68 Wash. 578 | Wash. | 1912
In 1899 the legislature passed an act fixing the hours of labor upon public works, which provides that, “hereafter eight hours in any calendar day shall constitute a day’s work done for the state or for any county or municipality within the state.” Rem. & Bal. Code, § 6573. In 1903 it was provided that, “it is a part of the public policy of the state of Washington that all work” by contract or day labor, done “for it or any political subdivision cre
In furtherance of this policy, the city of Spokane, by Ordinance No. A4422, § 1, declared, “hereafter eight (8) hours in any calendar day shall constitute a day’s work on any work done for the city of Spokaneand § 2, that,
“Hereafter all laborers employed by the day on municipal work, either directly by the city, or by contractors, subcontractors, individuals, partnerships, associations or corporations, on all work for the city, shall receive and be paid not less than $2.75 for a calendar day’s work of eight (8) hours. The provisions of this section shall apply to and govern all work done for the city of Spokane and all work for any individual, firm, partnership, association or corporation which is done under the direction or under the supervision of, or which is to be accepted by the city of Spokane or any officer or agent thereof.”
The remainder of the ordinance is not material to our inquiry, except to say that it was provided that the ordinance should be a part of every contract thereafter to be entered into, and it became a part of the contract to which we shall presently refer. On March 10, 1910, the city passed Ordinance No. 5,016, wherein it is provided that hereafter “all work done by common laborers for the city of Spokane, or for any contractor, subcontractor or other person doing work by contract or otherwise for the city of Spokane, shall receive the sum of three dollars ($3) per day for eight hours’ labor,” etc.
On March 25, the city council passed an ordinance calling for the improvement of Sixteenth' avenue, by constructing
The record shows, and we understand the fact is not denied, that at the time the contractor was compelled by his contract to pay $2.75 for common labor, and possibly three dollars, the court having refused to hear testimony as to that sum; that the going wages for that class of labor ranged from $1.85 to $2.25 for a ten-hour day; that fifty-nine per cent of the cost of the work was paid out for common labor, and that but for the ordinance the bid of the contractor would have been materially less.
That the legislature may fix the hours of labor upon all public works and for public work even in cities is now well settled, and no allusion to sustaining authority will be made. Indeed, that feature of the case is not challenged by appellant; but it is contended that, where the city is acting merely as an agent of the property owner, it is bound to do its work to his best advantage, and cannot empirically fix a wage and compel its payment by an independent contractor. Appellant bases his argument on two propositions; (1) that the ordinance is unreasonable, contrary to public policy, and oppressive; (2) that the assessment is in contravention of the constitution of this state and of the constitution of the United States, in that it takes the property of this appellant without compensation and without due process of law. Abandoning legal phraseology, the concrete question, put in plain English, is whether a city can improve the property of a citizen, either upon his petition or against
It is insisted by the respondent city that this may be done, under the authority of In re Broad, 36 Wash. 449, 78 Pac. 1004, 70 L. R. A. 1011; Normile v. Thompson, 37 Wash. 465, 79 Pac. 1095; Gies v. Broad, 41 Wash. 448, 83 Pac. 1025, and Atkin v. Kansas, 191 U. S. 207. In the first case cited, the court held that an ordinance fixing the eight-hour day was not an unconstitutional exercise of power, since it related only to public works, and that no violation of private contract was involved. The case of Normile v. Thompson was controlled by In re Broad. The holding of the court was the same, and the contractor was held bound to pay the workman the amount he had agreed to pay in his contract. The right of the property owner was in no way involved. Gies v. Broad was a case where a laborer brought suit to recover the difference between the amount paid by the contractor and the amount agreed to be paid in his contract. The property owner and his rights were not considered, the sum of the court’s holding being that the contractor could not take a wage from a property owner and convert it, or any part of it, to his own use. In this opinion there is an expression which, although not necessary to the decision, may, if taken without qualification, seem to support the contentions of the respondent. It follows:
“The principle involved in that case [Atkin v. Kansas, 191 U. S. 207] is not distinguishable from the principle involved in the case now before us. For, surely, if it be within the power of the state to limit the number of hours a laborer may be permitted to labor in one calendar day on any public work undertaken by it, it can fix the minimum sum that shall be paid him as wages for such labor. The power to do either must rest on the principle that ‘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.’ ”
Laws fixing the hours of labor and-providing that no less than the going rate of wages shall be paid under contracts such as we have before us have been generally upheld; but the question for us to decide is whether, as against a protesting property owner, a wage unreasonably higher than the going wage can be arbitrarily paid for work done under a special assessment. In disbursing funds so collected, a city council is bound to act for the best interests of those contributing to the fund. The city acts in its proprietary capacity. Its council is the agent of the property owner. In Seattle v. Stirrat, 55 Wash. 560, 104 Pac. 834, 24 L. R. A. (N. S.) 1275, we said:
“The power to grade streets, lay sewers or water pipes, and to lay the cost thereof upon abutting property is not a governmental or public function in the strict sense.”
