HAGUE v. CLEARY

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District Court of Appeal, First District, Division 2, California.

HAGUE v. CLEARY et al.a1

Civ. 9614.

Decided: December 18, 1934

Charles J. Wiseman, of San Francisco, for appellant. John J. O'Toole, City Atty., and Henry Heidelberg, Deputy City Atty., both of San Francisco (John J. Dailey, of San Francisco, of counsel), for respondents. George O. Bahrs, of San Francisco, for California Metal Trades Ass'n, amicus curiæ. Brobeck, Phleger & Harrison, of San Francisco, for Industrial Ass'n of San Francisco, amici curiæ. Allen G. Wright and Wright & Wright & Larson, all of San Francisco, for San Francisco Chamber of Commerce, amici curiæ.

The plaintiff sued to restrain the defendants from executing a contract for the construction of a public building in the city and county of San Francisco to be known as the Psychopathic building. Three causes of action were pleaded. The defendant's demurrers to the first and second causes were sustained without leave to amend and their demurrer to the third cause was overruled. They declined to answer to the third cause of action and judgment was thereupon entered dismissing the action as to the first and second causes and granting an injunction restraining the defendants from including in the contract the matters complained of in the third cause of action. The plaintiff has appealed from that portion of the judgment dismissing the first and second causes of action.

The controversy involves the construction of Ordinances No. 8995 and No. 9092 as applied to the provisions of section 98 of the municipal charter. This section is a portion of the new charter which became effective January 8, 1932. Ordinance 8995 was enacted May 22, 1931, after the charter was adopted and in contemplation of section 98. Ordinance 9092 was enacted after the effective date of the charter and became effective January 7, 1933.

The pertinent provisions of section 98 of the charter are: “Every contract for any public work or improvement, exclusive of purchases, to be performed at the expense of the city and county, * * * must provide: * * * That any person performing labor thereunder shall be paid not less than the highest general prevailing rate of wages in private employment for similar work; * * *

“The board of supervisors shall have power and authority to make and enforce regulations in the premises not in conflict with the provisions hereof.”

The pertinent provisions of ordinance 8995 are: “Every contract for any public work or improvement to be performed within the State of California at the expense of the City and County * * * must provide, * * * that any person performing labor in the State of California, in the execution of such contract, * * * shall be paid not less than the highest general prevailing rate of wages in private employment for similar work in the City and County of San Francisco.” Provision is then made for the assembling of data by the civil service commission upon which the board of supervisors shall semiannually fix and determine the highest prevailing rate of wages, which scale of wages shall be included in every public contract covered by the ordinance. Pursuant to this ordinance, resolutions were duly passed by the board of supervisors fixing the scale of wages for the purposes of the ordinance. Resolution No. 574 was passed January 5, 1933. Notice inviting sealed proposals for the contemplated building was first published January 12, 1933. An addenda to the invitation for proposals recited that the contract should include the stipulation that wages for labor performed thereunder should be in accord with the scale thus approved.

The basis of the first cause of action is that the ordinance under which a definite scale of wages was fixed is in conflict with the terms of section 98 of the charter and that for this reason it was repealed by the provisions of section 2 of the charter which declared that all ordinances or resolutions “not inconsistent therewith shall continue in force until amended or repealed.” The point is not sound because the ordinance is not inconsistent with the provisions of the charter as will hereafter appear. The appellant professes to find an inconsistency in this: The charter provides, “Every contract for any public work or improvement, * * *” whereas the ordinance provides, “Every contract for any public work or improvement to be performed within the State of California. * * *” The board of supervisors is expressly authorized to make and enforce regulations to carry out the provisions of the section. There can be no objection to any one ordinance that it does not provide everything necessary to carry out every provision of the section of the charter. It was competent and consistent with the provisions of the charter for the board to provide by ordinance regulations covering city contracts to be performed within the state. As the contract which is the subject of this litigation is one to be performed within the state and within the city and county, the appellant is not concerned with what might occur if some other contract to be performed outside the state should be contemplated.

