164 Wis. 172 | Wis. | 1916
The defendant was properly convicted and sentenced if the ordinance relating to “hours of labor upon public works,” being sec. 562 of the general ordinances of the city of Milwaukee, is a valid ordinance. The defendant claims that it is not valid for four reasons, stated as follows:
“1. The ordinance is not authorized by the charter as an exercise of police power.
“(a) There is no delegation of such authority.
“(b) As a police power regulation, classification is improper.
“(c) Would such a delegation of police power be constitutional ?
“(d) Could the legislature itself enact an eight-hour work day?
“2. If some regulation of hours of labor is within the delegated field of the police power under the Milwaukee city -charter, the ordinance in question is unreasonable.
“3. The ordinance is not authorized by the Miliuaukee -city charter as subsidiary to the eighth division of the general welfare clause. Neither is authority impliable from -any charter provisions granting the right to contract for public work.
“4. Even if authority to in some manner regulate labor on ^public works may be implied from any provisions of the Milwaukee city charter, the ordinance in question is not a proper «exercise of such authority because it conflicts with other express provisions of said charter.”
“Section 562. The service or employment of all laborers and mechanics who are now or who may hereafter be employed by the city of Milwaukee, or by any contractor, or subcontractor, upon any of the public works of this city, is hereby limited and restricted to eight hours in any one calendar day; and it shall be unlawful for any officer of the city government or any such contractor or subcontractor, whose duty it shall be to employ, direct or control the services of such laborers or mechanics, to require or permit any such laborer or mechanic to work more than eight hours in any calendar day, except in case of extraordinary emergency, as in case of war, fire, flood or danger to life or property.”
“Section 563. Any officer of the city government, or any contractor, or subcontractor, and where such contractor, or subcontractor, is a corporation, any officer, manager or agents of such corporation, whose duty it shall be to employ, direct or control any laborer or mechanic employed in any public works of the city, who shall violate any provision of the foregoing section, for each and every offense, shall, upon conviction, be punished by a fine not to exceed twenty-five dollars, or to imprisonment in the house of correction of Milwaukee county for not more than thirty days.”
The general welfare clause, so called, of the charter of the city of Milwaukee is as follows:
“The common council shall have the management and control of the finances and of all the property of the city, except as in this act otherwise provided, and shall likewise, in addition to all other powers herein vested in them, have full power and authority to make, enact, ordain, establish, publish, enforce, alter, modify, amend and repeal all such ordinances, rules, by-laws and regulations for the government and good order of the city — for the benefit of the trade, commerce and health thereof — for the suppression of vice — for the prevention of crime — and for carrying into effect the powers vested in said common council, as they shall deem expedient; and to declare and impose penalties, and to enforce*178 tbe same against any person or persons wbo may violate any of tbe provisions of sucb ordinances, rules, by-laws and regulations. And sucb ordinances, rules, by-laws and regulations are hereby declared to be, and bave tbe force of law, provided, that tbey be not repugnant to tbe constitution of tbe United States or of tbis state.”
■ Tbis provision should be read in connection with cb. 678-of tbe Laws of 1913 (sec. 925 — 52c, Stats.), known as tbe Home Rule Act:
“1. All cities of tbe first class in tbis state are hereby granted tbe powers necessary to give full force and effect to-the intention hereof.
“2. Whenever tbe legislature has heretofore granted to. any city, however incorporated, a general welfare clause, preceded or followed by specific grants of power, sucb specific grants shall not be construed as restrictions upon sucb general welfare clause, but sucb general welfare clause shall be-given a liberal construction, to tbe end that tbe cities may exercise all powers granted therein or reasonably implied therefrom.
“3. All statutes enacted by tbe legislature granting to sucb cities any powers or prescribing tbe method and manner of' executing said powers shall be given a liberal construction, to tbe end that sucb cities shall be given tbe largest- possible-power and leeway of action under sucb statutes.
