Harlan v. Employers' Ass'n of Maryland

• Decision Date: 03 March 1932
• Docket Number: 104.
• Citation: 159 A. 267,162 Md. 124
• Parties: HARLAN ET AL. v. EMPLOYERS' ASS'N OF MARYLAND ET AL.
• Court: Maryland Court of Appeals

159 A. 267

162 Md. 124

HARLAN ET AL. v. EMPLOYERS' ASS'N OF MARYLAND ET AL.

No. 104.

Court of Appeals of Maryland

March 3, 1932

Appeal from Circuit Court No. 2 of Baltimore City; Samuel K. Dennis Judge.

Suit by the Employers' Association of Maryland and others against Henry D. Harlan and others. From an order overruling a demurrer to the second amended bill of complaint, defendants appeal.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, PARKE, and SLOAN, JJ.

Allen A. Davis, Asst. City Sol., of Baltimore (R. E. Lee Marshall City Sol., of Baltimore, on the brief), for appellants.

J Purdon Wright, of Baltimore, for appellees.

SLOAN J.

This appeal is from an order overruling a demurrer of the mayor and city council of Baltimore to a taxpayer's second amended bill of complaint to enjoin the enforcement of an order of the board of estimates of Baltimore city, adopting a wage scale for municipal contracts. The bill of complaint was filed by a large number of persons representing themselves to be citizens, residents, and taxpayers of the city of Baltimore, many of whom are "architects, general contractors and builders, who from time to time contract for, engage in and perform most of the important building work of the city of Baltimore, including municipal construction work." The bill alleges that on May 13, 1929, the mayor of Baltimore city appointed a committee to advise him as to the meaning of the phrase "current rate of per diem wages in the locality where the work is performed," as contained in section 516 of the Baltimore City Charter, 1927 Ed. Act of 1910, chapter 94, § 2, Code of Public Local Laws, article 4, § 516.

In pursuance of their appointment, the committee on December 27, 1929, filed a report with the mayor, wherein was set out in detail a scale of wages for foremen, mechanics, and helpers, which it recommended "that the city should regard as the 'current rate per diem wages in the locality' less than which it shall not pay for work done by it or in its behalf," and recommended "that the foregoing rates shall be in effect until June 30th, 1930 and that they shall thereafter be renewed or modified for a term of one year, as may be determined by the Mayor of Baltimore." The report was adopted by the board of estimates June 3, 1930, effective from July 1, 1930, to December 31, 1930, and the scale continued from time to time until December 31, 1931. On August 11, 1930, an order was issued by the building engineer of Baltimore warning all contractors doing work for the city of Baltimore that they would be required to pay their employees the rates of wages recommended by the "Current Rate Wage Arbitration Committee."

The prayers of the bill are to restrain (a) the public improvement association, the board of awards, the department of public works, the chief engineer, the building engineer, and the mayor and city council of Baltimore from carrying into effect the resolution of the board of estimates adopting the schedule of wages so recommended; (b) to restrain the public improvement association and the board of awards from requiring contractors or subcontractors from estimating and/or paying the scale of wages so prescribed in the execution of any contracts for any public work in the city of Baltimore; and (c), to restrain the defendants from carrying into effect the minimum wage scale so recommended by the committee and adopted by the board of estimates.

The defendants demurred generally to the bill of complaint, and assigned nine reasons why the bill should not be entertained, but, as they are to the effect that the adoption of a minimum wage scale for contractors on public work in Baltimore is valid, and that the plaintiffs show no special damage, it is not necessary to here set out the grounds of demurrer in detail.

The only provision of the charter of Baltimore involved in this controversy, and the one that gives or does not give the city or any of its officers or agencies the power to fix a minimum wage scale for contractors and subcontractors contracting with the city for public work, is section 516, Act of 1910, chapter 94, Code of Public Local Laws, article 4, § 516, which reads: "That eight hours shall constitute a day's work for all laborers, workmen or mechanics who may be employed by or on behalf of the Mayor and City Council of Baltimore, except in cases of extraordinary emergency which may arise in time of war or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life; provided, that in all such cases the laborer, workman or mechanic * * * shall be paid on the basis of eight hours constituting a day's work; provided further, that the rate of per diem wages paid to laborers, workmen or mechanics employed directly by the Mayor and City Council of Baltimore shall not be less than two dollars per diem; provided further, that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen or mechanics employed by contractors or subcontractors in the execution of any contract or contracts, in any public work within the City of Baltimore."

The statute, a construction of which is now asked, has been before this court on three former occasions, but the questions then presented did not involve the right of the city to insert a wage scale in contracts with those contracting to do public work. In Sweeten v. State, 122 Md. 634, 90 A. 180, and in Elkan v. State, 122 Md. 642, 90 A. 183, affirmed by memorandum decision in 239 U.S. 634, 36 S.Ct. 221, 60 L.Ed. 478, the defendants (appellants) were indicted for violation of the eight-hour law and minimum wage provisions of the statute. In the third case, Ruark v. International Union of Engineers, 157 Md. 576, 146 A. 797, an injunction was prayed by the plaintiffs, a labor union, and certain citizens and taxpayers, to restrain the appellants, contractors, from requiring or permitting any of their workmen to work more than eight hours a day in the performance or execution of contracts between them and the mayor and city council of Baltimore. In the Ruark Case it was declared that the act was constitutional, in that the wages or market value of labor in the "locality" as designated in the statute was capable of ascertainment, and not so indefinite, vague, and uncertain as to amount to a denial of due process to one charged with its violation, as held by the Supreme Court of the United States in Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, the statute there construed being state-wide in its application, while in this case the "locality" is confined to the limits of Baltimore city. Campbell v. New York City, 244 N.Y. 317, 155 N.E. 628, 50 A. L. R. 1473, 1479. In the Ruark Case it was held that the statute could not be enforced by injunction, and that, its violation being a misdemeanor punishable by fine, recourse could only be had to the processes of the criminal courts against those so charged, and that, the plaintiffs having shown no special damage not suffered by the public generally, they could not maintain their suit.

It is provided by section 516 of the city charter that contractors and subcontractors, in the execution of any contract or contracts in any public work within the city of Baltimore shall pay to their laborers, workmen, or mechanics so engaged by them not less than the current rate of per diem wages in the locality where the work is performed, and by section 516B is prescribed the...