Christy-Dolph v. Gragg

• Decision Date: 14 June 1932
• Docket Number: No. 420.,420.
• Parties: CHRISTY-DOLPH et al. v. GRAGG, Commissioner of Labor Statistics of Texas, et al.
• Court: U.S. District Court — Western District of Texas

59 F.2d 766 (1932)

CHRISTY-DOLPH et al. v. GRAGG, Commissioner of Labor Statistics of Texas, et al.

No. 420.

District Court, W. D. Texas, Austin Division.

June 14, 1932.

White, Taylor & Gardner, of Austin, Tex., for plaintiffs.

James V. Allred, Atty. Gen., Maurice Cheek, Asst. Atty. Gen., and James A. King, of Austin, Tex., Sp. Counsel, for defendants.

Before HUTCHESON, Circuit Judge, and WEST and McMILLAN, District Judges.

McMILLAN, District Judge.

The matter at issue here is the validity, under the Fourteenth Amendment to the Constitution of the United States, of a part of article 1580 and of article 1581 of the Penal Code of the State of Texas, as same apply to the plaintiffs herein. A temporary restraining order was issued by the District Judge, on proper showing made under the statute, pendente the hearing on the application for interlocutory injunction. A hearing on the application for interlocutory injunction came on to be heard before a court of three judges organized in compliance with section 266 of the Judicial Code (28 USCA § 380), after due notice given to the parties and the Governor and Attorney General of the state in compliance with the provisions of that section of the statute. On this hearing, plaintiffs, while still pressing their application for an interlocutory injunction, agreed in open court with the defendants that the matter might and should be submitted on its merits and finally disposed of at that time. Evidence, by way of agreed stipulation and ex parte affidavits, was submitted by both parties, the matter was fully argued by counsel, and written briefs filed.

Plaintiffs allege, in substance, that they are under binding written contracts entered into with the board of regents of the University of Texas, constructing six buildings on the grounds of the campus of the University of Texas, or performing certain electrical work in connection with said buildings, the total contract price therefor aggregating more than a million dollars; that in the course of the performance of these contracts they are employing certain skilled and common labor, which they are paying at various rates, dependent on the kind and class of labor, and which rates they had ascertained and determined on investigation made prior to submitting their bids and entering into the contracts with the board of regents; that they are able to secure, at the rates paid by them, more workmen than they need. They further allege that the commissioner of labor, after holding a public hearing for the purpose of determining the current rate of per-hour wages in the city of Austin and vicinity, arbitrarily found, determined, and promulgated a much higher wage scale than plaintiffs are paying, and has called upon these plaintiffs to inaugurate the scale of wages fixed by him, threatening, in the event of their refusal to do so, to institute prosecutions against them, under the articles of the statutes hereinbefore mentioned; that the county attorney has announced his intention of accepting these complaints and prosecuting the cases; that the statutes are void, as applied to these plaintiffs; and that their enforcement will irreparably damage and injure plaintiffs and deprive them of their liberty and property without due process of law.

The defendants, acting through the Attorney General of the state and special counsel, move generally to dismiss the bill, and, specially answering, admit that the defendant commissioner of labor will, if not prevented, undertake to enforce the provisions of the statutes complained against. They admit the greater portion of the allegations of the plaintiffs' bill, but deny the legal effect thereof, and specifically deny that there is no current rate of per-hour wages, for the character of work in which plaintiffs are engaged, in Austin, Tex.

The stipulation as to the facts agreed to by the parties sustains the allegation of plaintiffs' bill as to the formal matters pleaded, and as to their contracts with the board of regents, the workmen and laborers employed, the amount per day and per hour paid to said workmen and laborers, the public hearing held by the commissioner of labor, the establishment, after such hearing by the said commissioner, of a wage scale, and the announced intention on the part of the commissioner and the county attorney to file complaints against and prosecute those who fail to abide by said wage scale. It further sets out that there are about forty-four contractors doing business at Austin, not including the plaintiffs and others engaged in the construction of buildings for the University of Texas; that there was no provision in the contracts between plaintiffs and the regents requiring plaintiffs to pay for labor at a current hour wage or comply with the provisions of article 1580 of the Penal Code; that plaintiffs had been at work under said contracts for about thirty days before defendant Gragg held his hearing; and that plaintiffs used the wage scale now paid by them as a basis for their bids on the contracts, and are able to secure all the labor required by them for the wages now being paid.