' The city in such cases acts merely as an agent ex necessitate; for, while the burden is upon the individual to improve the street, the nature of the work is such that it must be done in some order and with some relation to the improvement of connecting thoroughfares, to the end that the scheme of development and improvement may be harmonious. Beyond a right to do this work against the will of the abutting owner and in accordance with plans of its own adoption, the right of the city has not been extended. To hold that a city could ignore the first principles of agency — that is, that an agent is bound to serve his master and promote his interest— would be to put a burden upon an involuntary principal that has so far been unknown to the law. The labor here involved is common labor, requiring no training or skill, the only re
The duty of the city when acting as an agent is well defined in James v. Seattle, 49 Wash. 347, 95 Pac. 273. In that case a proceeding was brought by a property owner to restrain the city from contracting the work of excavating certain streéts. Although the court found against the complainant on the facts, it nevertheless adopted the text of Hamilton on Law of Special Assessments, in which it is said:
“As the very purpose of inviting proposals for public work is to give the property owner the benefit of the lowest price he may obtain by a free and unrestricted bidding, it follows that conditions in the specifications or contract which restrict bidding or tend to increase the cost of the work will vitiate the entire proceedings. Where contracts for local improvements are required by law to be awarded to the responsible bidders offering to do the work for the lowest sum, any provision in the specifications tending to increase the cost and make the bids less favorable to the property owners is illegal and void. . . . Whatever form the restriction assumes will be disregarded by the courts, if the conditions increase the cost of the work to the taxpayers, . . .”
We are not disposed to go into the constitutional questions raised by appellant, nor to hold on the present hearing that the ordinance fixing a minimum wage would operate as a taking of property without due process of law; for this case can be disposed of by resort to simpler processes. Exercising, as it does, the legislative power of the state, the test of a municipal ordinance is its reasonableness; which is but another way of saying that a municipality cannot go beyond its delegated power, if it be a city organized under the statute. If it be a city of the first class operating under a freeholders’ charter, it cannot, except in the exercise of its police power, or in the performance of strictly municipal functions, go beyond the zone of policy as declared by the state legislature; that is to say, in matters involving a public policy having no definite relation to either the police power
*585 “With regard to such contracts for the purchase of property or the employment of labor, counties, cities, and towns stand much upon the same footing as private corporations; and they cannot be compelled by an act of the legislature to pay for any species of property more than it is worth, or more than its market value at the time and in the place where it is contracted for. The power to confiscate the property of the citizens and taxpayers of a county, city, or town, by forcing them to pay for any commodity, whether it be merchandise or labor, an arbitrary price, in excess of the market value, is not one of the powers of the legislature over municipal corporations, nor the legitimate use of such corporations as agencies of the state. If an act compelled counties, cities, and towns to pay to all stone masons not less than $2 per perch for stone to be used on any public work, when the market price of stone was but $1.50 per perch, or to the brickmaker not less than $12 per thousand for brick, when brick of the same quality could be bought for $10 per thousand, or to the hardware merchant not less than six cents per pound for iron, when iron of the same quality could be had for four cents per pound, such legislation would shock every reasonable mind, and would be universally condemned as unwarranted and unconstitutional. For the same reasons, an act fixing the price of unskilled labor on all public works at not less than twenty cents an hour is a legislative interference with the liberty of contract by counties, cities, and towns, which finds no sanction or authority in the doctrine that counties, cities, and towns are municipal and political subdivisions of the state. ... If the minimum price to be paid by municipal subdivisions of the state for unskilled labor on public works exceeds the rate at which such labor can be obtained by other persons at the same place, then the excess so paid for labor on public improvements is taken from the citizens assessed for such works, not by due process of law, but by a mere legislative fiat. The citizens of the state, who must, through assessments made upon