Carolina State Highway Department, 264 S.C. 386, 215 S.E.2d 438, 441 (1975), as follows:
“The Legislature has, in the statutes involved, named several conditions under which the immunity from suit is waived. Among these conditions is the requirement that a verified claim, setting forth the date and place the injury or damage occurred and the amount claimed, must be filed with the governmental agency within one hundred eighty (180) days from the date of injury.
*591“The statutes make compliance with the foregoing notice requirements a prerequisite to suit. As held in Cochran v. City of Sumter, 242 S.C. 382, 131 S.E.2d 153:
‘One seeking to avail himself of the consent of the State or a political subdivision thereof to be sued must fully comply with the prescribed terms and conditions of the statute, and the filing of a claim as required by the Act is an essential prerequisite to a right of action.’
“Since the filing of a claim is a condition precedent to the accrual of a cause of action, no vested right could be obtained by a victim of the governmental tort until the claim provisions of the statute have been complied with. There was simply no right to sue in existence until the conditions imposed: for the creation of such right had been met. There is, therefore, no merit in appellant’s argument that the statute creates immediately a vested right in victims of governmental torts.
* * * * * *
“The argument of appellant that the claim provisions serve no valid public purpose is addressed to the wrong tribunal. The determination of whether the State’s immunity from suit shall be waived and under what conditions is a matter for the Legislature to decide. We have consistently held that the authority to waive the State’s immunity from suit and the conditions, if any, to be imposed upon such waiver, rests with the legislative branch of the government.”
“It is generally held that statutes authorizing suit against the state are to be strictly construed, since they are in derogation of the state’s sovereignty.” Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 24, 177 P.2d 397, 399 (1947). In this case the Court abandons this concept and affords such a liberal construction that the statute is for all practical purposes repealed. It would seem that in every instance something will occur that can be regarded as substantial compliance.
I would affirm the district court.
. “Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.” Art. 1, § 8, Constitution of the State of Wyoming.