__ Cal.App.2d __, Civ. 18517, Parker v. Bowron

Docket NºCiv. 18517
Citation__ Cal.App.2d __, 239 P.2d 893
Party NameParker v. Bowron
Case DateJanuary 21, 1952
CourtCalifornia Court of Appeals

Page __

__ Cal.App.2d __

239 P.2d 893

PARKER et al.

v.

BOWRON, Mayor of the City of Los Angeles et al. [*]

Civ. 18517.

California Court of Appeals, Second District, First Division

Jan. 21, 1952.

Hearing Granted March 20, 1952.

Rehearing Denied Feb. 11, 1952.

[239 P.2d 894] David Sokol, Los Angeles, and Clarence E. Todd, San Francisco, for appellants.

Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., George William Adams, Alan G. Campbell and John F. Feldmeier, Deputy City Attys., all of Los Angeles, for respondents.

DRAPEAU, Justice.

The instant proceeding in mandamus was initiated by petitioner individually, as a member and officer of the Council of Federated Municipal Crafts of Los Angeles, and for and on behalf of certain affiliated unions and their members.

The petition alleges that petitioner Council of Federated Municipal Crafts of Los Angeles (hereinafter referred to as the Union) is an unincorporated association and that the United Brotherhood of Carpenters and Joiners of America, Local Union No. 2231; United Association of Plumbers and Steam Fitters, Local Union No. 78; Southern California District Council of Laborers and Carpenters District Council of Los Angeles County, all unincorporated associations, are members of the Union; that Union is devoted to improvement of working conditions of members of its affiliated unions; that each and all of the members of said affiliated unions have authorized Union to represent them collectively with respect to matters involving wages, hours and working conditions; and 'that in so doing the said 'Union' represents those members of the 'affiliated unions' who are working for the City of and County of Los Angeles, State of California, the Los Angeles City Board of Education, the Water and Power Department of the City of Los Angeles, and the Harbor Department of the City of Los Angeles.'

Petitioners here seek a writ of mandate requiring respondents, the mayor and the city council, to pay to plumbers, carpenters and laborers in the employ of the city of Los Angeles, salaries at least equal to those prevailing in private employment, in accord with section 425 of the City Charter which reads in part as follows: 'In fixing the compensation to be paid to persons in the city's employ, the Council * * * shall, in each instance, provide a salary or wage at least equal to the prevailing salary or wage for the same quality of service rendered to private persons, firms or corporations under similar employment, in case such prevailing salary or wage can be ascertained.'

It is alleged that in fixing salaries for the three named classifications--plumbers, carpenters and laborers--the city made a survey as to the prevailing wage in March, 1950; that such survey disclosed the actual monthly wage then being paid in private employment was more than city was paying for the same quality of work.

In this connection it is alleged that the prevailing wage in private employment was as follows:

$435 for journeymen plumbers; $382.80 for carpenters; $287.10 for laborers. But that city in violation of section 425, supra, was paying to members of the affiliated unions a graduated monthly wage scale as follows:

$303 for the first year of service and $375 for the fifth year to plumbers; $259 to $319 to carpenters; $181 to $221 to laborers.

It is also alleged that by reason of the survey, respondents had available facts from which they could have ascertained the prevailing wages for these three classifications, but that they refused to take such information into consideration, and refused to pay such prevailing wages.

A supplemental answer filed by respondents in open court at the start of the trial alleged that a salary ordinance effective January 30, 1951, had raised the monthly graduated scale of wages as follows:

[239 P.2d 895] Plumbers: $337 for the first year of service to $417 for the fifth year; carpenters: $303 to $375; laborers: $211-$273-$288.

At the trial, respondents objected to the introduction of any evidence on the grounds:

1. That none of the petitioners named was beneficially interested in the subject of the proceeding or in any relief sought by the petition;

2. That the petition failed to state a cause of action in mandamus against any of respondents, because it attempted to compel action in a matter left to their discretion.

The objection was sustained by the trial court. From the judgment which followed discharging the alternative writ, denying a peremptory writ of mandate, and dismissing the petition, petitioners appeal.

The questions presented for decision are:

1. Do petitioners have legal capacity to sue?

2. Does the petition state a cause of action in mandamus?

It is alleged that the city employs 26 plumbers out of a total of 2631 members of the United Association of Plumbers and Steamfitters; 250 carpenters of a total of 35,000 members of the Carpenters District Council of Los Angeles County; and 110 laborers of a total of 11,000 members of the Southern California District Council of Laborers; and that the Union is the 'collective bargaining representative of practically every craft of employee of the City of Los Angeles', including the above named unions.

As stated in Thomasson v. Jones, 68 Cal.App.2d 640, 642, 157 P.2d 655, 656, it is established law that 'A writ of mandate will not be granted unless it is necessary to protect a substantial right and upon a showing that substantial damages will be suffered by the petitioner if the writ is denied. Ault v. Council of City of San Rafael, 17 Cal.2d 415, 110 P.2d 379. The writ of mandate is to be issued only upon the application of the party beneficially interested. Code of Civil Procedure, sec. 1086. The writ will not issue when the petitioner has no direct interest in compelling the defendants to perform the function mentioned in the writ. Ellis v. Workman, 144 Cal. 113, 115, 77 P. 822.'

In the more recent case of Hollman v. Warren, 32 Cal.2d 351, 357, 196 P.2d 562, 566, where it was contended that petitioner was not a properly interested party, our supreme court held: 'Aside from her character as an applicant for appointment as a notary it is alleged that she is a resident and taxpayer of the City and County of San Francisco. As such she is interested in having a sufficient number of notaries commissioned to act therein. The rule applicable here is stated thus in 35 American Jurisprudence, [page] 73; section 320: '(B)y the preponderance of authority * * * where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the...

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