“4. Whenever tbe legislature has heretofore or may hereafter grant any sucb city power to do anything, sucb power-shall be construed as including all things necessary to carry out said grant; and whenever, in construing any statute granting any powers or any rights to cities, there shall arise merely a question of doubt as to whether tbe legislature intended to. grant any power or right, whether expressed or implied, such doubt shall be resolved in favor of the city possessing such power or right; whether such power or right shall concern-.the above or the manner of carrying out any power or right.”'.
Ch. 199 of the Laws of 1897 is as follows:
■ “In all cases of convictions in actions brought to recover a-penalty imposed under the provisions of any ordinance passed: by any city in the state of Wisconsin of the first class,.*179 whether organized under the' provisions of the general law ■or operating under a special charter granted by the legislature of this state, to recover a penalty or forfeiture for the violation of any of the ordinances, rules, regulations or bylaws of any such city, the court or magistrate having juris•diction of such action shall enter judgment for such penalty or forfeiture, together with the costs of prosecution, against .the defendant, and shall also enter a judgment that such defendant be imprisoned in the county jail or the house of correction of the county in which such city shall be situated, until such judgment be paid, but in such cases the court shall limit the time of imprisonment, which in no case, however, shall exceed the term of six months, and shall forthwith commit the defendant accordingly.”
The constitution of this state (sec. 3, art. XI) not only empowers the legislature to provide for the organization of cities and incorporated villages, but makes it its duty to do so. The city of Milwaukee is a body politic and corporate and is established by law (1) to assist in the civil government of the state, and (2) to regulate and administer the internal or local affairs of the territory within its corporate limits, and as such it has such powers as are expressly granted to it and such others as are necessary and convenient to the exercise of the powers expressly granted. 1 Dillon, Mun. Corp. (6th ed.) § 31; Gilman v. Milwaukee, 61 Wis. 588, 21 N. W. 640; State ex rel. Elliott v. Kelly, 154 Wis. 482, 143 N. W. 153.
In its capacity as a governmental agency the city is ■charged with the duty .of determining the necessity and the extent and general character of all public improvements, in-eluding streets, sewers, public buildings, lighting works, waterworks, and other public works, and of providing for their •construction and maintenance; and on its proprietary side it lets contracts for the erection and construction of all public works and carries on many activities of a kind which in a general way resemble those of a private corporation, although ■everything inures to the benefit of the people. This distinc
Sec. 3, art. XI, of the constitution contains the following provision:
“It shall be the duty of the legislature, ..and they are hereby empowered, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations.”
It has been held that cities charged with the duty of providing public improvements are, unless restricted by act of the legislature, limited only by the object and purpose of their creation. Oconto City W. S. Co. v. Oconto, 105 Wis. 76, 80 N. W. 1113.
The city of Milwaukee is charged with the duty of providing public works within the city, and its powers are very broad in carrying out the legislative purpose, subject only to the constitutional limitations as to indebtedness and the restrictions, imposed by the legislature.
The state may limit, and it has by legislative enactment limited, the hours of labor on public works which are contracted for by the state or any officer or agent thereof:
“Section 1729m. 1. Each and every contract hereafter-made for the erection, construction, remodeling or repairing-of any public building or works, to which the state or any officer or agent thereof is a party, which may involve the employment of laborers, workmen or mechanics, shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor, subcontractor, agent or other person, doing or contracting to do all or a part of the work contemplated by the contract, shall be permitted to work more than*181 eight hours in any one calendar day, except in cases of extraordinary emergencies.
"2. The phrase 'extraordinary emergencies/ as used in this section, shall mean and include only such as grow out of the necessity of protecting property or human life when endangered by reason of an attack by the public enemy or endangered from fire, flood or storm.
“3. This section shall apply only to such work as is actually performed on the premises on which such buildings or works are being erected, constructed, remodeled or repaired.”
While the statute was enacted in 1909, its validity has, so far as we are aware, never been challenged. The validity of a statute very similar, except that by its terms it extended to contracts for public work by any city or other municipality, was sustained by the supreme court of the United States as well as by the supreme court of the state of Kansas. It was sustained by both courts on the ground that the state has the inherent power as a sovereignty to prescribe the conditions under which public work shall be carried on.
