Norris v. City of Lawton

• Decision Date: 13 April 1915
• Docket Number: Case Number: 6579
• Citation: 1915 OK 160,148 P. 123,47 Okla. 213
• Parties: NORRIS et al. v. CITY OF LAWTON et al.
• Court: Oklahoma Supreme Court

1915 OK 160

148 P. 123

47 Okla. 213

NORRIS et al. v. CITY OF LAWTON et al.

Case Number: 6579

Supreme Court of Oklahoma

Decided: April 13, 1915

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Paving of Street--Right to Prescribe Condition. The paving of the streets of a city is a work of a public character even when done by contract, and the city having control of its affairs as trustees for the public, may prescribe the terms and conditions upon which it will permit such work to be done on its behalf, when such terms and conditions do not violate any law or rule of public policy of the state.

2. SAME--Paving Contract- -Provision as to Wage Scale. A provision in a contract between a city and a contractor requiring said contractor to pay unskilled labor at the rate of 25 cents per hour, where it appears from the evidence that this amount was the current rate of wages in said city at the time the contract was entered into, is not violative of any constitutional or statutory provision, or contrary to any rule of public policy of this state.

3. SAME -- Improvements -- Assessment -- Irregularity in Sale of Bonds--Effect. The city of L. entered into a contract with S. to pave certain streets of said city and to take in payment therefor paving bonds of said city at par. After the execution of this contract, S. was unable to proceed with the work, and an arrangement was entered into whereby S. agreed to proceed with the work and accept the estimates of the city engineer at a discount of 10 per cent. from the face thereof, and the bonds were to be deposited in escrow and delivered to the purchaser in amounts not to exceed the amount of the various estimates as the work progressed, and said purchaser was to pay upon delivery of said installments of bonds drafts of the city for an amount equal to the face of said bonds so delivered, less 10 per cent. and the proceed of said draft were paid to the contractor, less 10 per cent., which was retained until the final completion of said work, and under this arrangement the work was completed, the entire issue of bonds delivered to the purchaser, and the contractor paid in full. Held, that the sale of the bonds was, at most, an irregularity which perhaps might have been enjoined, but did not defeat the jurisdiction of the city to make the improvement or render void the assessments levied to pay therefor.

4. SAME--Assessments--Injunction--Estoppel. When a city acquires jurisdiction by preliminary proceedings to pave certain of its streets, a property owner who stands by and sees such improvements made with the knowledge that the city authorities intend to levy and collect a special tax against his property and that those who do such work cannot be compensated in any other way, and offers no objection thereto until complete performance of the work has been made, cannot thereafter maintain an action to enjoin the collection of assessments against his property on the ground of alleged irregularities in the proceedings subsequent to the time that jurisdiction to perform such work had attached.

5. INJUNCTION--Motion to Dissolve Temporary Injunction--Dismissal of Petition. On a motion to dissolve a temporary injunction prior to the time the issues are made up, it is error to dismiss the petition, even though the temporary injunction should be dissolved.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Action by J. L. Norris and others against the City of Lawton and others. Judgment for defendants dissolving a temporary injunction and dismissing case, and plaintiffs bring error. Affirmed and remanded, with directions.

J. A. Diffendaffer, J. F. Thomas, and Burwell, Crockett & Johnson, for plaintiffs in error.

McElhoes, Ferris & Rinefort and Charles C. Black, for defendants in error.

HARDY, J.

¶1 The plaintiffs in error assign as grounds for reversal five separate assignments of error, which present for our consideration two propositions, as follows: (1) That the court erred in dissolving the temporary injunction theretofore issued in said case; and (2) the court erred in rendering final judgment and in dismissing the case.

¶2 Under the first proposition may be considered two separate reasons, which are urged for reversal of the order of the trial court in dissolving the temporary injunction, to-wit: (1) That the contract between the city and the contractor under which the paving in question was done is void because it provided for not less than 25 cents an hour to be paid to common laborers on the work; and (2) because the bonds issued to pay for said work were sold at less than par. If these two objections, or either of them, are well taken and render the proceedings void so as to defeat the assessments levied by the city of Lawton, then the court committed error in dissolving the temporary injunction; if not, then no error was committed.

