Bohn v. Salt Lake City

• Decision Date: 23 January 1932
• Docket Number: 5257
• Court: Utah Supreme Court
• Parties: BOHN v. SALT LAKE CITY et al

8 P.2d 591

79 Utah 121

BOHN v. SALT LAKE CITY et al

No. 5257

Supreme Court of Utah

January 23, 1932

Original prohibition proceeding by L. D. Bohn against Salt Lake City and others.

PEREMPTORY WRIT GRANTED.

Badger Rich & Rich, of Salt Lake City, for plaintiff.

Shirley P. Jones, A. W. Watson, and W. A. Fraser, all of Salt Lake City, for defendants.

E. A Walton and P. T. Farnsworth, Jr., both of Salt Lake City, amici curiae.

EPHRAIM HANSON, J. STRAUP, J., ELIAS HANSEN, J., concurring. FOLLAND J., CHERRY, C. J., dissenting.

OPINION

EPHRAIM HANSON, J.

This is an original proceeding brought in this court on notice to the defendants, by which the plaintiff, as a citizen and taxpayer on his own behalf and of others similarly situated, seeks a peremptory writ of prohibition to prevent Salt Lake City and its board of commissioners from consummating or awarding proposed contracts for the construction of a system of storm sewers, for the reason that the proposed contracts contain provisions which are alleged to be illegal and wasteful. The issues are made by the demurrer to the amended petition.

At this point we deem it proper to acknowledge our appreciation to Mr. P. T. Farnsworth, Jr., and Mr. E. A. Walton, members of the bar of this court, who, by our request, appeared as friends of the court and participated in the oral argument and have each furnished us a helpful brief on the questions here involved.

The amended petition shows that Salt Lake City has undertaken to construct a system of storm sewers, and that such storm sewers are a much needed, and when constructed will be a beneficial, public improvement. From what is alleged it is shown that such storm sewers will enhance the safety to life and property throughout the city, and will, to that extent, promote the welfare of its inhabitants. The commissioners of Salt Lake City approved and adopted certain plans and specifications which they had caused to be drawn up for the proposed sewers, and caused an estimate of the cost of the construction and installation of the entire project in accordance with approved plans to be made. This estimate found that the cost of the construction of the proposed sewers would be $ 600,000.

At a special bond election held October 27, 1931, Salt Lake City was authorized to create a bonded indebtedness in the sum of $ 600,000 for the purpose of obtaining the necessary funds with which to construct the proposed public improvement. In calling the election no other or additional purpose or reason why such indebtedness should be created was submitted to the electors.

The proposed system consists of several separate and distinct units that have no direct relation to each other in their construction, and which will be, in their operation, entirely independent of each other.

After inviting public bids for the work to be done according to the restrictive plans and specifications approved by the commissioners, and a proposed contract containing the same restrictive provisions, separate contracts for four of such units have been awarded, and work is being done thereunder, and, unless the defendants are prohibited by the order and judgment of this court, defendants will award contracts containing the same restrictive conditions for the construction of the remaining units of the system.

The provisions which the defendants insist shall be inserted in the contracts and of which complaint is made, in brief, are as follows: The contractors agree (1) so far as possible, there being no substantial and material difference in price to them, that all materials shall be Salt Lake City products and manufacture, and, if not procurable in Salt Lake City, then Utah products and manufacture, and if not procurable in Utah, the contractor shall have the right of selection; (2) that all excavating, loading, and back filling shall be done with hand labor, except that teams and tractors may be used for plowing and loosening the materials to be moved; (3) that contractors shall rotate all common labor, and, so far as practicable, all other labor once each week and shall not employ any workman more than two weeks in any month, nor shall they employ any workman in any month who has had two weeks work from any source during any given month if there are other men who are unemployed and available. An agency is set up by the commissioners to register all laborers with reference to such desired information, such agency shall not refuse registration to any able-bodied citizen of the United States who has been a bona fide resident of Salt Lake City for the past year; (4) preference in employment shall be given to citizens of the United States or those having declared their intention to become such, and particularly residents and heads of families of Salt Lake City; (5) eight hours shall constitute a day's labor; (6) that $ 3.50 per day shall be paid as a minimum wage.

