Wallace v. Board of Ed. of Montgomery County

• Decision Date: 30 March 1967
• Docket Number: 3 Div. 264
• Citation: 280 Ala. 635,197 So.2d 428
• Parties: George C. WALLACE, Member of Alabama Building Commission et al. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY et al.
• Court: Alabama Supreme Court

Page 428

197 So.2d 428

280 Ala. 635

George C. WALLACE, Member of Alabama Building Commission et al. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY et al.

3 Div. 264.

Supreme Court of Alabama.

March 30, 1967.

Goodwyn, Smith & Bowman, Montgomery, for appellants.

Hill, Robison & Belser, Montgomery, for appellees.

M. R. Nachman, Jr., Steiner, Crum & Baker, Montgomery, amicus curiae, in support of appellees.

COLEMAN, Justice.

This case was submitted to this court on January 11, 1967. Because of the public interest in the question presented, the case has been given preferred treatment in order that a decision might be rendered in advance of the time when a decision would have been rendered if the case had been considered in the regular order. Counsel for both appellants and appellees have been diligent in filing briefs and expediting submission of the appeal.

The complainants are: the Board of Education of Montgomery County; the members of the board individually, as members of the board, and as taxpayers and interested citizens acting under Act No. 868, approved September 8, 1961, Acts of Alabama 1961, page 1361; and the Superintendent of Education of Montgomery County, individually, as superintendent, and as taxpayer and interested citizen under Act No. 868.

The respondents are: the members of the Alabama Public School and College Authority in their capacity as such members; the members of the Alabama Building Commission as such members; the Director of the Alabama Building Commission; and the architects employed by the Commission.

Complainants pray that the court will restrain respondents from letting a proposed contract to construct a school building in Montgomery. In the contract, respondents have provided that the contractor must pay to all laborers, mechanics, carpenters, masons, and other specified classes of employees of the contractor, who work on the construction of the school building, a predetermined, minimum, hourly wage according to the applicable rate as is set out in a schedule for each class of employee, respectively.

Complainants further pray that the court declare the minimum wage requirement in the proposed contract void and that the complainant Board of Education is entitled to its proper allocation of state money provided by law for construction of the school building, without the predetermined minimum hourly wage requirement.

After hearing testimony ore tenus, the court made certain findings as follows:

'That the construction of the said new high school is a public works construction job requiring competitive public bidding and the contract must be let in accordance with the provisions of Title 50, §§ 15(1)--15(19), 1940 Code of Alabama, Recompiled 1958, commonly referred to as the 'Alabama Competitive Bid Law'.

'That the minimum hourly rates or wages shown by the schedule in the 'Minimum Rates on General Building Construction' require the payment to the various craft classifications of hourly rates or wages exceeding the wage rates prevailing in the Montgomery labor market area for certain crafts and is in excess of the wage rates paid the various crafts by responsible contractors in the Montgomery, Alabama, area for the performance of like or similar work on similar construction. That the said minimum hourly rates or wages, as set out in said schedule under the 'Minimum Rates on General Building Construction' requirements of the specifications for bidding and constructing said new high school, . . . are in excess of and thus are not the prevailing wages or hourly rates generally paid in the Montgomery area by responsible and licensed general contractors to the crafts for like or similar work on similar construction.

'That the intrinsic quality and character of the labor performed or work done by the various crafts is not to be determined by a guaranteed minimum hourly rate or wage nor is there any essential or necessary connection between a guaranteed minimum hourly wage or rate and the intrinsic quality and character of work along; that responsible contractors in this area pay their employees in the various crafts based on the employees' skill, ability, quality of work and number of hours worked; that they pay the wages and hourly rates prevailing in the market place for this area and that the minimum hourly rates and wages as required by the specifications are in excess of said prevailing wages and hourly rates for this area.

'. . ..

'That there is no legislative authority given to the Alabama Public School & College Authority by Act No. 243, Special Session of the Legislature of Alabama, approved May 4, 1965, or to the Alabama Building Commission by Act No. 128, Regular Session of the Legislature of Alabama, approved June 16, 1945 to set minimum wages or hourly rates for crafts employed on public works; that the captions of said acts show no legislative intent which authorizes the Alabama Public School & College Authority of the Alabama Building Commission of 1945 to require a nimimum wage scale on public works contracts.