"Whatever may have been the motives controlling the enactment of the statute in question, we can imagine no possible ground to dispute the power of the state to declare that no one undertaking work for it or for one of its municipal agencies, should permit or require an employee on such work to labor in excess of eight hours each day, and to inflict punishment upon those who are embraced by such regulations and yet disregard them. It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the state. On the contrary, it belongs to the state, as the guardian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities. No court has authority to review its action in that respect. Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern.” Atkin v. Kansas, 191 U. S. 207, 222, 24 Sup. Ct. 124.
“The contention that the act is unconstitutional is not frivolous, since it may be argued that there are relevant distinctions between the power of the United States and that of a state. But the arguments naturally urged against such a statute apply equally for the most part to the two jurisdictions, and are answered, so far as a state is concerned, by Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124. In that case a contractor for work ppon a municipal boulevard was sentenced to a fine under a similar law of Kansas, and the statute was upheld. We see no reason to deny to the United States the power thus established for the states. Like the states, it may sanction the requirements made of contractors employed upon its public works by penalties in case those requirements are not fulfilled. It would be a strong thing to say that a legislature that had power to forbid or to authorize and enforce a contract had not also the power to make a breach of it criminal; but however that may be, Congress, as incident to its power to authorize and enforce contracts for public works, may require that they shall be carried out only in a way consistent with its views of public policy, and may punish a departure from that way. It is true that it has not the general power of legislation possessed by the legislatures of the states, and it may be true that the object of this law is of a kind not*183 subject to its general control. But tbe power that it lias over tbe mode in wbicb contracts witb tbe United States shall be performed cannot be limited by a speculation as to motives.” Ellis v. U. S. 206 U. S. 246, 255, 256, 27 Sup. Ct. 600.
Tbe power of tbe state as well as of tbe United States to limit tbe hours of labor upon public works in no way involves tbe exercise of the police power, but is a power incidental to and inherent in its right to contract for public works and to specify tbe conditions under which labor upon public works shall be performed. So far as this case is concerned, tbe question of whether or not tbe city of Milwaukee may in the exercise of its police power limit tbe hours of labor upon public works drops out of consideration. Tbe law being based upon tbe inherent power of tbe federal government and of tbe state and state agencies to contract, all questions of discrimination and classification are also eliminated.
It being established that tbe state has tbe power to limit tbe hours of labor on public works, including public works for its municipalities, has tbe city of Milwaukee such power ?
Tbe power to prescribe tbe conditions upon wbicb public work shall be carried on is undoubtedly primarily in tbe state. When tbe state speaks its voice is law. Tbe city is simply an agency of tbe state, and as such has only such powers as are conferred upon it expressly or by implication. Tbe state of Wisconsin has not attempted to prescribe tbe conditions under wbicb public work shall be carried on within tbe cities of this state. Cities are charged witb tbe power and duty of determining tbe necessity for public works, their extent and character, and, subject to tbe constitutional limitation as to indebtedness and certain prescribed rules of procedure, tbe whole subject of providing for public works within a city is committed to tbe common council of tbe city. The whole matter of providing public works being delegated to tbe city, tbe city has, as an incident to its power to contract for tbe erection and construction of public works, tbe same
The city having, as incident to its power of contracting for public works, the power to prescribe the conditions upon which work shall be done, including the power to fix the hours during which those employed shall be permitted to labor, may it enforce its will in that respect by an ordinance and punish the violation of the ordinance by the imposition of a penalty?
If express authority to do this must be found in the charter of the city, its power to enact ordinances for carrying into effect the powers vested in it and to declare and impose penalties and enforce the same, given by the general welfare clause, is amply sufficient to sustain the enactment of the ordinance in question. The fact that in its proprietary capacity it may as a part of its contractual powers have the incidental authority to limit the hours of labor on public works, does not prevent it in its governmental capacity from enforcing the limitation by ordinance. “The government purely as contractor, in the absence of special laws, may stand like a private person, but by making a contract it does not give up its power to make a law.” Ellis v. U. S. 206 U. S. 246, 256, 27 Sup. Ct. 600.
