FRANKLIN 1184 v. CITY OF RIVERSIDE

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District Court of Appeal, Fourth District, California.

Dewey FRANKLIN, Individually and as an officer, representative and member of Hod Carriers and Laborers Union, Local No. 1184, an unincorporated association, Plaintiff and Appellant, v. CITY OF RIVERSIDE, a municipal corporation, and John Roseberry, Defendants and Respondents.*

Civ. 6694.

Decided: February 19, 1962

Lewis Garrett and Lionel Richman, Los Angeles, for appellant. Leland J. Thompson, Jr., and Justin M. McCarthy, Riverside, for respondents.

Plaintiff-appellant Dewey Franklin, individually and as an officer, representative and member of Hod Carriers and Laborers Union, Local No. 1184, an unincorporated association, brought this action for injunction and declaratory relief against defendants and respondents City of Riverside, a municipal corporation (hereinafter referred to as ‘City’) and John Roseberry, a contractor. It seeks a determination of whether a contract entered into between the City and John Roseberry for the performance of public work (trimming trees and removing brush) was invalid by reason of its failure to contain within it a requirement that defendant Roseberry pay to his employees the prevailing wage in the community.

No undertaking on appeal having been filed by plaintiff, City paid defendant Roseberry the balance due on the contract. No issue is raised in the briefs in this respect. We shall assume any question as to the contractor has become moot. Subsequently the action against him was dismissed by stipulation.

Upon a stipulation of facts, the trial court found the agreement to be valid and enforceable. Judgment was entered for defendants. Plaintiff appealed.

The stipulation of facts may be thus summarized: that the City is a municipal corporation existing and operating under and pursuant to a valid freeholders charter pursuant to authority granted by article 11, section 8 Constitution of the State of California; that plaintiff is a proper party plaintiff in this action; that on September 14, 1960, the City and Roseberry entered into a written contract for the performance of a public work (contract attached to complaint); that no separate agreement exists whereby City required Roseberry to pay the prevailing wage or any specified wage to his employees in the performance of the subject contract; that the work to be performed pursuant to the contract was to be performed on high voltage electrical transmission line right-of-way easements owned or controlled by City's public utility department. The public utility department distributes electrical energy to the residents of the City of Riverside, which energy originates at the various hydro-electric or steam generating plants operated by Southern California Edison Company, both within and without the State of California; that payment by City to Roseberry for the performance of the subject contract was to be made solely from funds of the public utility department of City, which funds are derived from the revenues of the public utility department of that city.

Plaintiff states that the only questions of law presented are: (1) Was the work to be performed pursuant to the contract between the City and Roseberry a municipal affair within the meaning of article 11, section 8 of the California Constitution, and, therefore, exempt from the general laws? (2) Were the provisions of division 2, part 7, chapter 1, article 2 of the Labor Code of the State of California, incorporated by reference as the governing law of the City of Riverside?

The agreement attached to the complaint provides generally that contractor agrees to furnish all labor, materials and equipment necessary for the performance of the work of trimming the trees and removing the brush from a 25-foot strip of ground on each side of the center line of the pole line, for the sum of $9,400. It further provides that eight hours' work shall constitute a legal day's work, with certain exceptions, as provided by Labor Code, sections 1810 to 1816; that contractor agrees to comply with all provisions of Labor Code, section 1850 to 1858, and Government Code, sections 4300 to 4305, and abide by all federal, state and local laws and ordinances.

The general laws of this state provide, in Labor Code, section 1770:

‘The body awarding the contract or authorizing the public work shall determine the general prevailing rate of per diem wages in accordance with the standards set forth in Section 1773, and its determination in the matter shall be final except as provided in Sections 1773.4 and 1773.6.’

Section 1773 provides in part that:

‘The body awarding any contract for public work, or otherwise undertaking any public work, shall ascertain the general prevailing rate of per diem wages in the locality in which the public work is to be performed for each craft, classification or type of workman needed to execute the contract, and shall specify in the call for bids for the contract, and in the contract itself, what the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work in the locality is for each craft, classification or type of workman needed to execute the contract.’

It is agreed that City's contract itself contains no such provision. It is defendants' contention that the letting of this contract and the work to be performed under it constitute a purely municipal affair and that the sections quoted are not applicable.

Under California Constitution, article 11, section 11:

‘Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.’

It was held in Gramer v. City of San Diego, 164 Cal.App.2d 168, 330 P.2d 235, that a charter adopted by city under provisions of constitution respecting powers of city to make and enforce regulations concerning their municipal affairs is absolutely controlling and free from impairment by general laws of the state as to all ‘municipal affairs' and insofar as such charter makes provision relative to any municipal affairs, it is the supreme law, paramount to any general law enacted by the Legislature in regard thereto. To the same effect is California Constitution, article 11, section 6.

A city, by adopting a charter, becomes independent of the general laws only as to municipal affairs, but as to matters of statewide concern the general law is paramount. (Eastlick v. City of Los Angeles, 29 Cal.2d 661, 665, 177 P.2d 558, 170 A.L.R. 225; Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172.)

The charter of the City of Riverside (stats. 1953, ch. 49, p. 3885, sec. 200) specifies the powers of the City, i. e.:

‘* * * to make and enforce all laws and regulations in respect to municipal affairs, subject only to such restrictions and limitations as may be provided in this Charter and in the Constitution of the State of California. It shall also have the power to exercise, or act pursuant to any and all rights, powers, privileges or procedures, heretofore or hereafter established, granted or prescribed by any law of the State, by this Charter, or by other lawful authority, or which a municipal corporation might or could exercise, or act pursuant to, under the Constitution of the State of California. The enumeration in this Charter of any particular power shall not be held to be exclusive of, or any limitation upon, the generality of the foregoing provisions.’