their property, pay for the public works of counties, cities, and towns, are entitled to have such work done at such rate of wages as the local agents and official representatives of such municipal subdivisions of the state may be able to secure by contract. They cannot be required arbitrarily to pay higher wages than laborers employed on private works or improvements in their particular district demand, any more than they could*586 be compelled by similar legislation to pay a minimum rate of wages to laborers employed by them in their private business. If the minimum rate fixed by the statute exceeds the market value of such wages, the excess is a mere donation exacted under color of law from the citizens liable to assessment for the public improvement, and bestowed upon the unskilled laborer. Public revenues cannot be applied in this’ way. McClelland v. State, ex rel., 138 Ind. 321; State ex rel. v. City of Indianapolis, 69 Ind. 375, 35 Am. Rep. 223; Warner v. Curran; 75 Ind. 309. . . . The laboring men of the state may, for some purposes, constitute a class concerning which particular legislation- may be proper. This classification has been recognized and sustained in statutes requiring the payment of wages in lawful money of the United States, forbidding the assignment of- future and unearned wages, and in similar acts. But no legal and sufficient reason can be assigned for placing unskilled labor in a class by itself for the purpose of fixing by law the minimum rate of wages at which it shall be employed by counties, cities, and towns on their public works. Why exclude the skilled mechanic from the benefit of the act? Why compel the payment of a higher rate of wages to the unskilled laborer than may be demanded by the skilled mechanic for more difficult and important work, requiring special training, experience,, and a higher degree of intelligence? Unless the• legislature has the power to fix the minimum rate of wages to be paid by counties, cities, and towns to carpenters, stone-masons, bricklayers, plumbers, and painters employed on local improvements, treating each trade as a separate class, it has not the power to enact laws fixing the compensation of unskilled laborers employed on similar works. No sufficient reason has been assigned why the wages of the unskilled laborer should be fixed by law and maintained at an unalterable rate, regardless of their actual value, and that all other laborers should be left to secure to themselves such compensation for their work as the conditions of supply and demand, competition, personal qualities, energy, skill, and experience, may enable them to do.”
We have found but one case in which a city council undertook to fix a minimum wage by ordinance. In Frame v. Felix, 167 Pa. St. 47, 31 Atl. 375, 27 L. R. A. 802, an ordinance of the city of Reading, in which it was provided that “said
There is another ground which- seems to the writer of this opinion to be controlling, although it is not suggested by counsel. The charter of the city of Spokane provides that contracts for work of the kind here undertaken shall be let upon competitive bids. It is also the policy of the state, as declared by the legislature, that all contracts for local improvements shall be done by contract upon like bids. In construing a statute, or determining its effect, reference must be had to all existing laws covering the same subject-matter. The same question that we have before us confronted the court of common pleas in Ohio. See, State ex rel. Bramley v. Norton, 18 Ohio Dec. 354. The court there said:
“Furthermore, does this provision of the ordinance conflict with the mandatory requirement of the statutory law of the state, that all contracts for municipal work shall be awarded the lowest responsible bidder.”
The court there adopted the text of Frame v. Felix, supra, 81 Atl. 375, where it is said:
“All that I am bound to say or that is proper for me to say is that, by attempting to fix in the specifications, on the basis of which proposals were invited, the minimum rate of wages to be paid by the contractor, the water-works board has withdrawn from possible competition one of the essential elements of the work, every part of which it was required to submit to competition, ... I am simply deciding that, in asking for proposals as to that work, and in framing its specifications therefor as the basis of such proposals, the water board had no right to fix in advance, any rate of wages to be paid by the contractor, whether it be too high or too low, and that, therefore, its past and intended action in the premises cannot be sustained.”
We repeat that we are not passing upon the constitutional questions involved, and are not now prepared to hold, upon
The judgment of the lower court is reversed, with directions to make such adjustment of the assessment upon the property of the appellant as will eliminate the difference between the amount justly chargeable as wages at the rate of
Gose, Crow, and Parker, JJ., concur.
Dunbar, C. J., dissents.