Stover v. Winston Bros. Co.

• Decision Date: 20 March 1936
• Docket Number: 25832.
• Citation: 185 Wash. 416,55 P.2d 821
• Parties: STOVER v. WINSTON BROS. CO.
• Court: Washington Supreme Court

55 P.2d 821

185 Wash. 416

STOVER v. WINSTON BROS. CO.

No. 25832.

Supreme Court of Washington

March 20, 1936

Department 1.

Appeal from Superior Court, King County; Hugh Todd, Judge.

Action by Harry R. Stover against the Winston Brothers Company. Judgment for plaintiff, and defendant appeals, and the plaintiff cross-appeals.

Affirmed.

Evans &amp McLaren and J. Speed Smith, all of Seattle, for Winston Bros co.

Vanderveer & Bassett, of Seattle, for Harry R. Stover.

TOLMAN, Justice.

This is an action to recover wages for work performed by the plaintiff, and a large number of other workmen whose claims were assigned to him, in the construction of the 'Diablo Dam' pursuant to a contract between the defendant corporation and the city of Seattle.

The case was tried to the court sitting without a jury resulting in findings and conclusions favorable to the plaintiff and a judgment thereon for upwards of $70,000.

The defendant has appealed from that judgment and the plaintiff has cross-appealed upon a minor issue. For convenience therefore, we will refer to the parties as plaintiff and defendant.

We are confronted in this case with an enormous record which able counsel have discussed in 629 pages of printed briefs containing many skillfully constructed theories designed for the most part to convince us that plaintiff cannot recover at all. To discuss there theories severally and in detail, or even to clearly state each one of them, would manifestly be impossible within permissible limits, and we therefore must be content to set forth as lucidly as we may our theory of the case, buttressed with a few citations, and trust to its soundness to demonstrate that all theories leading to a different result must necessarily be unsound.

The facts in their general features are not in dispute and will be outlined as briefly as possible. In August, 1930, the city of Seattle, pursuant to ordinance, called for proposals for the construction of the dam in question and submitted to prospective bidders printed forms embodying plans and specifications for the work, together with a form of proposal to be used by the bidder and a form of contract to be entered into by the successful bidder. In these it was provided expressly that the laws of the state and the charter and ordinances of the city should be incorporated in the contract. The defendant submitted its proposal in the form required, which was accepted. On September 17, 1930, the formal contract was executed which, by its terms incorporated the provisions of the city charter and the city ordinances as to wages for labor and provided that the defendant's employees on the work should be paid not less than the current rate of wages paid by the city itself for work of like character. In the specifications, also made a part of the contract, was a provision reading: 'When possible, residents of the City of Seattle, are in all cases to have preference as employees upon the work.' The defendant, as required by the contract, gave a bond 'for the use of said city and also for the use of all persons who may perform or cause to be performed any work or labor--' conditioned upon the performance of the contract in accordance with its terms, but the surety was not made a party to this action.

During the time when the work was in progress, the ordinances of the city of Seattle fixed the wages of carpenters at $9 per day and building laborers, or carpenters' helpers, at $5.60 per day of eight hours and 1 1/2 times that rate for all time when men were employed in excess of eight hours in any calendar day and also on holidays. Notwithstanding all this, the defendant paid to carpenters on the work 80 cents per hour without any overtime allowance and to building laborers, or carpenters' helpers, 65 cents per hour without any overtime allowance.

The difference between the wages actually paid and the wages specified by the city ordinances and which were by the contract agreed to be paid was the basis upon which the trial court determined the amount of the recovery.

It seems to be conceded that the city had the power to construct this dam to serve its purposes, although far beyond and outside of its territorial limits.

Rem.Rev.Stat. § 8966, among other things, provides that a city of the first class, such as the city of Seattle, shall have power '3. * * * to acquire, by purchase or otherwise, such lands and other property as may be necessary for any part of the corporate uses provided for by its charter,' and '15. To provide for lighting the streets and all public places, and for furnishing the inhabitants thereof with gas or other lights, and to erect, or otherwise acquire, and to maintain the same, or to authorize the erection and maintenance of such works as may be necessary and convenient therefor, and to regulate and control the use thereof.'

