Wagner v. City of Milwaukee

• Decision Date: 14 June 1922
• Docket Number: No. 138.,138.
• Citation: 177 Wis. 410,188 N.W. 487
• Parties: WAGNER v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

177 Wis. 410

188 N.W. 487

WAGNER

v.CITY OF MILWAUKEE ET AL.

No. 138.

Supreme Court of Wisconsin.

June 6, 1922.

Dissenting Opinion June 14, 1922.

Appeal from Circuit Court, Milwaukee County, John J. Gregory, Judge.

Action by Herman A. Wagner against the City of Milwaukee and others. Judgment for defendants upon demurrer, and plaintiff appeals. Reversed.

Plaintiff, as resident taxpayer for himself and others, sued to restrain the enforcement of an ordinance and a resolution in compliance therewith of the city of Milwaukee purporting to fix a minimum wage scale in said city.

The complaint in substance shows the official capacity of the individual defendants in connection with the defendant city of Milwaukee. It recites the adoption September 26, 1921, by the common council of the defendant city of an ordinance the material parts of which are as follows:

“Sections 562.1, 562.2 and 562.3 of the Milwaukee Code of 1914 are amended to read:

Sec. 562.1. Hereafter all laborers employed in any work done by the city or for the city of Milwaukee by any contractor or subcontractor performing work for the city, either new construction work or repair work, on any roads, bridges, sewers, streets, alleys, buildings or any public work, shall receive and be paid a sum of not less than that paid by the city for such laborers by direct employment for a day's work of eight hours.

Sec. 562.2. Hereafter all skilled laborers employed on any work done by or for the city or for any contractor or subcontractor performing work for the city on any building or improvement, or work on roads, bridges, sewers, alleys, buildings or other public work, shall be paid a sum which shall not be less than the prevailing wage in this city for such skilled labor; said prevailing wage to be determined by the wage paid to members of any regular and recognized organization of such skilled laborers for such skilled labor, which prevailing wage shall be the minimum price paid to all skilled laborers hereafter employed to do the work herein specified, provided such prevailing wage shall first be determined and approved by a majority vote of the members of the common council and provided that in no case shall such scale of wages be less than that paid by the city for such skilled labor by direct employment for a day's work of eight hours and for this purpose all ordinances pertaining to labor are hereby made a part of all specifications, contracts, subcontracts and agreements hereafter made, let and submitted by the city of Milwaukee.

Sec. 562.3. The purpose of sections 562, 562.1 and 562.2 is to insure a better class of workmanship on all city work. With reference to a minimum wage and to the payment of the prevailing rate of wage to skilled laborers, sections 562, 562.1 and 562.2 shall apply to such contract work as is hereafter let, and neither sections 562, 562.1 nor 562.2 is passed as an inducement for the enactment of either of the others. * * *”

That, pursuant thereto, a certain resolution was passed as follows:

“Resolved by the common council of the city of Milwaukee that, pursuant to the provisions of an ordinance passed by the common council on the 6th day of September, 1921, relating to the standards and requisites of labor employed in all public work, the scale of wages of all skilled labor employed in all public work shall be as follows: Electrical mechanics, $1.00 per hour. Asbestos workers, 85 cents per hour. Bricklayers and masons, $1.00 per hour. Building laborers, 65 cents per hour. Carpenters and millwrights, 85 cents per hour. Pile drivers, 75 cents per hour. Cement finishers, $1.00 per hour. Elevator constructors, $1.00 per hour. Iron workers, $1.00 per hour.”

Then follows a list of about 38 specified employments with prices fixed and varying from 65 cents to $1.25 per hour respectively.

It is further alleged that the ordinance is void and unconstitutional as being a delegation of the legislative function of the common council to labor unions or organizations, and because in violation of the charter of the said city of Milwaukee providing that all public contracts are to be let to the lowest bidder; that the city threatens to enforce said ordinance; and that contracts to which such ordinance would apply and to be let by the city of Milwaukee during the course of the following year would require at least $2,000,000 to be paid in wages; that the prevailing wage scale as set forth in said resolution is and will continue to be at least 25 per cent. in excess of the actual real prevailing wages in the city of Milwaukee and vicinity in the trades mentioned and for which work could be done and contracts let; that the enforcement of such ordinance will be contrary to the general welfare of the city, will result in a monopoly of organized labor in all work done by or for the city, will discriminate against a large number of taxpayers in the said city having equal rights with the members of labor organizations in the premises, and that it is class legislation and violating the constitution of Wisconsin and of the United States and particularly section 1, art. 14, of the Amendments; that plaintiff is without adequate remedy at law.

