*1 investiga- acter? We think the The answer is obvious. apprehension requirements tion is not provisions of a of such violator exclusively a local matter. Infractions of these general public Moreover,
are of concern. requirements necessarily these do not relate to traffic provide necessary control, but certain actions on part of the motorist involved taken after an acci- protect property injured. dent occurs to the life and charged The offenses the information here under con- police general sideration come under the necessarily regulation state and do not relate to of mo- municipal” tor vehicle traffic “local or al- nature, though occurring municipality. quash in a The motion to should have denied. been judgment is reversed and case remanded with proceedings
directions for further accordance with law. 14,868.
No. Industrial Commission v. Colorado State Federation
of Labor et al. (110 253) [2d] P. February 3, Decided 1941. *2 Philip Byron General, Mr.
Mr. Attorney G. Rogers, Assistant, Dean, Assistant, A. Mr. Oliver for Dergance, in error. plaintiff Philip Philip
Mr. Mr. Jr., Hornbein, Hornbein, defendants in error.
En Banc.
Mr. Justice delivered the of the court. opinion Knous from the controversy developed
Basically, in an agreement scale between incorporated and for the construction of a high the contractor beneath certain railroad tracks 46th way underpass pending pro- avenue ceeding street Denver. Vine brought court the district defendants finding in error to vacate the Industrial May finding: Commission 22, 1940, made “That the con- - Project struction of the railroad 20 A on FAGM - designed by highway solely high- engineers -1, way purposes and in architects have part, ‘highway constitutes and that construction’ heretofore this commis- established findings sion in its 28, March 1939, award of for the Concluding, first district are thereto.” light provisions chapter ’35 257, of section requiring payment C.S.A., struction at not less than the rate for work parties proceeded nature, similar that both had theory the erroneous that the character of the construc- tion determined scale, district court re- committed the *3 and remanded the record the Industrial Commission for a further in ac- chapter supra, cordance 42, 97, with section ground justice that the award did not substantial do parties. Feeling aggrieved the judgment itself the district court summary
the commission moved for review provided by chapter thereof supra. 43, section 97, proceeding in error here came 11, at issue December arguments 1940, January and oral were on heard 7,1941. previous In the interim, dates, to the last mentioned completely longer was finished; no employed wages paid workmen nor in connection with such respect nothing construction and with thereto left for the commission to determine. These circum- obviously stances make the instant moot normally a dismissal of the writ error would fol- public low. aspect in However, view of the of a dis- pute possibility character, of this may that such oc- again degree cur and in the trust that to some the latter thereby, proper be forestalled we deem it to com- briefly ment on matters submitted. 1939,” 28, March reference
In the “award of quoted portion award now is made in above purportedly commission, consideration, in formity our in Denver Council v. decision Trades (2d) construing Vail, 364, 267, Colo. 86 P. section supra, promulgated prevailing wage 257, “a scale” which high- it declared should the minimum “for state way Previously, contracts.” March 31, 1937, on com- finding mission had made its prevailing and public as to the then wages rates of in the build- ing industry. bids
Advertisements for with which published by high- we are here concerned were the state way engineer January, 1939, December, 1940. January opened 13, 1940, Bids were and the contract 15, was awarded to A. Horner on March S. 1940. Work began 21, thereunder March 1940. In the invitation presumably 257, conform with section * ** highway engineer the state recited “Rates of on this contract shall be not less than city for work of a similar nature is located, and said designated minimum rates above are deemed present prevailing specific rates.” The rates to which reference made and included in the advertisement were fixed those the commission “for state contracts” under the award of March 28, 1939.The same specified rates were in the contract, and we infer also stated the contractor’s bid. 25, date Under of March Brownlow, Mr. J. A. secretary-treasurer of the State Labor, Federation of *4 protesting a addressed letter to the commission wages by highway department rates of advertized project prevailing this wages “do conform not to the of City County
now effect in the. of Denver wages by nor to the established the Industrial Commis- previous sion hearings.” as the result of He further bridge of consider- structure a “There is involved stated: the classi- comes which able size on this the com- for which of construction” fication higher minimum a mission’s award own hearings work. fixed for the than was grounded, questioned upon were which It letter. of the Brownlow later initiated as a result facts, appears of to from our recital observed, con- until not submitted that this letter was after commenced. thereunder and the work tract was executed except set- for letter discloses, In ting record so far wages informatively for the union scale of project, thought employed dis- crafts he would be by patched of commission one members publication engineer highway the first soon after state any pre- protests kind, for the invitation made to either letter, to the Brownlow vious contracting engineer, officer, to the or state pertinent, the extent here section commission. To wages relating public rate to the works controlling agree parties all in this which provides * * * “Every contract as follows: party, requires or is a involves Colorado employment of mechanics in the con- laborers or * * * any highway, building pub- struction, or other * * * * * * pro- lic within the state shall contain a work the effect that the rate of for all laborers vision to ** * employed mechanics the contractor on the the contract shall be not less work covered prevailing of a similar than the nature work * * * * * * city in which the is lo- * * provided, provision further cated; *; that in any dispute arises as to what are the case similar nature adjusted by contract, to the which cannot be the con- tracting officer, the matter shall be referred the in- and its shall dustrial decision parties to the contract. clusive on all Such *5 rates shall be stated in the invitation for bids and shall proposals or included in bids for the work.” be. opinion, Vail, In Denver Council v. the Trades n
inter alia, recites: purpose foregoing “The evident statute practical, disadvantages, delays avoid and losses public, employers, employees nat- arise, urally suffer reason of that controversies during highways and other works the state.
