Wilson v. City of Atlanta

• Docket Number: 5762.
• Decision Date: 16 July 1927
• Citation: 139 S.E. 148,164 Ga. 560
• Parties: WILSON et al. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

139 S.E. 148

164 Ga. 560

WILSON et al. v. CITY OF ATLANTA.

No. 5762.

Supreme Court of Georgia

July 16, 1927

Syllabus by the Court.

A municipal corporation, though not required by the charter to let contracts for a public work to the lowest bidders, and though clothed as to such matters with the broadest discretionary powers, has no authority to adopt an ordinance prescribing a fixed scale of wages that shall be paid for all public work of the city. Such an ordinance by the city of Atlanta is ultra vires and illegal, because it tends to encourage monopoly and defeat competition, and also tends to put a heavier burden upon the taxpayers than they would have to bear if free competition were allowed; and all contracts made in pursuance thereof are void. City of Atlanta v Stein, 111 Ga. 789, 36 S.E. 932, 51 L.R.A. 335; Green v. City of Atlanta, 162 Ga. 641, 652, 135 S.E 84.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Suit for injunction by William Wilson and others against the City of Atlanta. Judgment for defendant, and plaintiffs bring error. Reversed.

Hines J., dissenting.

Alston Alston, Foster & Moise and Randolph, Parker & Fortson, all of Atlanta, for plaintiffs in error.

J. L. Mayson, Courtland S. Winn, and J. L. Key, all of Atlanta, for defendant in error.

HILL, J.

On August 16, 1926, the mayor and general council of the city of Atlanta enacted the following ordinance:

"An ordinance providing for a standard or fixing of prices to be paid as wages for skilled laborers in the employ of the city or parties making contracts with the city, where such contracts provide for work or the erection of public buildings and bridges or repairs thereof; and also providing that eight hours will constitute a day's work for said laborers described as skilled laborers. ***

Section 1. That the city of Atlanta hereby ordains that it is to the public interest that a minimum wage scale be fixed for work done upon or in the construction of public buildings and bridges and repairs thereon.

Sec. 2. In line with this policy, the following scale or wage is ordained on all work done by the city itself or by contractors holding contracts for work upon or in the erection of public buildings or bridges and on all repairs thereon, where such public work or buildings are done by authority of the city of Atlanta: Blacksmith, 90 cents per hour. Carpenters, 80 cents per hour. Painters, 80 cents per hour. Bricklayers, $1.40 per hour. Plasterers, $1.25 per hour. Plumbers, $1.25 per hour. Steamfitters, $1.25 per hour. Electrical workers, $1.00 per hour. Structural iron and steel workers, $1.25 per hour. Wood, wire, and metal lathers, $1.00 per hour. Sheet metal workers, 80 cents per hour. Elevator constructors, $1.18 per hour. Hoisting engineers, $1.00 per hour. Stone cutters, $1.12 1/2 per hour.

Sec. 3. That hereafter all contracts entered into with said city shall provide that said wages shall be paid, and where the city itself does the work it shall itself pay said wages.

Sec. 4. Where parties have made a contract with the city and have either agreed therein to pay said wages and have failed to do so, or make contract without such agreement and fail to pay said wages, then said contracts are hereby declared null and void, and no moneys shall thereafter be paid thereon, and said contractors shall be deemed to have broken their contract with said city and this ordinance shall be pleaded as a defense to any action brought thereon.

Sec. 5. That eight hours is hereby ordained as the maximum hours to be performed on the work described in section 2 of this ordinance, and employees of the city or of contractors thereon shall not be required to work upon said work as therein described, for exceeding eight hours per day; provided that on Saturdays the maximum hours for the day's work shall not exceed four hours. If contractors violate the provisions of this section, their contract is hereby declared null and void, and no sum shall thereafter be paid thereon by the city, and the provisions of this ordinance can be pleaded as a defense to any action brought thereon.

Sec. 6. That in case of a violation of the provisions of this ordinance it shall be the duty of the mayor and general council to see that the terms thereof are in force, and declare said contract null and void, and to decline to make further payments thereon.

Sec. 7. That all ordinances and parts of ordinances in conflict with this ordinance be and the same are hereby repealed."