It is averred that, by requiring all excavating, loading, and back filling to be done by hand labor to the exclusion of the use of mechanical trench diggers and other mechanical devices, the cost of the whole project will be unreasonably and unnecessarily increased to the extent of $ 35,000, and that it was so estimated by the defendants when making up the cost of the project. In respect to the provision calling for "rotation of labor" much is alleged in the petition of an uncertain and equivocal character. There is an absence in the amended petition of direct assertions of fact in reference thereto such as were made in oral argument when the case was submitted. It is alleged that the defendants estimated that this provision for the rotation of labor enlarged the cost approximately $ 20,000, but that in estimating the cost on the separate units this sum was not allocated to such units, but that this feature will make a substantial increase in the cost of the proposed improvement; that the prospective contractors had no opportunity to submit bids with this provision eliminated; that with this provision eliminated the cost of the entire project would be approximately $ 20,000 less.

At the time the cause was submitted, however, it was urged in oral argument that this particular stipulation, if inserted in the contracts, would increase the cost of the entire project to the extent of $ 20,000. In answer to that statement the city attorney said not a word in respect to the sufficiency of the pleading in that connection, but, in substance, did say that legally it could make no difference; that assuming that this feature of the proposed contracts would increase the cost of the entire project to the extent of $ 20,000 it falls in the same class, and will be controlled by the same principles, as the provisions calling for hand labor to the exclusion of machinery which he admitted will increase the cost of the project to the extent of $ 35,000.

Therefore, in our consideration of the case, we have taken it as admitted that the cost of the proposed storm sewers will be increased to the extent of $ 55,000 by reason of the insertion of the provisions calling for hand labor and for rotation of labor.

Other allegations in the petition are to the effect that the insertion of "each and all" of the foregoing restrictive provisions as terms of the proposed contracts will materially increase the cost of the construction of the proposed improvements.

In respect to the minimum wage it is asserted that some labor can be obtained in the Salt Lake City market for $ 3.00 per day, although substantially all contractors are paying $ 3.50 per day for common labor. It is shown that Salt Lake City and Utah, in common with the rest of the United States and other civilized nations of the world, are in the midst of an unprecedented business depression that has caused an unemployment situation that threatens to become a menace. It is alleged that all of said provisions are illegal and wasteful.

From the facts before us, the direct and primary commitment resting with the city and its commissioners by law is the construction of the storm sewers in order to provide a much-needed public improvement. It should be needless to say that the unemployment situation is something collateral to the object and purpose sought to be accomplished by the construction of the storm sewers. In view of what was stated in oral argument and what has been mentioned in the written briefs by counsel, we may here observe that there is always a demand for a certain amount of "common labor" that is incidental to the construction of any public improvement of the consequence of the proposed storm sewers, even when the method of construction admits of the freest competition, that made it desirable from an employment standpoint to have the storm sewers constructed independently of the method adopted.

It is not only obvious, but it is specifically admitted, as well that the very unusual specifications in respect to the employment and rotation of hand labor were inserted in the proposed contracts on the city's instance for the purpose of creating employment. We then have a situation before us where the city and its commissioners, in discharging the obligation resting on them by law to build and construct the proposed storm sewers, are insisting that the unusual and restrictive specifications be made a condition of the proposed contracts, which they frankly admit will enlarge the cost thereof to the extent of $ 55,000. It is not urged that this extra expenditure adds anything to the value or to the merit of the work to be accomplished. It is frankly admitted that it does not. The decision to make this extra expenditure was not the result of any consideration tending to advance or promote the interest of the storm sewers, but was motivated entirely by...