Highland Park Realty Company v. City of Tucson

• Decision Date: 24 June 1935
• Docket Number: Civil 3657
• Citation: 46 Ariz. 10,46 P.2d 641
• Parties: HIGHLAND PARK REALTY COMPANY, a Corporation, Appellant, v. CITY OF TUCSON, a Municipal Corporation, BRADLEY M. METCALF, Superintendent of Streets of the City of Tucson, and CHAS. C. IRVIN, City Treasurer of the City of Tucson, Appellees
• Court: Arizona Supreme Court

46 P.2d 641

46 Ariz. 10

HIGHLAND PARK REALTY COMPANY, a Corporation, Appellant, v. CITY OF TUCSON, a Municipal Corporation, BRADLEY M. METCALF, Superintendent of Streets of the City of Tucson, and CHAS. C. IRVIN, City Treasurer of the City of Tucson, Appellees

Civil No. 3657

Supreme Court of Arizona

June 24, 1935

APPEAL from a judgment of the Superior Court of the County of Pima. William G. Hall, Judge. Judgment affirmed.

Suit by the Highland Park Realty Company against the City of Tucson and others. From a judgment for defendants after demurrer to the complaint was sustained, plaintiff appeals.

Affirmed.

Messrs Mathews & Bilby and Mr. T. K. Shoenhair, for Appellant.

Mr. B G. Thompson, City Attorney, Messrs. Knapp, Boyle & Thompson and Mr. Edward P. Claine, for Appellees.

OPINION

LOCKWOOD, C.J.

Highland Park Realty Company, a corporation, hereinafter called plaintiff, brought suit against the city of Tucson, a municipal corporation, Bradley R. Metcalf, as its superintendent of streets, and Chas. C. Irvin, as its treasurer, hereinafter called defendants, to have certain assessment liens and bonds declared invalid, and to enjoin defendants from ever attempting to sell the lands of plaintiff under any of said liens. The facts set forth in the complaint were not denied by defendants, but a demurrer was filed which raised the questions of their sufficiency as a matter of law. The court sustained the demurrer, and plaintiff declining to amend the complaint, judgment was rendered in defendants' favor, and this appeal was taken.

The allegations of the complaint, briefly stated, are as follows: About the 5th day of September, 1933, the mayor and council of the city fo Tucson passed and adopted a resolution declaring their intention to improve West Speedway between Stone Avenue and Tenth Avenue in said city, and determining that bonds be issued by the city of Tucson to represent the costs and expenses thereof. Thereafter, and on the 2d day of October, the mayor and council adopted a resolution ordering the work to be done, and there was published an invitation for sealed bids or proposals for the improvement. The bids received were thereafter opened, and a contract to perform the work awarded to the firm of White & Miller, who completed the improvement in accordance with the terms thereof. Thereafter the superintendent of streets levied assessments, according to law, against the various lots within the assessment district created by the resolution. Plaintiff owned a number of lots in this district, and there were assessed against them on account of the improvements aforesaid various sums amounting all told to nearly $2,000. Notice was given of a public hearing on the assessment to afford opportunity to all interested parties, but it is not claimed that plaintiff at any time did protest or object to the proceedings. Thereafter a resolution was passed approving the assessment and all previous proceedings had thereunder, and bonds were ordered issued to pay for the cost and expenses of the improvement remaining unpaid. They were thereafter prepared and delivered to the contractors, but for some unstated reason are now in the possession of the city of Tucson. All of the aforesaid proceedings were done in strict conformity with the provisions of the state law and charter and ordinances of the city governing street improvements of the nature involved, and the assessments aforesaid were therefore apparently valid and authorized liens of record against the lots of plaintiff in the district, and affected their title, salability and mortgagability.

The complaint then alleged that the liens and the bonds, aforesaid, were in truth invalid for the reason that the notice inviting bids for the construction of the improvements contained the provision that the bidder must conform to the provisions of chapters 12 and 71, Session Laws 1933, commonly known as the Minimum Wage Laws, and that contracts would not be awarded to any bidders who did not agree to comply therewith, and set up in detail the minimum wages which would be required under the contract. In was further alleged that the schedule of wages above referred to was made a part of the contract actually entered into, and that it was greatly in excess of the wages and rates of pay which the contractors would have been compelled to pay if not restricted by the provisions of the contract, so that all bidders, including White & Miller, were by reason thereof compelled to bid a much higher price for the work than they otherwise imposing a lien on plaintiff's lots for a greater sum than otherwise would have been necessary.