“Since it is therein rates incorporated every shall construc- question, tion contract class those rates become requirement an essential element of the contract. The that those rates stated in also the formal invitation strongly- as in work, the bids for the Assembly pre- indicates that the General considered very agreement, scribed rates the basis for the by acceptance particular reached the however, If, bid. pre- invitation for bids mentions rates other than the vailing rates, or if a arises as to whether actually prevailing- so rates mentioned rates, it is question clear that a failure to decide in ad- vance of the formal execution of the contract in- would ject very uncertainty into the contract which the sought manifestly prevent. lawmakers It likewise by delaying clear that would, such failure settlement interrupt tend to and interfere with the Assembly construction work itself. The General obviously took the view that was desirable to ascer- very tain at outset the correct amounts of the rates questioned, opportunity early that an for their de- termination the Industrial Commission, the ul- fact-finding body, timate and authentic would tend to unnecessary money, save cost of time and addi- supply intending tion basis would solid on which bid- understandingly ders could calculate their bids.” conformity least where
Thus, sets instance the first statute, the invitation for bids in contracting specific of *6 any proposed, applicable ficial deems to dispute is the over fact what by procedure thereto must resolved be awarded, is in the the contract statute before wage thereby the bidders provide base for firm and Obviously, employed. be as as the workmen to in protest came too late and us before proceed at as it to the commission was without tempted. trial court
Further, we are accord by hearings held its issue in the in the conclusion that the wrongly the resultant and commission was conceived beginning correspondingly vitiated. In this miscon be said on the commission that behalf of suggested by ception, least error, if defendants in not by Following receipt concurred in was Brownlow letter them.
by ex an commission there was change correspondence, the no as the result of which hearing purpose as tice of the thereof initial fixed the - - - “determining Project part A if 20 1 does FAGM category not come under the work.” Con of construction sistently, hearing at the outset of the chairman of today hearing the held announced: “The - - question Project or 20 whether not FAGM A -1 should be or classified construction part work, construction or of this whether - - - Project FAGM A 1 classified as should be build ing work. The therefore will be question.” this Al confined to the determination of though in error defendants altered their view as the the then hearings progressed attempted show prevailing wages similar character in Den majority steadfastly ver, the the commission adhered premise upon Thus, the limitation announced. wage that one of two scales fixed awards entered years approximately previously, one and two conclusively announced, not attacked when was exclusively applicable underpass project, de- pendent solely on character, its structural commis- deciding dispute sion resolved the whole project “highway Patently, proc- construction.” unquestion- ess was statute, at variance with the ably contemplates a determination of the wages for work of a similar nature at the time dispute. wage Thus, scale fixed for another previously properly at a considerable time cannot re- upon conclusively establishing present prevailing lied wages concerning controversy. which there Each dis- pute light of this character must determined prevalent then scale for similar work intervening changes not otherwise. Previous awards and locality as well as the character of scales *7 pertinent the consideration, but ques- in a situation covered the statute the ultimate ap- prevailing tion as are to what the actual plicable given public to a contract be resolved must by the commission from evidence as a consideration of to what is then the for laborers rate of performing and mechanics nature in a similar locality public project the in which the These is located. the criteria the statute. determination fixed Because of the moot state of as this tardy inception proceeding the of the the circum- imposed upon scope stance that the limitation inquiry, testimony contained in record predominatingly pertains physical to the characteristics subsidiary factor, rather than to —a subject dispute real not the is time us to at- —this tempt phrase definition “the wages” suggest legal or to formula for the determina- proper proceeding tion thereof. Such must await record. judgment assigned of the district
For the reasons pointed been has However, since, as court is affirmed. would be out, further before improper that the district futile; ordered both ques- judgment court tioned be modified so as to vacate award of commission.
Mr. Justice Bakke not participating.
Mr. Justice Burke dissents.
Mr. Justice Burke dissenting. opinion, correctly pointed court’s out
As protest late and the com- came too in the instant case proceed. dis- so, If without mission was judgment equally powerless its to enter trict court was judgment, therefore, cannot be affirmed. and that opinion, Again, correctly pointed assigned agree I that the reasons case is moot. cannot nothing justify judgment. There was before nothing court. Hence there commission or district believing, express opinion I before us. So merits.