Bishop v. City of San Jose

• Decision Date: 30 October 1969
• Docket Number: S.F. 22677
• Citation: 1 Cal.3d 56,81 Cal.Rptr. 465
• Court: California Supreme Court
• Parties: , 460 P.2d 137, 19 Wage & Hour Cas. (BNA) 227 Charles BISHOP, Plaintiff and Appellant, v. CITY OF SAN JOSE et al., Defendants and Respondents.

Page 465

81 Cal.Rptr. 465

1 Cal.3d 56, 460 P.2d 137, 19 Wage & Hour Cas. (BNA) 227

Charles BISHOP, Plaintiff and Appellant, v. CITY OF SAN JOSE et al., Defendants and Respondents.

S.F. 22677.

Supreme Court of California In Bank.

Oct. 30, 1969.

Rehearing Denied Nov. 26, 1969.

Morgan, Beauzay & Hammer, Morgan, Beauzay, Wylie, Ferrari & Leahy, Robert Morgan, Eleanor M. Kraft and Kraft & Kraft, San Jose, for plaintiff and appellant.

Brundage & Hackler, Daniel Feins, Los Angeles, Charles P. Scully and Donald C. Carroll, San Francisco, amici curiae on behalf of plaintiff and appellant.

Ferdinand P. Palla, City Atty., Richard K. Karren, Asst. City Atty., and Harry Kevorkian, Deputy City Atty, for defendants and respondents.

John D. Maharg, County Counsel, Los Angeles, Edward H. Gaylord, Assistant County Counsel, Leonard Putnam, City Atty., Long Beach, Charles E. Greenberg, Deputy City Atty., Rutan & Tucker, Santa Ana, Harry J. Keaton, Los Angeles, James E. Erickson, Santa Ana, J. Nicholas Counter III, Santa Ana, E. K. Davis, David S. Kaplan, Sacramento, John B. Reilley, Frank E. Howard, Oakland, and Wayne N. Witchez amici curiae on behalf of defendants and respondents.

BURKE, Justice.

Plaintiff appeals from a judgment declaring the prevailing wage provisions found in certain sections of the Labor Code to be inapplicable to the employees of defendant city, and denying relief sought by way of injunction and damages. ¹ As hereinafter appears, we have concluded that the trial court ruled correctly with respect to the prevailing wage law, that no other ground for reversal has been shown, and that the judgment should be affirmed.

Plaintiff contends that from 1958 to 1966 defendant city unlawfully failed to pay its electricians the prevailing rate of per diem wages for work of a similar character, pursuant to the prevailing wage law (Lab.Code, § 1770 et seq.), and also failed to seek competitive bids for certain improvement and construction projects, pursuant to provisions of the city charter.

The city is a freeholders' charter city organized under the Constitution and laws of this state. Until May 1965 the city operated under its 1915 charter, as amended, and since 1965 it has operated under its 1965 charter, as amended. Both charters contain 'home rule' provisions (Cal.Const., art. XI, §§ 6, 8, subd. (j)), and provisions requiring that all public buildings and works costing more than a specified amount shall be done by contract and let to the lowest responsible bidder. ² Neither charter contains any provisions relating to prevailing wages; however, the city council periodically enacts prevailing wage ordinances.

Plaintiff's assignors are among some 17 electricians employed by the city who work under the city electrician and have performed additions, modification, maintenance and repair of city electrical facilities, buildings and equipment, including street lights, traffic signals, fire alarm boxes and systems, etc. The electricians are civil service employees of the city, and since 1958 have been paid monthly salaries on a year-round, full-time basis, ³ plus extra pay for overtime and holiday work, and plus various other benefits such as holidays, vacation and sick leave, health insurance and retirement benefits. In 1963 the work of the city electricians was approximately 40 percent new construction, but at the time of trial (1965--1966) the workload was only some 16 percent construction with maintenance taking up the other 84 percent.

Plaintiff's complaint focuses on four kinds of work ⁴ done by the city electricians between 1958 and 1966, assertedly in violation of the prevailing wage law and of the respective $1,000 and $2,500 project limits of the 1915 and the 1965 city charters. (Fn. 2, ante.) The trial court ruled, among other things, that both the four kinds of work and the setting and payment of salaries for city's own year-round, fulltime, civil service employees are purely municipal affairs to which, under the home rule provisions of article XI of the California Constitution, the prevailing wage provisions of Labor Code sections 1771 et seq., relied upon by plaintiff, cannot be applied; that in any event the prevailing wage law does not as a matter of statutory construction apply to the setting of such salaries. The court also found that the city at all times acted in the good faith belief that the prevailing wage provisions do not apply to the salaries paid to its own employees.

