Malette v. City of Spokane

• Citation: 77 Wash. 205,137 P. 496
• Court: United States State Supreme Court of Washington
• Decision Date: 31 December 1913
• Parties: MALETTE v. CITY OF SPOKANE.

137 P. 496

77 Wash. 205

MALETTE v. CITY OF SPOKANE.

Supreme Court of Washington, En Banc.

December 31, 1913

On rehearing. Rehearing granted. Judgment affirmed.

For former opinion, see 68 Wash. 578, 123 P. 1005.

Alex Winston, of Spokane, amicus curiae.

ELLIS J.

The facts out of which this controversy arose are stated in the opinion on the first hearing (68 Wash. 578, 123 P. 1005) but, in order to present a single, comprehensive review of the case, we deem it not amiss to restate them.

The Legislature, in 1899, passed an act declaring that 'hereafter, eight hours in any calendar day shall constitute a day's work on any work done for the state or any county or municipality within the state' (Rem. & Bal Code, § 6572), and provided that: 'All work done by contract or subcontract on any building or improvements or works on roads, bridges, streets, alleys, or buildings for the state, or any county or municipality within the state shall be done under the provisions of this act: Provided, that in cases of extraordinary emergency such as danger to life or property, the hours for work may be extended, but in such case the rate of pay for time employed in excess of eight hours of each calendar day, shall be one and one-half times the rate of pay allowed for the same amount of time during eight hours' service. And for this purpose, this act is made a part of all contracts, subcontracts or agreements for work done for the state or any county or municipality within the state.' Rem. & Bal. Code, § 6573. The act further declared any one violating its provisions guilty of a misdemeanor and, upon conviction, subject to a prescribed punishment. Rem. & Bal. Code, § 6574.

In 1903, another act was passed, declaring that 'it is a part of the public policy of the state of Washington that all work 'by contract or day labor done' for it, or any political subdivision created by its laws, shall be performed in work days of not more than eight hours each, except in cases of extraordinary emergency' (Rem. & Bal. Code, § 6575), and that all contracts for such work should provide that they might be canceled by the officers of the state, county, or city having supervision of the work, in case of a violation of the statute (Rem. & Bal. Code, § 6576), and making it the duty of such officers to incorporate in all such contracts stipulations 'as provided for in this act' and 'to declare any contract canceled, the execution of which is not in accordance with the public policy of this state as herein declared.' Rem. & Bal. Code, § 6577.

In pursuance of the public policy of the state so declared, the city of Spokane, on August 24, 1909, by Ordinance No. A4422, so far as here material, provided that:

'Section 1. Hereafter eight (8) hours in any calendar day shall constitute a day's work on any work done for the city of Spokane, subject to the conditions hereinafter provided.

'Sec. 2. Hereafter all laborers employed by the day on municipal work, either directly by the city or by contractors, subcontractors, individuals, partnerships, associations or corporations, on all work for the city, shall receive and be paid not less than $2.75 for a calendar day's work of eight (8) hours. The provisions of this section shall apply to, and govern all work done for the city of Spokane and all work for any individual, firm, partnership, association or corporation which is done under the direction or under the supervision of, or which is to be accepted by the city of Spokane or any officer or agent thereof.'

The ordinance further provided that, in cases of emergency, the hours for work might be extended, but that the rate of pay for excess time should be 1 1/2 times the rate allowed for the same amount of time during the eight hours' service and that the ordinance be made a part of all contracts thereafter made. By express stipulation and reference thereto, this ordinance was made a part of the contract for the public work the assessment for which is contested in this action.

On March 10, 1910, the city passed another ordinance, No. A5016, providing 'that hereafter all work done by common laborers for the city of Spokane or for any contractor, subcontractor or other person doing work by contract or otherwise for the city of Spokane, shall receive the sum of three dollars ($3.00) per day for eight hours labor,' and that the ordinance should be in force from and after April 1, 1910.

