Wagner v. City of Milwaukee

• Decision Date: 03 April 1923
• Citation: 180 Wis. 640,192 N.W. 994
• Parties: WAGNER v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

180 Wis. 640

192 N.W. 994

WAGNER

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

April 3, 1923.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Suit by Herman A. Wagner against the City of Milwaukee. Judgment for defendant upon demurrer, and plaintiff appeals. Affirmed.

See, also, 188 N. W. 487.

Jones, J., dissenting.

On July 24, 1922, the common council of defendant city passed an ordinance providing for a prevailing minimum wage scale to be paid all city employees engaged upon public work and by contractors and subcontractors to their employees on public work.

It declared that the purpose of such ordinance “is to insure a living wage to all laborers employed on all city work.” It provided that the employment of any person contrary to the provisions of said ordinance shall be deemed a separate and distinct violation of its provisions for each day so employed, and that any person, firm, or corporation violating the provisions of said ordinance shall, upon conviction, be punished by a fine of not to exceed $25 and, in default of payment thereof, by imprisonment in the house of correction for not to exceed 90 days.

The scale by said ordinance for the minimum wage for such labor was contained in a list of over 40 different kinds of such labor and with minimum prices per hour for each respective kind ranging from 55 cents per hour for building laborers, as the lowest, to $1.25 per hour for brick layers on sewer work and modelers. It also contained a list of about 11 specified items for minimum compensation to foremen varying from that of foreman of laborers, at 85 cents per hour, up to foremen of brick layers, at $1.37 1/2 per hour.

Plaintiff, a resident taxpayer of the city, brought an action in equity on his own behalf and of all others similarly situated who may join as parties plaintiff, against the defendant city, its mayor and other officers thereof, to have such ordinance declared null and void and the defendants restrained from taking any steps to enforce said ordinance or making the same any part of the contracts to be thereafter let by the city of Milwaukee for public work.

To such complaint the defendants demurred on the ground that such complaint does not state a cause of action.

Upon the hearing the demurrer was sustained and the temporary injunction theretofore made was vacated. The plaintiff not amending his complaint, judgment of dismissal was entered. From such judgment the plaintiff has appealed.Lamfrom & Tighe, of Milwaukee (Leon B. Lamfrom and Fred R. Wright, both of Milwaukee, of counsel), for appellant.

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

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

It is alleged in the complaint that the scale of minimum wage as fixed by such ordinance is the same as that fixed and maintained by the respective labor unions in the city; that in many of the designated crafts by reason of the rules of the labor unions many workmen are designated as skilled laborers, and therefore entitled to a higher rate of pay to accord with such designation, whereas in fact the work they are required to perform is but ordinary or common labor, and that by reason of the foregoing much of the public work done by and for the city is in fact done by ordinary common labor, but for which the city and its contractors, by reason of the ordinance and scale, pay and are required to pay at least 70 per cent. higher wages than common labor of equal efficiency could be employed except for such ordinance and scale by the city and such city contractors, and that by reason thereof at least $500,000 a year of such excess in labor is required to be paid by the city, thereby increasing the burden of taxes on its citizens; that as to such labor as is really skilled labor, the minimum wage scale so fixed by the ordinance is on an average of at least 40 per cent. in excess of the ordinary prevailing wages in such trades or occupations for equally efficient and competent labor in said city; that under such ordinance contractors for public work under said city must pay over 50 per cent. more for common, unskilled labor than such could be obtained but for said ordinance; that the ordinance and the scale does not produce a higher degree of efficiency in public work and but adds additional expenditure to be borne by the taxpayers.

The complaint further recites that there is established in the said city an ordinance prohibiting the employment of labor on public work contracts more than eight hours a day; such ordinance being the same as was held valid by this court in City of Milwaukee v. Raulf, 164 Wis. 172, 159 N. W. 819.

It further recites the provision of section 16, c. 5, of the Charter of said City of Milwaukee, providing in substance that all work done, material or supplies purchased exceeding in cost $200 shall be let by contract to the lowest bidder.

It is also asserted that the effect of such ordinance and scale in connection with the eight-hour ordinance and the charter provision for letting work to the lowest bidder renders the said charter provision practically nugatory by excluding bidders who but for such ordinances would be the lowest...