R. D. Andersen Construction Co. v. Kansas Department of Human ResourcesR. D. Andersen Construction Co. v. Kansas Department of Human Resources
- Reporters:
- , , ,
- Before:
- Wahl
On November 26, 1979, one Dan D. Neely filed a claim for wages form with the Kansas Department of Human Resources (appellants) seeking the difference between what he was paid by R. D. Andersen Construction Company, Inc. (appellee), on a public works project, and what he contended was due to him as “the current rate of per diem wages” under
On December 10,1980, appellee filed a petition in the Shawnee County District Court seeking a declaratory judgment that the appellants’ attempt to exert jurisdiction over the appellee pursuant to the claim made under
On January 13, 1981, appellants filed a motion to dismiss appellee’s petition on the ground that appellee’s application to the court for relief was premature in that the appellee had not exhausted its administrative remedies. Upon the hearing of the motion to dismiss, the court determined that the question to be decided was whether the appellants had the jurisdiction to enforce
On June 15, 1981, the court found for the appellee upon its prayer for a declaratory judgment and injunction. An order of injunction was filed on August 11, 1981. Appellants’ notice of appeal was filed on September 4, 1981.
The matter presents this court with two issues for determination:
1. Must the respondent in an administrative proceeding exhaust all administrative remedies before resorting to the district court to challenge the authority to the administrative tribunal to act at all?
2. MayK.S.A. 44-201, the eight-hour day on public work law, be enforced by the Secretary of the Department of Human Resources under the authority and administrative procedures prescribed byK.S.A. 44-313 et seq., the payment of wages law?
“ ‘The current rate of per diem wages’ for the intents and purposes of this act shall be the rate of wage paid in the locality as hereinafter refined to the greater number of workmen, laborers or mechanics in the same trade, occupation or work of a similar nature. . . .
“Eight hours shall constitute a day’s work for all laborers or other persons employed by or on behalf of the state of Kansas or any municipality of said state. . , . Not less than the current rate of per diem wages in the locality *455 where the work is performed shall be paid to laborers or other persons so employed.
“And laborers and other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state of Kansas or any municipality thereof shall be deemed to be employed by or on behalf of the state or such municipality so far as the hours of work and compensation herein provided are concerned.”
The enforcement provisions of the payment of wages law,
44-322. “(a) The secretary shall enforce and administer the provisions of this act and the secretary or authorized representative of the secretary are empowered to hold hearings and otherwise to investigate violations or alleged violations of this act. ” (Emphasis added)
44-322a.
“(a)
Whenever a claim for unpaid wages
under
“(d)
Upon the completion of the hearing, the secretary shall determine whether the claim for unpaid wages is a valid claim
under
R. D. Andersen Construction Company, Inc., was not seeking to circumvent any administrative rule or procedure by its petition in the district court. This action was brought to determine whether the Secretary of the Department of Human Resources was operating within his grant of authority when he summoned the appellee into an administrative hearing to enforce Neely’s claim under
Whether we can review the issue of
Appellants’ determination not to brief and present the question upon direction of the trial judge is, at best, a curious decision. Appellants elected to stand on the rule stated in Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 528 P.2d 1232 (1974). Apparently, the trial judge considered the position of the appellants concerning Jarvis to be tantamount to a brief. In any event, it cannot be overlooked that the trial court did consider the question. It having been an issue in the trial court, the question shall be considered on appeal.
The rule upon which appellants rely is stated by the Supreme Court in Jarvis v. Kansas Commission on Civil Rights, 215 Kan. at 906, as follows:
“The exhaustion doctrine dictates that an administrative remedy be sought and completed before the courts will act. Since respondent had not exhausted his administrative remedies and no hearing had been held nor final order rendered, the district court acted prematurely in issuing its order.
“. . . The courts should not interfere with administrative proceedings and assume jurisdiction of declaratory judgment proceedings until administrative remedies have been exhausted.”
The rule of Jarvis is not questioned in this case, but it has no application here. The issue in this case is whether there were any administrative remedies provided at all, not whether they had been exhausted.
It is a well-recognized exception to the rule in Jarvis that judicial review of interlocutory rulings of an administrative agency is proper if the agency has exercised authority in excess of its jurisdiction or acted in some manner that is contrary to its statutory grant of authority. Leedom v. Kyne, 358 U.S. 184, 3 L.Ed.2d 210, 79 S.Ct. 180 (1958); Harmon v. Brucker, 355 U.S. 579, 2 L.Ed.2d 503,78 S.Ct. 433 (1958); Office Employes v. Labor Board, 353 U.S. 313, 1 L.Ed.2d 846, 77 S.Ct. 799 (1957). The power of the administrative agency to act is not unlimited and it is the function of the courts to determine whether the action of the agency is within the law.
“It is for the courts, not for administrative agencies, to lay down the governing principles of law and to determine what action is within or without the law. This is a judicial function, and judicial review of questions of law may be held required by the Constitution and beyond the legislative power to impair.” 2 Am. Jur. 2d, Administrative Law § 654, p. 515.
*457 The rule of law allowing extraordinary judicial remedies to curtail or prohibit unlawful action by an administrative agency has long been recognized by the Kansas Supreme Court. In State, ex rel., v. Mohler, 98 Kan. 465, 472, 158 Pac. 408 (1916), in discussing administrative power, the Court said:
“If this power is abused, the courts are open to the aggrieved party, if not by some statutory review, then by the extraordinary and prerogative remedies of injunction or mandamus.”
And, in Butler v. Rude, 162 Kan. 588, 593, 178 P.2d 261 (1947), when the plaintiff brought an action challenging an order of the defendants, Secretary and State Board of Embalming, the Supreme Court held:
“In our opinion, Butler was not compelled to await action by the board suspending his license, or refusing to issue or renew his license, in order to test the board’s power to adopt the particular rule on the ground that the adoption of the particular rule was not authorized by statute.”
Under the provisions of
“(a) ‘Employer’ means any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, employing any person.”
This definition does not include the State of Kansas or any subdivision thereof. The same statute also defines “employee.”
“(b) ‘Employee’ means any person allowed or permitted to work by an employer.”
The payment of wages law, from which the appellants derive authority, can only operate against “employers” and in favor of “employees” within the express provisions of the law. The State of Kansas and its various political subdivisions are not employers under the act.
A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language is plain and unambiguous, the court should follow the intent as expressed by the words used. Underwood v. Allmon, 215 Kan. 201, 523 P.2d 384 (1974). Ordinary words in a statute are to be given their ordinary meaning and the statute is not to be read so as to add or subtract from that which is stated therein. Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, 557 P.2d 1286 (1976); State v. Pray, 5 Kan. App. 2d 173, 613 P.2d 400 (1980). When the language of a statute is clear and not ambiguous, no tribunal, whether judicial or administrative, may inject its version of what the law should be rather than giving effect to the statute as it is clearly written. Johnson v. McArthur, 226 Kan. 128, 596 P.2d 148 (1979); State v. V.F.W. Post 3722, 215 Kan. 693, 527 P.2d 1020 (1974).
The language employed in both the payment of wages law,
The trial court did not err in granting the prayer of appellee’s petition for declaratory judgment and injunction.
Affirmed.