A similar attack is made upon the language of the ordinance declaring that labor under such contracts shall be paid not less than the highest prevailing rate of wages in private employment for similar work “in the City and County of San Francisco.” It is argued that this is in conflict with the terms of the charter which require the prevailing rate of wages in private employment for similar work. Since the contract is to be performed in the city and county of San Francisco, the prevailing rate of wages in that locality would be the rate applicable under the charter and this would be true under the ordinance as well if the words “in the City and County of San Francisco” were omitted. Thus, what interpretation may be placed on these provisions of the ordinance, if a contract were to be performed by the city and county wholly outside its boundaries, is a question not before us in this litigation.

A general attack is made upon the purposes of the ordinance which calls for semiannual fixing of the wage scale. It is said in argument that because of the changed conditions in the economic world, prevailing wages may change from the scale fixed by the board of supervisors so that in some cases a contract executed in the terms of the ordinance might not reflect the prevailing wage at the time of its execution. Academically, the argument has merit, but the point does not arise here because the complaint does not allege that such conditions existed or were apt to exist in the execution of the contract in litigation.

The brief of the industrial association of San Francisco and of the San Francisco chamber of commerce, appearing as amici curiæ in support of the appellant, is confined to the attack made in the first cause of action. The whole argument in this brief is based upon the untenable theory that because the charter provides that these public contracts shall require that labor thereunder shall be paid “not less than” the highest general prevailing rate, therefore any ordinance or any contract executed thereunder which provides for payment of labor more than the highest prevailing rate is in violation of the charter section. On this premise it is argued that the charter section was enacted for the benefit of the taxpayers and that they were thereby guaranteed that no such public contract would call for the payment of labor upon a scale higher than that prevailing in private employment. In the interpretation of a statute, we must give force to every expression used. If it had been the intention of the charter framers to prohibit the payment of wages on public work above the prevailing rate paid in private employment, they would have either used some expression to convey that intention or would have omitted the words “not less than.” As the charter reads, these words clearly convey the intention to prohibit payment less than the prevailing rate and no more. To adopt the view of amici curiæ, we would have to disregard these words altogether.

The debatable question arises under the allegations of the second cause of action. These allegations attack the provisions of the contract which would require that all materials specially made for use under the contract shall be manufactured and delivered to the contractor by such concerns only as shall, in the manufacture and delivery thereof, pay their employees wages in accord with the scale fixed under the ordinances. The California Metal Trades Association, appearing as amicus curiæ, attacks these provisions of the proposed contract as repugnant to the express provisions of section 98 of the charter which exclude purchases from the wage scale regulations. The respondent replies that, as the materials are to be specially fabricated for the purpose of the contract, it is a matter of work and labor rather than one of purchase and sale. It is this difference that distinguishes the questions raised in the second and third causes of action. In the latter, the attack was confined to the wage requirements covering the manufacture of “standard” articles to be used under the contract. As to them, the trial court held that the scale of wages was not applicable. The respondents conceded the correctness of this ruling and suffered an injunction restraining them from including in the proposed contract any demand relating to the scale of wages to be paid in the manufacture of such articles.

In this contention, we are again faced with a simple rule of statutory construction. The charter reads: “Every contract for any public work or improvement, exclusive of purchases.” There is no uncertainty in this language. The words “exclusive of purchases” are clear and explicit. They must be given the force of their ordinary meaning. To follow respondent's view, we would either have to disregard the expression entirely or add after the word “purchases” the words “of standard articles, but not of articles specially made.” There is nothing in the charter section which would justify a distinction between the purchase of standard articles and materials specially manufactured. In both cases the transaction is a purchase and sale as was held in Neal Publishing Co. v. Rolph, 169 Cal. 190, 146 P. 659, a case which involved the identical question and one which is controlling here.

The portion of the judgment relating to the first cause of action is affirmed. The portion relating to the second cause of action is reversed. The appellant should have his costs.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.