Vail v. Denver Bldg. & Const. Trades Council

• Decision Date: 23 June 1941
• Docket Number: 14951.
• Citation: 108 Colo. 206,115 P.2d 389
• Parties: VAIL, State Highway Engineer, v. DENVER BLDG. & CONST. TRADES COUNCIL et al.
• Court: Colorado Supreme Court

115 P.2d 389

108 Colo. 206

VAIL, State Highway Engineer, v. DENVER BLDG. & CONST. TRADES COUNCIL et al.

No. 14951.

Supreme Court of Colorado, En Banc.

June 23, 1941

Error to District Court, City and County of Denver; Joseph J Walsh, Judge.

Action by the Denver Building and Construction Trades Council, a voluntary association, and the Colorado State Federation of Labor, a voluntary organization, against Charles D. Vail State Highway Engineer, A. S. Horner and Maude Brewer, doing business as A. S. Horner, N.M. Monaghan and J. H. Monaghan to restrain the defendants from entering into any contracts or from proceeding in the execution or consummation of any contract for the construction of a highway project until the prevailing rates of wages should be fixed as by law required. The district court concluded that a dispute existed as to the applicable prevailing wage scale, and remanded the matter to the Industrial Commission for determination of such, and enjoined the commencement of labor on the highway project and Charles D. Vail, State Highway, Engineer, brings error joining his codefendants as defendants in error.

Cause remanded to the district court, with directions to dismiss the complaint.

HILLIARD, J., dissenting.

Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Oliver Dean, C. H. Anderson, and George K. Thomas, Asst. Attys. Gen., and R. Hickman Walker, Sp. Atty. Gen., for plaintiff in error.

Philip Hornbein and Philip Hornbein, Jr., both of Denver, for defendant in error Denver Bldg. & Const. Ass'n and another.

F. E. Dickerson, T. J. Morrissey, and C. D. Bromley, all of Denver, for defendant in error, A. S. Horner and others.

KNOUS Justice.

Alleging that a dispute existed concerning the rates of wages to be paid workmen on a certain highway project for the construction of which bids had been invited through advertisement by the plaintiff in error Vail, as state engineer, the defendants in error labor unions, in the district court, as plaintiffs, sought to restrain Vail and the defendants in error Horner, Brewer and Monaghan, whom the plaintiffs identified as the low bidders on the project, from 'entering into any contracts or from proceeding in the execution or consummation of any contract' for the construction until the prevailing rates of wages should be fixed as by law required. Following a hearing, the district court, although finding that the contract for the construction had been awarded to Horner and others, as they and Vail alleged, nevertheless concluded that a dispute existed as to what was the applicable prevailing wage scale, remanded the matter to the Industrial Commission for the immediate determination of such and ordered that if the inquiry should disclose that the wage scales contained in the bids and the invitation therefor were less than the prevailing local rates for work of a similar nature, the state should pay the excess differential. The court also enjoined the commencement of labor on the project and it is agreed that no workman has ever been employed thereon. Following such judgment plaintiff in error Vail alone sued out a writ of error in this court to review the adjudication. His codefendants below were consequently here joined as defendants in error.

Concededly the rights asserted in the complaint, the remedies sought to be invoked thereby, and the redress attempted by the judgment of the district court were grounded solely on section 257, chapter 97, '35 C.S.A. (§ 1, chapter 124, S.L.1933), relating to the rates of wages on public works.

During the pendency of the review proceedings in this court the Thirty-Third General Assembly enacted, and the Governor approved, effective by an emergency clause as of April 15, 1941, House Bill 992, (S.L. '41, c. 166, § 1) amending section 257, supra, and repealing all provisions of the original section in conflict with the new. Soon thereafter in this court Vail and the contractors interposed a motion to dismiss the complaint upon the ground that the entire controversy had been rendered moot by such amendment and repeal of what herein we shall designate as original section 257, supra. This motion was orally argued to a department of this court. However, since one of the contentions raised in the argument of counsel for the unions, supported by briefs coincidentally filed, was based upon a provision of the Constitution, hereinafter to be mentioned, the case has been considered by the court en banc. This study has convinced us that the motion to dismiss must be sustained and accordingly as nearly as is consistent with clarity, we shall limit our discussion of the controversy to this question alone.