A number of ex parte affidavits were introduced, and from these affidavits we find the facts with regard to the matters there covered to be: That there was no definite, fixed scale of wages per hour in the city of Austin or vicinity, at the time under inquiry, for labor of the class and kind employed by the plaintiffs; that carpenters could be and were employed at varying prices from four to seven dollars per eight-hour day; that common laborers could be and were employed at from 20 to 30 cents per hour on the basis of an eight-hour day; that electricians could be and were employed at the rate of from six to seven dollars per eight-hour day; that plaintiffs were, at the time they entered into the contract with the regents, and have been at all times since, able to procure all of the labor, both skilled and common, that they need at the scale of wages which they are paying. At the hearing held by the labor commissioner, evidence was extensively taken with regard to the wages paid various classes of labor in the city of Austin, and the testimony indicated that the wages of carpenters ranged from four to seven dollars per day of eight hours; that the Union scale was $7 per day and that the nonunion scale was less; that the wages of common laborers ranged from 25 to 37½ cents per hour. Other than the general statement contained in most of the affidavits that the wages deposed to were paid in Austin or vicinity, there is no definite evidence in the record tending to fix the locality affected by the matter under inquiry.

From this preliminary statement of the pleadings as shown by the record and the facts as found by the court, we now pass to the law of the case.

Article 1580 of the Penal Code of the state of Texas is in chapter 5 of title 18, and deals with contracts made by or on behalf of the state, or any county, municipality, or other legal or political subdivision of the state, with any corporation, person, association of persons for the performance of any work, and, after substantially stating that eight hours, with certain exceptions, shall be considered as constituting a day's work, contains the following provision: "Not less than the current rate of per hour wages for like work in the locality where the work is being performed shall be paid to the laborers, workmen, mechanics or other persons so employed or on behalf of the State, or for any county, municipality or other legal or political subdivision of the State, county or municipality, and every contract hereafter made for the performance of work for the State, or for any county, municipality, or other legal or political subdivision of the State, county or municipality, must comply with the requirements of this chapter."

The following article, namely, article 1581, denounces penalties as follows: "Any person, or any officer, agent or employee of any person, corporation or association of persons, or any officer, agent or employee of the State, county, municipality, or any legal or political subdivision of the State, county or municipality, who shall fail or refuse to comply with any provisions of this chapter or who shall violate any of its provisions shall be fined not less than fifty nor more than one thousand dollars, or be imprisoned in jail not to exceed six months or both. Each day of such violation shall be a separate offense."

Plaintiffs assail these provisions on the ground that the term "not less than the current rate of per hour wages for like work" is vague, indefinite, and uncertain, and furnishes no definite criterion by which these plaintiffs, or any other employer of labor, can be guided, and on the further ground that the term "in the locality where the work is being performed" is also vague, indefinite, and uncertain, because the statute does not define, and no one can say what is, "the locality where the work is being performed." They say that the enforcement of the statutes will deprive plaintiffs of their liberty and property without due process of law in violation of the Fourteenth Amendment to the Federal Constitution, because said statutes provide no ascertainable standard of guilt.

In our opinion, it cannot be doubted that this present case is ruled by the decision of the Supreme Court of the United States in the case of Connally v. General Construction Company, 269 U. S. 385, 46 S. Ct. 126, 128, 70 L. Ed. 322. There a statute of the state of Oklahoma, practically identical with the statute of the state of Texas under consideration, was challenged on the same grounds which are asserted here. The only material respect in which the Oklahoma statute differs from the Texas statute is that the Oklahoma statute provides that "not less than the current rate of per diem wages in the locality where the work is performed shall be paid." Comp. St. 1921, § 7255. We can conceive of no reason why...