Defendant City relies mainly upon the holding in City of Pasadena v. Charleville, 215 Cal. 384, 10 P.2d 745. There the city contracted to construct a wire fence around a reservoir which was part of the city's water system. The court held that it was a municipal affair. The city manager refused to sign the contract because it did not contain the specification of a general prevailing rate of per diem wages as was required by the Public Wage Rate Act of 1931 (stats. 1931, p. 910) and did not contain a provision forbidding the employment of aliens upon the work as provided by Public Works Alien Employment Act of 1931 (stats.1931, p. 913). It held the charter city was removed from the control of enactments of the Legislature insofar as its charter made provision for the conduct of municipal affairs; that with respect to matters not municipal, the provisions of the general law pertaining thereto would control the subject; that when article 11, section 8 of the Constitution, was amended in 1914, the privilege of autonomy was further extended to charter cities when it allowed such cities ‘to make and enforce all laws and regulations in respect to municipal affairs' subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to and controlled by general laws, and that the result is that the city has become independent of general laws upon municipal affairs. It likewise said that the hiring of employees by the city to perform labor and services in connection with its municipal affairs and the payment of the city's funds for services rendered to the city by its employees in the administration of its municipal affairs is not subject to or controlled by general laws.

The city charter of Riverside provides for the doing of the proposed work by contract. We see no material distinction between the charters of the two cities. The Charleville case held, however, that the Public Works Alien Employment Act of 1931 was a matter of general statewide concern as distinguished from a local or municipal affair.

It therefore appears to us that if this decision is the law of this state and has not been modified by judicial decision, then the judgment of the trial court was authorized. Plaintiff claims that such modification has taken place in one of two ways, i. e., the law has been changed so as to indicate that what was once a municipal affair is now considered a matter of statewide importance, or the change in facts may indicate that a situation which was once considered a municipal affair has become converted to a matter of statewide concern, even though the law is the same.

Plaintiff's attorney points out, as part of his argument, that the Public Works Wage Rate Act of 1931 and the Public Works Alien Employment Act of 1931 were two separate pieces of legislation and were considered separate in the Pasadena case; that in 1937 the Legislature adopted the Labor Code and created a single, overall master regulation covering labor relations in general in the State of California and indicated a public policy in relation thereto by adopting section 923 thereof; that subsequent amendments (stats.1953, ch. 1706, sec. 4, and sec. 1773.1, in 1959) in reference to labor relations are not matters of local concern but are matters of statewide importance in which the interests of the state are paramount. (Citing Stephenson v. City of Palm Springs, 52 Cal.2d 407, 340 P.2d 1009; Chavez v. Sargent, 52 Cal.2d 162, 339 P.2d 801).

It is further argued that the trend of times pertaining to heavy industry, freeways, construction of dams and such improvements, impels a retreat from the Charleville decision and that the Supreme Court has recognized this fact in Southern California Roads Co. v. McGuire, 2 Cal.2d 115, 39 P.2d 412, involving Sepulveda Boulevard in Los Angeles (a secondary state highway), holding that it was not a wholly municipal affair in letting a contract for its improvement. It held that since the state furnished the money for this and it was a secondary state highway, a compliance with the laws in reference to the Wage Rate Act was required. However, the Supreme Court in that case still recognized the rule laid down in the Charleville case. (See also Young v. Superior Court, 216 Cal. 512, 15 P.2d 163; People v. Willert, 37 Cal.App.2d Supp. 729, 93 P.2d 872; Pacific Tel. & Tel. Co. v. City and County of S. F., 51 Cal.2d 766, 771, 336 P.2d 514; City of Long Beach v. Lisenby, 175 Cal. 575, 581, 166 P. 333.)

The municipal affair rule, as used in the Constitution, covering or limiting rights of cities under charters, refers to the internal affairs of a municipality. (City of Walnut Creek v. Silveira, 47 Cal.2d 804, 306 P.2d 453.) When a city has availed itself of the provisions of article 11, section 6 of the Constitution, as amended in 1914, some question is raised as to whether it is a grant of power or an instrument which accepts the privilege granted of complete autonomous rule with respect to municipal affairs. West Coast Advertising Co. v. City and County of San Francisco, 14 Cal.2d 516, 95 P.2d 138, appears to have settled this question.

The work in the instant case was the trimming of trees and removal of brush in the city and on city-owned or controlled easements. We conclude that this contract as let (for trimming trees and removing brush) was a ‘municipal affair’ within the meaning of that term, and had no direct relationship to the electrical current furnished to the city's power line. We find no expression in any subsequent opinion of the Supreme Court which has been called to our attention that the case of City of Pasadena v. Charleville, supra, 215 Cal. 384, 10 P.2d 745, has been overruled. We feel that we are bound by that decision until a different policy is declared by that court changing the rule there applied. (Auto Equity Sales, Inc. v. Superior Court, 57 A.C. 244, 247, 18 Cal.Rptr. 497, 368 P.2d 97.)

Judgment affirmed.

GRIFFIN, Presiding Justice.

SHEPARD and COUGHLIN, JJ., concur.