Louisiana Associated General Contractors, Inc. v. Calcasieu Parish School Bd.

• Decision Date: 21 June 1991
• Docket Number: 91-C-0109,Nos. 91-C-0106,s. 91-C-0106
• Citation: 586 So.2d 1354
• Parties: LOUISIANA ASSOCIATED GENERAL CONTRACTORS, INC., et al. v. The CALCASIEU PARISH SCHOOL BOARD. 586 So.2d 1354, 122 Lab.Cas. P 57,050, 70 Ed. Law Rep. 715
• Court: Louisiana Supreme Court

Page 1354

586 So.2d 1354

LOUISIANA ASSOCIATED GENERAL CONTRACTORS, INC., et al. v. The CALCASIEU PARISH SCHOOL BOARD Nos. 91-C-0106, 91-C-0109.

586 So.2d 1354, 122 Lab.Cas. P 57,050, 70 Ed. Law Rep. 715

Supreme Court of Louisiana.

June 21, 1991.

Rehearing Denied Sept. 5, 1991.

Dissenting Opinion of Judge Dennis

Sept. 25, 1991.

Nancy Picard, Louis L. Robein, Jr., Gardner, Robein & Urann, Metairie, for applicants.

Edward J. Fonti, Jones, Tete, Nolen, Hanchey, Swift & Spears, Lake Charles, W.P. Wray, Jr., Christopher P. Pierce, Wray & Kracht, Charles W. Roberts, Baton Rouge, Lester A. Robertson, Lake Charles, for respondent.

COLE, Justice.

In this case we determine whether, under Louisiana law, the Calcasieu Parish School Board may specify that all contracts awarded on its public works projects contain a prevailing wage rate provision.

I. FACTS AND PROCEDURAL HISTORY

During 1988 and 1989, the Calcasieu Parish School Board adopted and undertook a program of public works which involved the construction or repair of numerous school buildings in School District No. 22. Included in the specifications for these public works projects was a provision requiring all contractors and subcontractors to pay all workmen, mechanics and laborers wages not less than those established and stated in Prevailing Wage Rate Determination No. 14950, issued by the Louisiana Department of Labor on May 15, 1988.

On April 14, 1989, the Louisiana Associated General Contractors, Inc. ¹ (LAGC) and fourteen of its individual member contractors filed suit against the Calcasieu Parish School Board to enjoin the School Board from letting bids or awarding any public works contracts containing a requirement that prevailing wage rates be paid to the workmen employed on the projects. ² The plaintiffs also requested declaratory relief in the form of a judgment stating the School Board has no authority to require a prevailing wage provision in its public work contracts and the School Board's resolution requiring prevailing wage provisions violates Louisiana's Public Bid Law (La.R.S. 38:2211 et seq.).

Pursuant to Article 1091 of the Louisiana Code of Civil Procedure, the Southwest Louisiana Building Trades Council, AFL-CIO, intervened for the purpose of uniting with the School Board in resisting the plaintiffs' demands. Both the School Board and the Building Trades Council filed peremptory exceptions, raising the objection of no right of action, in which they alleged the named parties plaintiff lacked standing because they did not possess a personal or special interest separate and apart from that of the general public.

On May 9, 1989, after conducting a hearing on the preliminary injunction and the peremptory exceptions, the trial court found the plaintiffs had standing to seek injunctive relief. However, because the trial court felt the plaintiffs had failed to show irreparable injuries would result if an injunction did not issue, it denied the plaintiffs' request for a preliminary injunction. ³

Subsequently, the case was submitted for a decision based upon the facts as stipulated by all of the parties. Of importance, the School Board stipulated it was resolved to require the payment of prevailing wages on future public works projects. The trial court again found the individual contractors and the LAGC had standing to bring suit. ⁴ The court concluded the School Board, incident to its authority to build and repair schools, had the authority to include prevailing wage requirements in its bid specifications. The trial court also found the inclusion of prevailing wage requirements did not violate Louisiana's Public Bid Law.

By judgment dated December 12, 1990, the Court of Appeal, Third Circuit reversed. Louisiana Associated Gen. Contractors, Inc. v. Calcasieu Parish School Bd., 572 So.2d 623 (La.App. 3rd Cir.1990). The court found the prevailing wage rate provision violated the Public Bid Law because it "would tend to increase the cost of work and would tend to stifle competitive bidding." Id. at 627. The appellate court further found the School Board had no authority to require prevailing wage rates in its public works contracts.

Upon application of the School Board and the intervenor, we granted certiorari.