Upon the adoption of an ordinance it has by the general welfare clause the force and effect of a law, and becomes, therefore, a part of every contract relating to public works within the corporate limits of the city of Milwaukee. The existing law of the land is a part of every contract and must be read into it. 6 Ruling Case Law, p. 855.
The city may by the express terms of its charter enforce the ordinance by the imposition of a penalty. The penalty is imposed, not for the breach of a contractual obligation, but
The ordinance provides that any person violating it “shall upon conviction be punished by a fine not to exceed twenty-five dollars or to imprisonment in the house of correction of Milwaukee county for not more than thirty days.” While it is true that the authority to punish violations of municipal ordinances by imprisonment must ordinarily be expressly conferred and will not be implied (2 Dillon, Mun. Oorp. (5th ed.) § 625), it is not necessary to decide that point in this case.
The judgment in this case is that the defendant “pay a penalty ... or in default thereof be committed to the house of correction for Milwaukee county, Wisconsin, for a term not to exceed thirty days.” The judgment in this case is therefore for a penalty imposed under the provisions of an ordinance passed by a city of the first class, and in accordance with the provisions of ch. 199, Laws 1897, the court was required to enter the judgment in the form adopted in this case.
This being a civil action for forfeiture, we do not decide whether that part of the ordinance providing that a violation thereof shall be punished by a fine or imprisonment, so far as imprisonment is concerned, is a valid enactment. The judgment in this case being in accordance with the general law, the question is not before us.
The charter of the city of Milwaukee, in common with .most municipal charters in this state, requires that all public contracts be let to the lowest bidder, and the ordinance in
Is the ordinance unreasonable, assuming that the city has power to enact it ?
It is said to be unreasonable (1) because no provision is made for overtime, and (2) because, as appears from the findings of the court, it would be practically impossible to carry on the construction of public works if the ordinance should be strictly observed and enforced. The findings of the trial court upon this branch of the case are full and complete. The court found that the performance of the work called for by the contract under which the defendant was working at the time of the commission of the offense, required the employment of miners, so called, who are skilled laborers accustomed to doing tunneling and providing shoring and timbering as a part of the digging of sewers and work of the kind in question, and that the work likewise required the hiring of carpenters, and engineers to operate the necessary machinery for supplying the miners with air; that
We must assume in tbe first place that tbe ordinance will be reasonably construed and applied. It seems to us plain that tbe intention is that work heretofore done usually, ordinarily, and customarily during tbe nine- or ten-hour period shall be done by persons employed upon public works for eight hours instead of nine or ten hours. Eor instance, a teamster who begins bis ten-hour day must have fed and eared for bis team. He receives ten hours’ pay and is ordinarily and customarily said to work ten hours. A fireman Avbo banks bis fires as a part of tbe usual day’s work, although tbe entire period in which tbe service is rendered may extend beyond tbe ten-hour period, is said to work but ten hours.
So far as a provision for overtime is concerned, it must be a-pparent upon tbe slightest consideration that a provision for overtime would simply fix tbe compensation received and
Many matters have been urged in support of the argument that the law is invalid which raise only questions of public policy, and, as has been said, with this the courts have nothing to do. In disposing of similar contentions made before it, the supreme court of the United States said:
“So, also, if it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people’s representatives. We are reminded by counsel that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true — indeed, the public interests imperatively demand— that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the constitution. It cannot be affirmed of the statute of Kansas that it is plainly inconsistent with that instrument; indeed its constitutionality is beyond all question. ... We rest our decision upon the broad ground that the work being of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not,*189 by its regulations, infringe the personal rights of others; and that has not been done.” Atkin v. Kansas, 191 U. S. 207, 223, 224, 24 Sup. Ct. 124.
Without expressing any opinion, impliedly or otherwise, that such is the fact, if legislation of the character now before us is mischievous in its tendencies and results in increased tax burdens, the remedy rests with the people themselves. The remedy is legislative and political and is not to be found in the judicial field. The field of legislative discretion is broad, and as long as legislative bodies stay within its limits, their enactments are the law of the land. We conclude, therefore, that the ordinance in question is valid and that the defendant was properly convicted and sentenced.
By the Court. — Judgment affirmed.