Applying the principle stated in the headnote, the ordinance just set forth is void as being ultra vires and illegal. The controlling facts in City of Atlanta v. Stein, supra, are so similar to the facts involved in this case as to render unnecessary an elaborate discussion of the principles there discussed. It was therefore erroneous in this case to refuse an injunction.

Judgment reversed.

All the Justices concur, except

HINES J. (dissenting).

Plaintiffs as residents and taxpayers of the city of Atlanta, and as contractors who purpose to make bids upon buildings and other improvements contemplated by the city of Atlanta with the proceeds of the large bond issue recently authorized by popular vote, attack the legality and constitutionality of the ordinance in question. Broadly stated, this ordinance fixes eight hours for a day's work by skilled laborers upon the public buildings or bridges, and upon all repairs thereon, when done either by the city or by contractors, fixes a minimum scale of wages for skilled laborers engaged in such work when done either directly by the city or through contractors, and declares all contracts for the doing of such work void and unenforceable when made or performed in violation of the provisions of the ordinance, as to the hours of work or rate of wages. Plaintiffs insist that this ordinance is void, because the mayor and general council had no power to enact the same, and because that it violates the due process clauses of the federal and state Constitutions (Const. U.S. Amend. 14; Const. Ga. art. 1, § 1, par. 3), in that it denies plaintiffs freedom of contract and the equal protection of the law, and further deprives them and other taxpayers of the city of their property, in violation of the above constitutional provisions, inasmuch as the enforcement of said ordinance will largely increase the cost of such public works, will saddle upon the plaintiffs and other taxpayers of the city the burden of meeting such increased cost, and will indirectly amount to the taking of their property without due process of law.

1. Did the mayor and general council of the city of Atlanta have the power to enact this ordinance? The scope of our inquiry is a narrow one. It does not involve the right of the state to fix by statute the hours of labor per diem for laborers employed upon the public works of the state or upon the public works of its municipalities. We are not called upon to determine whether the state or a city could generally fix the hours of labor to be performed daily by laborers, and whether the state or city could generally fix a minimum scale of wages to be paid by employers to their employees. The narrow question for our decision is this: Can the city, in erecting its public buildings and bridges, and in making repairs thereon, when the work is done by the city itself, or when it is done by contractors employed by the city, fix the number of hours which its employees or the employees of its contractors shall be required to work on such works daily, and to prescribe the wages which the city or its contractors shall pay to employees in doing such work? In Mayor, etc., of Cartersville v. Baker, 73 Ga.

686, this court held that a municipal corporation, under its general powers, could build schoolhouses within its limits, unless there was something in its charter which forbade it. It follows that a city, under its general powers, can erect other necessary public buildings. In Town of Belton v. Vinton, 73 Ga. 99, this court decided that a municipal corporation was bound to use ordinary care to build and keep in repair a bridge in one of its highways, whether constructed by it or not. So the city of Atlanta, under its general powers, can build all necessary public buildings and bridges and keep them in repair. The city has this power under its charter. City Code of Atlanta 1924, § 52. Having this power, can the mayor and general council of Atlanta pass an ordinance respecting the hours which laborers employed by it in the erection of public buildings and bridges shall labor, and fixing their per diem for their labor, when the work is done by the city itself? It seems to me unquestionable that, when the city itself erects a public building or a public bridge, or where it repairs either, it can fix the terms and conditions including the daily wages to be paid laborers employed by it upon such public works, and likewise fix the number of hours which shall constitute a day's labor, upon which it will permit such public works to be done. In the recent case of Green v. Atlanta, 162 Ga. 641, 135 S.E. 84, we held that-

"The legislative body of a municipality, 'within a reasonable and fair compass,' may fix the wages paid to city employees, and prescribe rules with reference to such services."

It follows that it can pass a general ordinance which shall govern in these matters, and will not be required to pass a separate ordinance which shall govern each public improvement undertaken by it.

Can the city fix a minimum wage which contractors employed by it to erect public buildings or bridges, or make repairs thereon shall pay the laborers whom they employ in such work, and fix the hours of labor beyond which they shall not require their laborers to work...