It is plaintiff's contention that the Minimum Wage Laws are not applicable to special improvements made under the street improvement acts, and that the city had no legal authority to require that bids and contracts under such improvement acts should comply with them.

There are two questions of law before us for consideration: 1. Did plaintiff, by its failure to protest against the proceedings aforesaid, in the manner provided in sections 520, 526 and 535, Revised Code 1928, acquiesce in and ratify them? 2. Do the provisions of chapters 12 and 71, supra, apply to improvements made under the various street improvement acts, which are to be paid for by means of special assessments levied against the lands benefited?

This action, while in form applying only to the bonds for one particular street improvement district, was stated by counsel to be brought, in reality, for the purpose of determining the question of whether the Minimum Wage Laws apply to other subsequently contemplated street improvements. It is thus, in character, very similar to the numerous bond validation cases which we have had before us, and to which we referred in Maricopa County Municipal Water Conservation District No. 1 v. La Prade, 45 Ariz. 61, 40 P.2d 94. But unlike the large majority of suits of this class, in which both parties are anxious that the same result be reached by the court, and in which, either inadvertently or otherwise, only one side of the case is really fairly briefed and presented to us, counsel in the present case have obviously spent considerable time and effort in an attempt honestly and ingenuously to assist the court in determining properly all the questions which could arise in a suit of this nature. We commend their conduct in this behalf most highly, and urge it as a model to be followed by other counsel in subsequent proceedings of this nature.

So far as the right of the state to establish a Minimum Wage Law for labor on public works for itself or its political subdivisions is concerned, the law for Arizona has been determined by the cases of State v. Jay J. Garfield Bldg. Co., 39 Ariz. 45, 3 P.2d 983, and State v. Anklam, 43 Ariz. 362, 31 P.2d 888. We have also in the case of State v. Jaastad, 43 Ariz. 458, 32 P.2d 799, held that chapters 12 and 71, supra, apply not only to public work done directly for the state and its general political subdivisions, but also to municipal corporations organized under sections 2 and 3, article 13, of the Constitution, and commonly known as "Home Rule Cities." It is therefore not necessary to consider or discuss the general rule in other jurisdictions in regard to the constitutionality of Minimum Wage Laws applying to public work, direct or indirect. The only point which is open for consideration is whether, within the meaning of chapters 12 and 71, supra, work of the character involved herein is "public work." Upon examining the authorities, we find two lines of decisions. The first, cited to us by plaintiff, adopt the theory, in substance, that street improvements of the character in question are not public works, within the meaning of Minimum Wage Laws, but that they constitute work performed in reality for the benefit of and therefore by the owners of the land in the special improvement district benefited thereby, and that the municipality or state, in all the proceedings in regard to the work, is not acting for the public generally, but merely as an agent for the owners. Meyer v. Ring, 162 Ark. 9, 257 S.W. 388; Fitzgerald v. Walker, 55 Ark. 148, 17 S.W. 702; Winter v. Winter, 95 Neb. 335, 145 N.W. 709, 50 L.R.A. (N.S.) 697; Street v. Varney Electrical Sup. Co., 160 Ind. 338, 66 N.E. 895, 98 Am. St. Rep. 325, 61 L.R.A. 154; Wilson v. City of Atlanta, 164 Ga. 560, 139 S.E. 148; Genilla v. Hanley, 6 Cal.App. 614, 92 P. 752; Barber Asphalt Paving Co. v. Bancroft, 167 Cal. 185, 138 P. 742; Flinn v. Peters, 3 Cal.App. 235, 84 Pac. 995; Bohnv. Salt Lake City, 79 Utah 121, 8 P.2d 591, 81 A.L.R. 215.

The other cases hold that work of this character is public work, performed under the authority of the state or municipality for the benefit of the public in general, and the fact that the adjoining property is incidentally benefited more than other property thereby, and therefore made liable for the cost of the work, has nothing to do with the essential character thereof. Malette v. City of Spokane, 77 Wash. 205, 137 P. 496, Ann. Cas. 1915D 225, 51 L.R.A. (N.S.) 686; Byars v. State, 2 Okl.Cr. 481, 102 P. 804, 812, Ann. Cas. 1912A 765; Curtice v. Schmidt, 202 Mo. 703, 101 S.W. 61, 10 Ann. Cas. 702. The reasoning in Wagner v. City of Milwaukee, 177 Wis. 410, 188 N.W. 487, and Metropolitan Water Dist. v. Whitsett, 215 Cal. 400, 10 P.2d 751, also tends to support the second rule, though the cases last cited do not involve street improvements by special assessments.

Were...