Original section 257 prescribed that every contract in excess of $5,000 to which the State of Colorado was a party and which required the employment of laborers and mechanics on public works, including highway construction, should provide that the rate of wages for the laborers and mechanics employed thereunder, should be not less than the prevailing rate of wages for work of a similar nature in the locality involved. The section further stipulated that the prevailing rates of wages should be stated in the invitation for bids and included in the bids for the work and that in case any dispute arose as to what were the prevailing rates, which could not be adjusted by the contracting official, the matter should be referred to the Industrial Commission for determination. The section as amended eliminates the previous requirement that the locally prevailing rate of wages should be paid on highway construction contracts and in contrast, in minute and specific detail, sets out schedules of minimum rates of wages applicable in various sections of the state for 'workmen, mechanics and laborers' employed by parties holding contracts with the state highway department. By deletion in the above particulars the new act withdrew the previously conferred jurisdiction of the Industrial Commission to establish minimum rates of wages for highway construction contracts under any circumstance whatsoever and imposed the legislative rates, which, incidentally are identical with the scale advertised by Vail in the instant case, as the sole criterion of the wages to be paid on such. Unquestionably, both statutes were purposed to legislatively declare the public policy of the state on the subjects covered.

It is conceded by all parties, as is apparent from the act itself, that House Bill 992 contains no express saving clause as to pending matters, inchoate rights or issues in litigation.

As is evident from even this brief summary of the terms of the new law, the validity of which is herein unquestioned, the precise right claimed by the plaintiff, i. e., that workmen on contracted state highway construction be paid wages at a rate not less than the prevailing local wage for work of a similar nature and the remedy herein invoked, i. e., the jurisdiction of the Industrial Commission to determine the same in case of a dispute with the contracting official, no longer exist in Colorado as to contracts awarded since the effective operative date of House Bill 992. Thus, here the only question is whether the new act operates to defeat a suit pending to enforce the right and remedy so legislatively taken away. 'The general rule is that powers derived wholly from a statute are extinguished by its repeal. * * * And it follows that no proceedings can be pursued under the repealed statute, though begun Before the repeal, unless such proceedings be authorized under a special clause in the repealing act.' Flanigan v. Sierra County, 196 U.S. 553, 25 S.Ct. 314, 315, 49 L.Ed. 597. In Endlich on Interpretation of Statutes, pages 683, 684, sections 479, 480, it is stated: 'Wherever the jurisdiction exercised in proceedings depends wholly upon statute, and the statute is repealed, * * * the jurisdiction is gone, and with it the whole proceeding, imperfect at the time of the repeal or expiration, falls to the ground, unless there be a reservation as to pending rights or causes. * * * The same rule applies to rights and remedies founded solely upon statute, and to suits pending to enforce such remedies. If, at the time the statute is repealed, the remedy has not been perfected or the right has not become vested, but still remains executory, they are gone.' See, also, Lewis' Sutherland on Statutory Construction, vol. 1, page 550, section 285. The case of Harrison v. Smith, 2 Colo. 625, is in accord with the foregoing. The rule as above stated is supported by a legion of authorities, among which are Moss v. Smith, 171 Cal. 777, 155 P. 90; McNabb v. President, etc., of Village of Tonica, 103 Ill.App. 156; Wilson v. Head, 184 Mass. 515, 69 N.E. 317.

Counsel for the unions do not seriously question that the law on the subject under consideration is as above stated, but contend that the destructive effect of the repeal on the incomplete proceeding at bar is avoided by the general saving clause contained in section 4, chapter 159, '35 C.S.A. They further assert that the prohibition against retrospective legislation contained in section 11, article II of the Constitution operates as a saving clause incorporated into the new repealing act. Section 4, supra, specifies that the amendment or repeal of any statute shall not have the effect to release, extinguish, modify or change in whole or in part any penalty, forfeiture or liability, either civil or criminal, which shall have been incurred under such statute and the act so amended or repealed shall be treated as still remaining in force for the purpose of sustaining all proper proceedings for the enforcement of such penalty, forfeiture or liability unless the new statute expressly provides to the contrary. This general...