On March 25, 1910, the city council, by ordinance, provided for the improvement of Sixteenth avenue by constructing therein a sewer, to be paid for by special assessments against the property benefited, and created an assessment district. The contract for the work was thereafter let to one Broad, and, when he had completed the work thereunder, an assessment roll was prepared, and notice of the time and place for hearing objections was given. The appellant an owner of property in the district, appeared and objected to the confirmation of the roll. His objections were overruled, and he appealed to the superior court. From an adverse decision of that court, prosecutes this appeal.

The evidence showed that the contractor, in the performance of his contract, paid $2.75 a day for each common laborer employed in the work, as required by the ordinance first above mentioned and by his contract. The court refused to hear testimony as to whether he paid $3 a day as required by the second ordinance above mentioned. The evidence showed that the prevailing wage for common laborers in the city of Spokane and vicinity, at the time of the performance of the contract in August, 1910, was $2.25 a day, whether for a ten-hour, nine-hour, or an eight-hour day, and that in March, when the improvement ordinance was passed, the prevailing wage was $1.85 for a ten, nine, or eight hour day. There was no evidence whatever as to any distinction in pay by reason of shorter hours, nor any evidence whatever that compensation for employment was ever computed by the hour. The contractor testified that 59 per cent. of the cost of the work was paid out for common labor, and that, but for the ordinance, his bid would have been materially less.

The position taken by the appellant, as stated in the original opinion, and as adhered to in the briefs and argument on rehearing, is admirably summarized as follows: 'That the Legislature may fix the hours of labor upon all public works and for public work even in cities is now well settled, and no allusion to sustaining authority will be made. Indeed, that feature of the case is not challenged by appellant; but it is contended that, where the city is acting merely as an agent of the property owner, it is bound to do its work to his best advantage, and cannot empirically fix a wage and compel its payment by an independent contractor. Appellant bases his argument on two propositions: (1) That the ordinance is unreasonable, contrary to public policy, and oppressive; (2) that the assessment is in contravention of the Constitution of this state and of the Constitution of the United States, in that it takes the property of this appellant without compensation and without due process of law. Abandoning legal phraseology, the concrete question, put in plain English, is whether a city can improve the property of a citizen, either upon his petition or against his will, and tax an arbitrary sum therefor that puts the cost unreasonably above the cost of like work if done through the instrumentality of a private agency.' Malette v. Spokane, 68 Wash. 578, 580, 123 P. 1005, 1006. The last sentence quoted seems to beg, rather than state, the real questions. Of course, if the minimum wage is assumed to be unreasonably high, it would be indefensible on any theory, whether fixed by general statute or by ordinance and whether paid out of a fund raised by general taxation or by special assessment. The real questions are: (1) Is it within the power of any legislative body, whether of the state or city, to fix a minimum wage for common labor as applied to public work paid for by special assessment? In other words, is such legislation void as in contravention of the state and federal Constitutions, in that it takes property without compensation and without due process of law? (2) Is the ordinance in question contrary to any public policy of the state, either expressed in, or implied from, state legislation? (3) Is the ordinance an unreasonable exercise of the right to prescribe the terms of contract by one of the parties, or is the amount prescribed an unreasonable wage? We will endeavor to discuss these questions, so far as may be, separately.

1. Is it within the legislative power, either of state or city, to prescribe a higher rate of wages than the prevailing rate as a minimum of wages to be paid for common labor in the doing of a public work to be paid for by special assessments against the property specially benefited thereby? The principal argument directed against such laws, when enacted by the state itself, is the claim that they necessarily increase the cost of the work. If, therefore, laws having exactly the same tendency have been upheld, such decisions furnish direct authority for upholding a frank and undisguised minimum wage law. As stated in the original opinion it is now too well settled to require citation of authority that the Legislature may fix the hours of labor upon all public work and for public work, even in cities. It is also true, as there stated, that 'laws fixing the hours of labor, and providing that no less than the going rate of wages shall be paid under contracts such as we have before us, have been generally upheld.' To put the matter more exactly, we add that laws fixing the hours of labor have been generally upheld by the courts, even when coupled with...