At all times since adoption of the Constitution in 1879, section 11 of article XI has specified that 'Any county City, town, or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.' (Italics added.) In 1896 section 6 of article XI was amended to provide a limited amount of autonomy for freeholders' charter cities, and in 1914 sections 6 and 8 of article XI were amended to permit such cities, by appropriate charter amendments, to acquire autonomy with respect to all municipal affairs. A city which adopted such 'home rule' amendments thereby gained exemption, with respect to its municipal affairs, from the 'conflict with general laws' restrictions of section 11 of article XI.

As to matters which are of statewide concern, however, home rule charter cities remain subject to and controlled by applicable general state laws regardless of the provisions of their charters, if it is the intent and purpose of such general laws to occupy the field to the exclusion of municipal regulation (the preemption doctrine). (Pac. Tel. & Tel. Co. v. City & County of San Francisco (1959) 51 Cal.2d 766, 768--769, 336 P.2d 514; Pipoly v. Benson (1942) 20 Cal.2d 366, 369--370, 125 P.2d 482, 147 A.L.R. 515.)

As is made clear in the leading case of Pipoly v. Benson, Supra, local governments (whether chartered or not) do not lack the power, nor are they forbidden by the Constitution, to legislate upon matters which are not of a local nature, nor is the Legislature forbidden to legislate with respect to the local municipal affairs of a home rule municipality. Instead, in the event of conflict between the regulations of state and of local governments, or if the state legislation discloses an intent to preempt the field to the exclusion of local regulation, the question becomes one of predominance or superiority as between general state laws on the one hand and the local regulations on the other. (See also e.g. Galvan v. Superior Court (1969) 70 A.C. 905, 910--920, 76 Cal.Rptr. 642, 452 P.2d 930; Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681--684, 3 Cal.Rptr [460 P.2d 141] 158, 349 P.2d 974, 82 A.L.R.2d 385; ⁵ Chavez v. Sargent (1959) 52 Cal.2d 162, 176--177, 339 P.2d 801; Agnew v. City of Los Angeles (1958) 51 Cal.2d 1, 5, 330 P.2d 385; Wilson v. Beville (1957) 47 Cal.2d 852, 856--861, 306 P.2d 789; Eastlick v. City of Los Angeles (1947) 29 Cal.2d 661, 665--666, 177 P.2d 558, 170 A.L.R. 225; Southern California Roads Co. v. McGuire (1934) 2 Cal.2d 115, 123, 39 P.2d 412.)

If resolution of that question requires a determination as to whether the matter regulated is a state or a municipal affair, then, as declared in Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 294, 32 Cal.Rptr. 830, 841, 384 P.2d 158, 169, 'Because the various sections of article XI fail to define municipal affairs, it becomes necessary for the courts to decide, under the facts of each case, whether the subject matter under discussion is of municipal or statewide concern.' In other words, 'No exact definition of the term 'municipal affairs' can be formulated, and the courts have made no attempt to do so, but instead have indicated that judicial interpretation is necessary to give it meaning in each controverted case. The comprehensive nature of the power is, however, conceded in all the decisions, * * *.' (Butterworth v. Boyd (1938) 12 Cal.2d 140, 147, 82 P.2d 434, 438, 126 A.L.R. 838; see also City of Pasadena v. Charleville (1932) 215 Cal. 384, 392, 10 P.2d 745(5).) Further, the 'constitutional concept of municipal affairs * * * changes with the changing conditions upon which it is to operate. What may at one time have been a matter of local concern may at a later time become a matter of state concern controlled by the general laws of the state. (Citations.)' Pac. Tel. & Tel. Co. v. City & County of San Francisco, Supra, 51 Cal.2d 766, 771, 775--776, 336 P.2d 514, 517; Butterworth v. Boyd, Supra.

In exercising the judicial function of deciding whether a matter is a municipal affair or of statewide concern, the courts will of course give great weight to the purpose of the Legislature in enacting general laws which disclose an intent to preempt the field to the exclusion of local regulation (see Ex parte Daniels (1920) 183 Cal. 636, 639--640, 192 P. 442, 21 A.L.R. 1172), and it may well occur that in some cases the factors which influenced the Legislature to adopt the general laws may likewise lead the courts to the conclusion that the matter is of statewide rather than merely local concern. However, the fact, standing alone, that the Legislature has attempted to deal with a particular subject on a statewide basis is not determinative of the issue as between state and municipal affairs, nor does it impair the constitutional authority of a home rule city or county to enact and enforce its own regulations to the exclusion of general laws if the subject is held by the courts to be a municipal affair rather than of statewide concern; stated otherwise, the Legislature is empowered neither to determine what constitutes a municipal affair nor to change such an affair into a matter of statewide concern. ⁶

In the present case it clearly appears from the provisions of the prevailing wage law here involved that the Legislature did not intend that that law apply to the setting of the salaries of employees of a city, whether chartered or not.

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