'. . ..

'That the requirement of a predetermined wage or hourly rate and the job classification of crafts as a prerequisite for bidding and construction of the new senior high school on Carter Hill Road in Montgomery, Alabama, a public works project, will result in the use of tax moneys of the State of Alabama to pay a contractor to perform said work who will not be the lowest responsible bidder and would be in violation of the 'Alabama Competitive Bid Law."

The court permanently enjoined respondents from requiring the predetermined specification of wages in the construction of the school on Carter Hill Road and any other school construction in Montgomery. The court further ordered that respondents forthwith distribute to the Board of Education of Montgomery County its proper allocation under Act No. 243, approved May 4, 1965, Special Session of the Legislature of Alabama, and that advertisement be forthwith made for bids for construction of the new school on Carter Hill Road in Montgomery, without the inclusion of the predetermined specification of wages in the plans for said school.

Respondents appealed. They argue that the provisions of the Competitive Bid Law, Title 50, § 15(5) et seq., Code 1940, as amended, 'have no application to the present suit,' and state the question for decision as follows:

'. . .. We strenuously urge . . . that the provisions of the Competitive Bid Law have no applicability to the present suit. That statute is a procedural statute which governs the manner in which public works contracts must be awarded. It does not govern the substantive provisions which go into the contract. The Building Commission is the agency authorized by law (Title 55, Section 367(2) and Act No. 243, Section 10(m)((n))(2), Acts of Alabama, Special Session, 1965), to prepare the specifications for the construction which is the subject of this suit. The only question presented here is whether the Building Commission has abused its discretion in requiring the insertion of a predetermined wage scale as one of the specifications of the contract. . . ..'

The question for decision is the same question which the parties in Bear Brothers, Inc. v. Trammell, 279 Ala. 194, 183 So.2d 790, undertook to present in that case, which, however, was decided on another issue.

Respondents argue that the instant suit is a suit against the state and, for that reason, cannot be maintained under authority of Wallace v. Malone, 279 Ala. 93, 182 So.2d 360.

In Malone, this court held that a bill was without equity wherein complainants sought to enjoin the officers and members of the State Board of Education from cancelling a contract previously entered into by complainant as one party, and the state acting by and through the State Board of Education as the other party. This court held that the suit was a suit to redress breach of contract by the state and that the suit could not be maintained because it was a suit against the state forbidden by Section 14 of the Constitution of 1901.

As stated in Glass v. Prudential Ins. Co. of America,246 Ala. 579, 586, 22 So.2d 13, and other cases, it is the nature of the suit or relief demanded which the courts consider in determining whether a suit against a state officer is in fact one against the state within the rule of immunity referred to, and it is not the character of the office of the person against whom the suit is brought.

'Injunctive action may be maintained against a state official, if the official is acting beyond the scope of his authority or acting illegally, in bad faith, or fraudulently. A state's immunity from suit does not apply when 'officers under a mistaken interpretation of the law acting in the name of the State commit acts not within their authority which are injurious to the rights of others.' Curry v. Woodstock Slag Corp., 1942, 242 Ala. 379, 6 So.2d 479, 480. Glass v. Prudential Insurance Co. of America, 246 Ala. 579, 22 So.2d 13; Horn v. Dunn Brothers, Inc. 262 Ala. 404, 79 So.2d 11; Finnell v. Pitts, 222 Ala. 290, 132 So. 2. In 49 Am.Jur., States, Territories, and Dependencies, pp. 308--310, the following observation is pertinent:

"Nor does the immunity of the state from suit relieve an officer of the state from responsibility when he acts tortiously on the rights of an individual, or in excess or violation of his authority, even though he acts or assumes to act under the authority and pursuant to the directions of the state. * * * An officer who acts illegally is not acting as an officer, but stands in the same light as any other trespasser." St. Clair County v. Town of Riverside, 272 Ala. 294, 296, 128 So.2d 333, 334.

We wish to make it abundantly clear that there is not the slightest implication whatsoever that respondents are acting fraudulently or in bad faith.

The ultimate question is whether the bill alleges and the proof shows that the Building Commission is acting within its authority...