Rem.Rev.Stat. § 9488, also authorizes any incorporated city to construct waterworks within or without its limits for the benefit of its inhabitants. Such powers have often been upheld by this court. State ex rel. Kent Lumber Co. v. Superior Court, 35 Wash. 303, 77 P. 382; Malett v. Spokane, 77 Wash. 205, 137 P. 496, 51 L.R.A. (N.S.) 686, Ann.Cas.1915D, 225; Langdon v. Walla Walla, 112 Wash. 446, 193 P. 1; Spokane v. Williams, 157 Wash. 120, 288 P. 258; Municipal League of Bremerton v. Tacoma, 166 Wash. 82, 6 P.2d 587; Blade v. La Conner, 167 Wash. 403, 9 P.2d 381, and State ex rel. City of Walla Walla v. Clausen, 157 Wash. 457, 289 P. 61, 63.

In the last-cited case is language which makes clear the principle upon which the present issues must be determined. It is there said: 'The rule that a municipal corporation cannot exercise its governmental authority outside its limits has nothing to do with the case at bar. While a city cannot exercise governmental authority outside its corporate limits, the municipality may exercise its right to own and use property for legitimate city purposes outside its boundaries.'

It is likewise conceded that the city may by ordinance fix and declare a public policy in the matter of wages and conditions of labor on public works which will be effective within its territorial limits. Smith v. Spokane, 55 Wash. 219, 104 P. 249, 19 Ann.Cas. 1220; Shepard v. Seattle, 59 Wash. 363, 109 P. 1067, 40 L.R.A. (N.S.) 647; Seattle v. Goldsmith, 73 Wash. 54, 131 P. 456; Spokane v. Spokane & Inland Empire Railroad Co., 75 Wash. 651, 135 P. 636.

We shall therefore cheerfully assume, for present purposes, that such an ordinance has no effect and cannot be enforced beyond and outside of the territorial limits of the city where enacted. So then, clearly, the city had the power to fix wages and working conditions upon public works within the city by ordinance and had exercised that power. The city was undertaking public works beyond its territorial limits, as it had a right to do, and by contract it undertook to fix wages and working conditions on such public works in harmony with a like situation within the city. The reasons for doing so and the advantages to be gained thereby are apparent. Labor for the construction of the dam was to be drawn largely from the city, and these contract stipulations strengthened and supported the public policy adopted by ordinance within the city, and, in addition thereto, would bring an increased flow of money from pay roll disbursement back to the city of Seattle. Also, the increased pay tended both directly and indirectly to advance the interests of the wage-earning classes resident within the city.

The city was prosecuting this work in its proprietary capacity, and, so far as we have discovered, when the city acts in the capacity, it has the same right and power to contract with reference to the subject that a private corporation or an individual would have under like circumstances. The city therefore had a right to insert in the contract any condition or conditions (not in themselves unlawful) which might be deemed beneficial or advantageous to it or to its citizens. The contractor, with full knowledge, accepted and agreed to the conditions dictated by the city and on those conditions the contract price to be paid to the contractor was fixed. It would seem that the contractor, by reason of these facts, is not now in a position to question the power of the city or to repudiate the terms of the contract. Certainly, the contractor may not now assert that his constitutional right to contract upon the matter of wages has been impaired. The constitutional right freely to contract was exercised by the contractor when the contract with the city was executed, and having thus contracted to pay wages at certain rates, the contractor may not complain because thereafter he could not lawfully violate the conditions to which he had already agreed by procuring laborers to work for less than the agreed compensation.

The case of Moran v. Thompson, 20 Wash. 525, 56 P. 29, read in connection with the provisions of the city charter fixing the powers of the board, seems to rather conclusively answer the contention that the board of public works had no power to insert the minimum wage clause in the contract, but if that case is not conclusive, still, after the work had been completed and paid for and the contractor had obtained all of the benefits flowing to him from the contract, surely he is estopped from now asserting any such lack of authority.

But, it is urged that in any event the workmen are not third parties for whose benefit the contract was made, and that none of them can now maintain a suit thereon.

Article XXIII of the city charter provides in section 1: 'In all public works done by or for the city, either by day's work or by contract, eight hours shall constitute a day's work. * * *'

And in ...