Union School Dist. of Keene v. Commissioner of Labor

• Decision Date: 27 December 1961
• Citation: 176 A.2d 332,103 N.H. 512
• Parties: UNION SCHOOL DISTRICT OF KEENE et al. v. COMMISSIONER OF LABOR.
• Court: New Hampshire Supreme Court

Page 332

176 A.2d 332

103 N.H. 512

UNION SCHOOL DISTRICT OF KEENE et al. v. COMMISSIONER OF LABOR.

Supreme Court of New Hampshire.

Argued Oct. 17, 1961.

Decided Dec. 27, 1961.

Goodnow, Arwe & Ayer, Keene (Francis H. Ayer, Keene orally), for Union School District of Keene.

Richard R. Fernald and Thayer Fremont-Smith, City Sol., Keene, for City of Keene.

Gardner C. Turner, Atty. Gen., and William J. O'Neil, Asst. Atty. Gen., for defendant.

John W. King, Manchester (by brief and orally), for New Hampshire State Building Trades Council, amicus curiae.

LAMPRON, Justice.

RSA ch. 280 is entitled 'Minimum Wages of Employees in Public Works.' Section 1 provides in part as follows: 'The rate per hour of the wages paid to mechanics, teamsters, chauffeurs, and laborers employed in the construction of public works by the state of New Hampshire, or by a county or town * * * shall not be less than the rate or rates of wages to be determined by the commissioner of labor as hereinafter provided; provided, that the wages paid [to the above described employees] employed on said works shall not be less than the wages paid to said employees in the municipal service of the town * * * where said works are being constructed; provided, further * * * that if, in any of the towns where the works are to be constructed, a wage rate or wage rates have been established in certain trades and occupations by collective agreements or understandings between organized labor and employers, the rate or rates to be paid on said works shall not be less than the rates so established: provided, further, that in towns where no such rate or rates have been so established, the wages paid to said employees on public works, shall not be less than the wages paid in said towns to the employees in the same trades and occupations by private employers engaged in the construction industry'.

Section 2 provides in part that 'The commissioner shall prepare, for the use of such public officials or public bodies whose duty it shall be to cause public works to be constructed, a list of the several jobs usually performed on various types of public works upon which mechanics, teamsters, chauffeurs, and laborers are employed. * * * At least ten days before asking for bids the authorized department or agent prescribing specifications shall request the labor commissioner to ascertain the prevailing wage rate as provided in section 1. The labor commissioner shall immediately determine the prevailing wage rate in said city or town * * *. In advertising or calling for bids for said [public] works, the awarding official or public body shall incorporate said schedule in the advertisement or call for bids * * *. Said schedule shall be made a part of the contract for said works and shall continue to be the minimum rate or rates of wages for said employees during the life of the contract'.

Section 3 (Supp.) provides that 'within fifteen days after such wage rates shall be determined in accordance with the provisions of the preceding sections 1 and 2, such rates may be appealed * * * such appeal to be heard before a board of three * * * [it] shall fix a time and place for a public hearing thereon * * * [and] within forty-eight hours after adjournment * * * the board shall submit its decision in writing'.

The great weight of authority and the distinct trend of recent judicial decisions has recognized the authority of a state to prescribe minimum wages for employees of contractors engaged in the construction of public works. Metropolitan Water Dist. v. Whitsett, 215 Cal. 400, 413, 10 P.2d 751; 56 C.J.S. Master and Servant § 153, p. 746. The need and wisdom of this type of legislation is the proper concern of the Legislature. Baughn v. Gorrell & Riley, 311 Ky. 537, 542, 224 S.W.2d 436. Statutes such as RSA ch. 280, originally adopted in our state in 1941 (Laws 1941, ch. 118), may be vulnerable to attack if, as alleged by the District and the City, their administration amounts to an unlawful delegation of the Legislative prerogative. Ferretti v. Jackson, 88 N.H. 296, 302, 188 A. 474; Note, 47 Va.L.Rev. 828, 856.

'To avoid the charge of unlawfully delegated legislative power, the statute must lay down basic standards and a reasonably definite policy for the administration of the law.' Velishka v. Nashua, 99 N.H. 161, 167, 106 A.2d 571, 575, 44 A.L.R.2d 1406. Having done so, the Legislature may vest the executive directed to carry the law into effect with discretionary functions and authority. Conway v. Water Resources Board, 89 N.H. 346, 351, 199 A. 83.

RSA ch. 280 provides essentially that the minimum wage of certain specified employees in public works shall be the prevailing wage rate as determined by the Commissioner of Labor for each type of work covered by the act in said city or town. Section 2. The rate so fixed by the Commissioner shall not be less than the wages paid municipal employees for that type of work in the locality or in the town or city paying the highest rate if the work is to be in more than one municipality. Nor shall said rate be less than that established in said towns by...