City of Albuquerque v. Burrell, 6398

• Decision Date: 13 June 1958
• Docket Number: No. 6398,6398
• Parties: CITY OF ALBUQUERQUE, a Municipal Corporation, Plaintiff-Appellant, v. C. W. BURRELL, State Labor Commissioner, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1088

326 P.2d 1088

64 N.M. 204

CITY OF ALBUQUERQUE, a Municipal Corporation, Plaintiff-Appellant, v. C. W. BURRELL, State Labor Commissioner, Defendant-Appellee.

No. 6398.

Supreme Court of New Mexico.

June 13, 1958.

Frank Horan, Malcolm W. DeVesty, Paul F. Henderson, Jr., Albuquerque, for appellant.

Fred M. Standley, Atty. Gen., Fred M. Calkins, Jr., Robert F. Pyatt, Asst. Attys. Gen., for appellee.

McGHEE, Justice.

The plaintiff sought an injunction against the defendant to prevent his insisting upon the city inserting minimum wage rates which had been promulgated by him in his general orders 4 and 6 made pursuant to the provisions of section 6-6-6, N.M.S.A.1953, the material part of which reads:

'The advertised specifications for every contract in excess of $2,000, to which the state of New Mexico, or any political subdivision thereof is a party, for construction, alteration, and/or repair, including painting and decorating, of public buildings or public works or public roads of the state of New Mexico, and which requires or involves the employment of mechanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the state labor commissioner to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision or district of the state in which the work is to be performed there; * * *'

The complaint alleged it had undertaken to construct various public buildings, works and highway and street projects upon which bids had been asked, and will be asked, of general construction contractors, the advertising specifications of which must contain minimum wage rates determined by the defendant, and that public funds for the payment of such public work contracts had been raised by public bond issues.

The complaint makes the following attack on such orders:

'Alleged General Orders No. 4 and No. 6 were issued by the defendant contrary to Section 6-6-6 N.M.S.A., 1953 in the following respects:

'(1) Said Orders do not reflect the prevailing minimum wage rates in the City of Albuquerque.

'(2) Said Orders were not determined from any investigation on the part of the defendant, nor as the result of any evidence or facts received from any hearing for the purpose of making such determination.

'(3) Said Orders were issued as a result of the arbitrary, capricious, unreasonable and unlawful action of the defendant contrary to law and the public policy of the State of New Mexico.

'The alleged General Orders No. 4 and No. 6 constitute rates of wages higher than the minimum wages paid for similar work in the City of Albuquerque, and if said orders are allowed to remain in force, the cost of construction will be so great for the City of Albuquerque, that it will not have sufficient funds with which to carry on its public works according to schedule.

'That Chapter 179, Laws of 1937 is unconstitutional and void in that it constitutes an unlawful delegation of the legislative power to the State Labor Commissioner, contrary to Article III, Section 1, in that it delegates to the State Labor Commissioner the power to determine minimum wages upon public works without fixing any reasonable standards to guide him in making his determination; that there are no provisions for ascertaining wage conditions in the industry in order to determine the reasonable and fairness of the proposed wage rates.

'There is great urgent need for the City of Albuquerque to proceed with its public works program for the benefit of the health and safety of its citizens, and unless the defendant is enjoined from enforcing said alleged illegal General Orders No. 4 and No. 6, said public works program will not be able to proceed as scheduled to the great detriment and harm to the general public.'

The application of the plaintiff for a temporary injunction was set for hearing, and the defendant filed a motion to dismiss the complaint with prejudice on the following grounds:

'That said Petition fails to state a claim upon which relief can be granted because:

'(a) Plaintiff is a volunteer and has no standing to sue defendant in a cause of this nature.

'(b) That this is a suit against the State of New Mexico to which legislative consent has not been given.

'(c) That Sec. 6-6-6 NMSA, 1953 Comp., is constitutional and is not an unconstitutional delegation of legislative authority, but is rather a valid instruction by the legislature to an agent of this State, to-wit, the State Labor Commissioner.

'(d) That the instant controversy involves a discretionary function vested in Defendant, is within the exclusive jurisdiction of the executive branch of the government of this State, and this Honorable Court has no jurisdiction concerning the same.

'That Plaintiff has failed to join an indispensable party defendant.'

Following a hearing an order was entered sustaining the motion on all grounds, and this appeal followed. For the purpose of determining the correctness of the ruling all material facts set out in the complaint must be taken as true.

The plaintiff answers the contention of the defendant that it is a volunteer and thus has no standing to maintain this action, saying it is a municipal corporation, and as such must undertake public construction such as buildings, sewers, and water works and make street repairs among other duties for the health and welfare of its citizens and the public generally; that it has voted bonds and planned various types of construction which must be materially curtailed if the order complained of is valid because of the claimed excessive wage scale set by the defendant, and that by reason thereof the doctrine of the cases of Perkins v. Lukens Steele Co., 1946, 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108, and United States v. Binghampton Construction Co., 1954, 347 U.S. 171, 74 S.Ct. 438, 98 L.Ed. 594, that one doing business with the government is a volunteer and as such does nto have the capacity to maintain an action to test the validity of a wage scale set by the Secretary of Labor under the Walsh-Healey and Bacon-Davis acts, 41 U.S.C.A. Sec. 35 and 40 U.S.C.A. Sec. 276a respectively, does not apply to it.

The Walsh-Healey Act provided one supplying materials to the United States in amounts exceeding $10,000 should pay wages to its employees in such sum as was determined by the Secretary of Labor to be the prevailing wage in the locality. The Bacon-Davis Act contained a similar provision relating to contractors doing work for the United States.

The New Mexico statute under consideration is practically identical with the Bacon-Davis Act, and if a contractor was challenging the law we would readily accept the reasoning of the United States Supreme Court, but here we have a New Mexico municipal corporation alleging injury in that the defendant has without investigation set an arbitrary wage scale to its injury, and that by reason of such action the order is void. It might be here stated there was no such challenge in the above cases. The wage scales involved in those cases were set by the Secretary after hearings. Here we have New Mexico's largest and fastest growing city, as a plaintiff, and it is a matter of common knowledge...