¶3 In order to determine whether the contract is void because of the provision therein requiring that common laborers be paid not less than 25 cents per hour, it is necessary to consider the legislation in this state upon this question. Section 3757, Rev. Laws 1910, commonly known as the "Eight Hour Law," provides that:

"Eight hours shall constitute a day's work for all laborers, workmen, mechanics, prison guards, janitors of public institutions or other persons now employed, or who may hereafter be employed by or on behalf of the state, or by or on behalf of any county, city, township or other municipality. * * * 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, mechanics, prison guards, janitors in public institutions, or other persons so employed by or on behalf of the state, or any county, city, township or other municipality, and laborers, workmen, mechanics, or other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state, or with any county, city, township, or other municipality thereof, shall be deemed to be employed by or on behalf of the state, or of such county, city, township, or other municipality."

¶4 The constitutionality of this statute was sustained in the case of Byars v. State, 2 Okla. Crim. 481, 102 P. 804, Ann. Cas. 1912A, 765, in an opinion by Doyle, J. The court in this opinion says:

"The manifest purpose of this provision is to promote the industrial welfare of the people by fixing a high standard for employees on public work. The statute in question is clearly calculated to promote the purpose of public policy of the state as expressed in the Constitution, and does not restrict or interfere with the right or liberty of the employee and employer to contract, and can only be regarded as a direction by a principal to his agent, and therefore as a matter of consideration to the principal and agent only. Oklahoma as a sovereign state is no less free as a party to contract than any person in the state, and the lawmaking power has the right to provide that contracts made by the state or any agent of the state shall be executed in conformity with the requirements of the Constitution and the statute."

¶5 Similar legislation has been upheld in the following cases: Holden v. Hardy, 169 U.S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780; State v. Atkin, 64 Kan. 174, 67 P. 519, 97 Am. St. Rep. 343; Atkin v. Kansas, 191 U.S. 207, 24 S. Ct. 124, 48 L. Ed. 148; Ellis v. U. S., 206 U.S. 246, 27 S. Ct. 600, 51 L. Ed. 1047, 11 Ann. Cas. 589; Short v. Min. Co., 20 Utah 20, 57 P. 720, 45 L. R. A. 603; People v. Warren, 77 Hun 120, 28 N.Y.S. 303.

¶6 In the case of Byars v. State, supra, it is further said in the opinion:

"The Constitution of Oklahoma expressly reserves to the state control over all public highways, including the roads, streets, and alleys of its municipalities. The opening, construction, and maintenance of public highways is purely a governmental function, whether done by the state directly or by one of its municipalities, for which the state is primarily responsible, and it is immaterial whether such public work is paid for by the state, the county, the city, or by the benefited property owners. It is a work of a public, not private, character. The manner of payment does not change the character of work."

¶7 See, also, Atkin v. Kansas, supra.

¶8 There is no question presented in this case as to the right of an employer and an employee in private work to contract upon any terms they may see fit, but the question here presented is the right of the state to prescribe terms and conditions upon which public works performed by it or by contractors working under contract with the state or some municipal subdivision thereof may be done. The contention is made that this provision in the contract destroys the element of competition, and compels each and all of those bidding on the work to figure the wages of common laborers at not less than 25 cents per hour for eight hours a day, and that by reason thereof the contract is illegal and void. This by no means follows. The provision in the statute requiring that eight hours shall constitute a day's work may be said in a certain sense to have a tendency towards increasing the wages paid to laborers. As an illustration, if $ 2 be the current rate of wages for a day's work consisting of ten hours, it will readily be seen that 20 cents per hour would be the sum earned by the laborer; while if the day's work be limited to eight hours, and the current rate of wages be paid, as required by statute, the laborer would receive $ 2 for eight hours' work, or 25 cents per hour. The same objection could be urged to the statute as is urged to the contract in question. The right of the state to impose conditions upon which public work shall be done seems now to be well established, and it is seen that it makes no difference whether the work is performed by the state directly or through one of its agencies, or through the medium of a contractor. Ellis v....