II. STANDING

We first determine the threshold issue of whether the plaintiffs have standing or a right to bring this suit. Stated differently, are they in the class of persons to whom the law affords this cause of action. The applicants contend the plaintiffs have failed to show a personal or special interest in the Board's action which is separate and apart from that of the general public. Accordingly, they contend the plaintiffs lack the requisite right or interest to sustain the present suit.

Because the applicants did not raise the issue of standing before the appellate court, the plaintiffs maintain they have abandoned the standing issue and should not be allowed to resurrect it in this court. We disagree.

The peremptory exception, here raising the objection of no right of action (standing), may be pleaded in any court prior to submission of the case for decision if proof of the ground of the exception appears of record. La.Code of Civ.Proc. arts. 927 & 2163. Articles of our code of civil procedure are to be construed liberally and with due regard for the fact that forms of procedure implement the substantive law and are not an end in themselves. La.Code of Civ.Proc. art. 5051; Lambert v. Donald G. Lambert Const. Co., 370 So.2d 1254 (La.1979). Consequently, we now consider the applicants' argument that the plaintiffs have no right of action or interest to institute this suit.

Article 681 of the Louisiana Code of Civil Procedure provides in pertinent part, "[A]n action can be brought only by a person having a real and actual interest which he asserts." In their petition, the plaintiff-respondents asserted their interest in the outcome of this suit as follows:

31.

The Lake Charles District Members of the Louisiana Associated General Contractors, Inc., each individually, desire to and will submit bids to the School Board for public works contracts let by the School Board pursuant to the Public Bid Law, including but not limited to the projects listed in Exhibit 1.

32.

Plaintiffs, Lake Charles District Members of the Louisiana Associated General Contractors, Inc., each individually, are taxpaying citizens of this State and the Parish of Calcasieu. The minimum and prevailing wage requirements adopted by the School Board will increase the tax burden on the Lake Charles District Members of the Louisiana Associated General Contractors, Inc.

33.

The Louisiana Associated General Contractors, Inc. is a taxpaying citizen of the State of Louisiana and the Parish of Calcasieu. The minimum and prevailing wage requirements adopted by the School Board will increase the tax burden on the Louisiana Associated General Contractors, Inc.

Our jurisprudence recognizes the right of a taxpayer to enjoin unlawful action by a public body. Under Louisiana law, a taxpayer may resort to judicial authority to restrain public servants from transcending their lawful powers or violating their legal duties in any unauthorized mode which would increase the burden of taxation or otherwise unjustly affect the taxpayer or his property. Stewart v. Stanley, 199 La. 146, 5 So.2d 531 (1941). The fact that the taxpayer's interest may be small and insusceptible of accurate determination is not sufficient to deprive him of the right. Id.

In League of Women Voters of New Orleans v. City of New Orleans, 381 So.2d 441 (La.1980), we refined our previous standard and held a taxpayer will not be allowed to compel the performance of a public duty by mandamus absent a showing of some special interest which is separate and distinct from the interest of the public at large. We specifically stated, "Without a showing of some special interest in the performance sought of a public board, officer or commission which is separate and distinct from the interest of the public at large, plaintiff will not be permitted to proceed." Id. at 447.

The requirement that a plaintiff in a mandamus proceeding demonstrate a "special interest" in the action was imposed to insure a fair presentation and development of the issues by truly adverse parties. Without a showing of such a personal and special interest in mandamus cases, we feared interference by the judiciary would surpass the authority allocated by the tripartite system.

In League of Women Voters we were careful to point out that unlike a citizen attempting to compel the performance of a public duty, a citizen attempting to restrain unlawful action by a public entity is not required to demonstrate a special or particular interest distinct from that of the public at large. Consequently, taxpayer plaintiffs seeking to restrain action by a public body are afforded a right of action upon a mere showing of an interest, however small and indeterminable. ⁵ See Woodard v. Reily, 244 La. 337, 152 So.2d 41 (1963); Stewart v. Stanley, supra.

The plaintiffs herein seek declaratory and injunctive relief. They clearly are attempting to restrain action by the Calcasieu Parish School Board. Consequently, in order to have standing they are not required to demonstrate a personal or special interest which is separate and distinct from the interest of the general public. They must merely assert a real and actual interest in the action before we will entertain their suit.

The applicants correctly argue that although the plaintiffs alleged and proved they are residents and taxpayers of Calcasieu Parish contributing to the fund used to pay for projects of the School Board, the facts as stipulated by the parties do not sufficiently prove the plaintiffs' allegation that the Board's action would, with certainty, increase their tax burden. ⁶ However, proof of an increased tax burden is not the only method by which a taxpaying citizen may seek...