The judgment prayed was that such ordinance be declared null and void and the defendants and all of them enjoined and restrained from enforcing or attempting to enforce the same. Defendants' demurrer was sustained, and upon plaintiff's refusal to amend his complaint judgment of dismissal was entered, from which plaintiff appealed.

Owen, Doerfler, and Crownhart, JJ., dissenting in part.Lamfrom & Tighe, of Milwaukee (Leon B. Lamfrom, of Milwaukee, of counsel) for appellant.

John M. Niven, City Atty. and Charles W. Babcock, Asst. City Atty., both of Milwaukee, for respondent.

Quarles, Spence & Quarles, J. V. Quarles, and Bottum, Hudnall, Lecher & McNamara, all of Milwaukee, amici curiæ.

ESCHWEILER, J. (after stating the facts as above).

Two questions are here presented:

First. May a common council fix and determine what shall be a minimum prevailing wage scale to be paid by the city to its own employés and also require its contractors to pay their employés such rate?

Second. If there be such a power, is there here an unwarranted delegation to some outside body of the authority to determine such wage scale?

In view of the fact that both questions are here fully argued, are of importance, and requiring present determination, we shall, although disposing of the present case upon an affirmative answer to the second, nevertheless give our present views as to the first of the above questions.

[1] For the common council to fix a prevailing minimum wage scale is but a step in advance of, but nevertheless in line with, what was held to be a proper exercise of its legislative discretion and function in the case of City of Milwaukee v. Raulf, 164 Wis. 172, 159 N. W. 819, and we think what was said and held in that case controls on the question now discussed. It was there held (164 Wis. 177, 159 N. W. 820) that, inasmuch as by the charter the common council has the management and control of all the property of the city except as therein limited, it was enpowered, in such proprietary capacity and with such broad control, to lawfully prescribe the number of hours per day laborers on city work should be permitted to devote to such labor. Such a legislative control over the hours of labor and conditions of employment of women and minors was upheld in State v. Lange Canning Co., 164 Wis. 228, 157 N. W. 777, 160 N. W. 57. As to city employés such a provision as to hours of labor has long been recognized. Vogt v. Milwaukee, 99 Wis. 258, 74 N. W. 789.

In fixing the hours of labor the legislative body for the city of Milwaukee was but following the public policy theretofore declared by the Legislature by the statutes fixing the hours of labor on work done for the state and discussed in the Raulf Case, supra, on page 180 of 164 Wis., on page 821 of 159 N. W. So that it manifestly could not have been logically held that for the city of Milwaukee to do that which the Legislature had already done in the same line was contrary to the public policy of the state. That such action is a seeming advance over what has been heretofore done as to wage regulating by the state, instead of a following of state policy, as in the Raulf Case, supra, does not inhibit it. The Legislature has already declared itself on the subject of determining and compelling recognition of a reasonable wage scale for women and minors by sections 1729s1 to 1729s12, inclusive (chapter 712, Laws of 1913), not as yet before this court. Similar statutes have been upheld in such cases as Williams v. Evans, 139 Minn. 32, 165 N. W. 495, 166 N. W. 504, L. R. A. 1918F, 542;Larsen v. Rice, 100 Wash. 642, 171 Pac. 1037;State v. Crowe, 130 Ark. 272, 197 S. W. 4, L. R. A. 1918A, 567, Ann. Cas. 1918D, 460; and Stettler v. O'Hara, 69 Or. 519, 139 Pac. 743, L. R. A. 1917C, 944, Ann. Cas. 1916A, 217, and Simpson v. O'Hara, 70 Or. 261, 141 Pac. 158, these two affirmed by equal division of the court in 243 U. S. 629, 37 Sup. Ct. 475, 61 L. Ed. 937. A full discussion is found in a case passing upon an act creating a commission to investigate the subject of the minimum wage scale for minors and females in Holcombe v. Creamer, 231 Mass. 99, 120 N. E. 354.

As a general proposition, therefore, such a legislative body as the common council of Milwaukee under its charter power may fix, within a reasonable and fair compass, the rate of wages to be paid to laborers on city work as much so as it may prescribe the hours of labor as held in the Raulf Case, supra, and as well as it may prescribe the quality of materials that shall go into its public buildings and works, as has been its unquestioned power and practice. A similar result was reached, though based upon the police power rather than upon proprietary right, in Malette v. Spokane, 77 Wash. 205, 137 Pac. 496, 51 L. R. A. (N. S.) 686, ...