Madonna v. STATE, DEPARTMENT OF PUBLIC WORKS

WARNS, J. pro tem.

*

On August 2, 1955, appellant brought an action against the State of California, Department of Public Works, and Frank B. Durkee, Director of the Department of Public Works, to recover the sum of $22,400 which was withheld as penalties from the final payment due appellant for work performed under a highway construction contract. The sum was withheld in accordance with the provisions of section 1727 of the Labor Code which provides for the withholding and retaining of all amounts which have been forfeited pursuant to any stipulation in a contract for public work. By section 1775 of the Labor Code, a forfeiture of $10 is imposed for each violation of said section. Section 1774 provides in part that “the contractor to whom the contract is awarded, . . . shall pay not less than the specified prevailing rate of wages to all workmen employed in the execution of the contract.” The $22,400 was withheld at the request of the Labor Commissioner pursuant to two letters, dated June 16,1955, addressed to the Department of Public Works, which charged appellant with 2,240 violations of section 1774 of the Labor Code in the performance of the contract. Respondents made a motion to dismiss the complaint on the ground “that suit on the contract for the alleged breach was not commenced and notice given thereof within ninety (90) days after the completion of the contract and the formal acceptance of the job.” The motion was granted, and this appeal followed.

The contract in question was made and entered into between the respondent State of California and the appellant on December 22, 1954, and on May 2, 1955, an interdepartmental communication (letter) was sent from the Division of Highways to the respondent Frank B. Durkee, Director of Public Works, stating in substance that the work under the contract had been completed in accordance with the plans and specifications and that it was recommended that the contract be accepted. On May 3, 1955, this interdepartmental communication was received by the director’s office, and on the same day the recommendation of the State Highway Engineer was approved and the job was accepted. The formal acceptance of the work appears on the interdepartmental communication over the signature of A. H. Henderson, Deputy Director of the Department of Public Works, as follows: “Recommenda

[839]

tion Approved: Frank B. Durkee, Director of Public Works, By [signed] A. H. Henderson.” There followed the date “May 3, 1955.” The State Highway Engineer on May 6, 1955, by letter, informed appellant of the formal acceptance of the contract, and on May 9, 1955, a notice of completion of the contract was recorded in Santa Barbara County. The recorded notice states that the work was completed by the contractor and accepted by the Director of Public Works on May 3, 1955.