Park View Hospital Trust Authority v. State Ex Rel. Oklahoma Department of Labor , 925 P.2d 541 ( 1996 )

LAVENDER, Justice.

After learning that the then Oklahoma Commissioner of Labor took the position a contemplated building project to enlarge and update its hospital facilities would be subject to the Oklahoma Minimum Wages on Public Works Act, 40 O.S.1991, § 196.1 et seq. (the Little Davis-Bacon Act), appellant, Park View Hospital Trust Authority, sued appel-lees — the Oklahoma Department of Labor and its Commissioner — for a declaration it was not a public body subject to that Act and for an injunction enjoining appellees from enforcing the Act against it. On counter-motions for summary judgment the trial court granted summary judgment to appel-lees and ruled appellant was a public body, as that term is defined at 40 O.S.1991, § 196.2(6), and that the proposed hospital construction project would fall under the Act. The Court of Appeals in a 2-1 unpublished Memorandum Opinion affirmed and appellant sought certiorari in this Court, which we previously granted. In view of our recent decisions in City of Oklahoma City v. State, 918 P.2d 26 (Okla.1995), and Prime Electric Co., Inc. v. Oklahoma State Department of Labor, 921 P.2d 363 (Okla.1996), we now vacate the Memorandum Opinion of the Court of Appeals, reverse the judgment of the trial court and remand to that court with a direction to dismiss the action.

In that this matter was pending in this Court at the time of our decision in City of Oklahoma City of October 10, 1995 and at the time of our Supplemental Opinion on Rehearing in City of Oklahoma City [918 P.2d at 31] of May 14, 1996, this Court issued an Order directing the parties to file briefs detailing their positions on what effect, if any, this Court’s decisions in City of Oklahoma City have on the disposition of the instant appeal. Both sides to this appeal filed their positions in such regard.

Appellant responded, taking the position City of Oklahoma City should be applied to this appeal and that such application should result in reversal of the trial court’s judgment against it and a remand to that court with an instruction to dismiss. In support of its position appellant informs this Court that no actual work has begun on the contemplated project, that no contracts have been negotiated or entered into and no expenses for labor or services have been incurred. In essence, appellant’s bottom line position is that because there is no longer a viable constitutional Act to be enforced and the project has not yet actually been implemented by contractual agreement, there is no Act which the Commissioner of Labor can now enforce against it and there is no longer a justiciable controversy involved in this matter.

Appellees, in their response, admit that no contract was entered into by appellant prior to initiation of the action in the district court. They also acknowledge in the response that appellant has advised them that no contract in regard to the contemplated project has been entered “to-date”.¹ Appellees take the position, however, that we should not apply City of Oklahoma City, but that we instead should decide the appeal only on the issue previously raised (i.e. whether appellant is a public body under the Act) primarily because appellant has not previously raised any constitutional challenge to the Act.

In City of Oklahoma City, we held the Little Davis-Bacon Act unconstitutional because it delegated power to the federal government to determine prevailing wage rates without setting a standard for exercise of that power. 918 P.2d at 29-30. The entirety of the Act was held unconstitutional. 918 P.2d at 30-31. In Prime Electric Co., Inc. we applied our ruling of uneonstitutionality to a case pending on appeal at the time of our initial decision (October 10, 1995) in City of Oklahoma City. Prime Electric Co., Inc., 921 P.2d at 365. We held that where employees’ rights to certain wages rose or fell on whether the Little Davis-Bacon Act was constitutional, and the matter was pending on appeal at the time of our decision in City of Oklahoma City, our ruling of unconstitutionality would be applied to hold void a Commissioner of Labor’s determination that employer had violated the Act by failing to pay certain wages as specified in the Act. Prime Electric Co., Inc., 921 P.2d at 364-365.²

In the present appeal we likewise believe our determination of uneonstitutionality handed down in City of Oklahoma City should be applied to this appeal. We can see no principled distinction which would call for application of our sentence of unconstitutionality in Prime Electric Co., Inc. on the one hand and a refusal to apply it to the instant appeal on the other, given the present posture of this case.³

Accordingly, we VACATE the Memorandum Opinion of the Court of Appeals, we REVERSE the judgment of the trial court which granted summary judgment to appel-lees and we REMAND to the trial court with a direction to dismiss this action.

KAUGER, V.C.J., and HODGES, LAVENDER, HARGRAVE, SUMMERS and WATT, JJ., concur. ALMA WILSON, C.J., concur in result. SIMMS and OP ALA, JJ., concur in judgment.

1 . Appellees’ response referenced in the text was filed in this Court on June 13, 1996.

2 . In Prime Electric Co., Inc. v. Oklahoma State Department of Labor, 921 P.2d 363 (Okla.1996), the first time employer challenged the constitutionality of the Little Davis-Bacon Act was in a petition for rehearing filed in the Court of Appeals about two weeks prior to our October 10, 1995 decision in City of Oklahoma City v. State, 918 P.2d 26 (Okla.1995). Prime Electric Co., Inc., 921 P.2d at 365. At such time employer did not brief the constitutional issue, but requested an extension of time to do so. Both the petition for rehearing and request for extension of time were denied by the Court of Appeals. Id. An application to vacate these denials by the Court of Appeals filed the day after our decision in City of Oklahoma City was also denied by the Court of Appeals. Prime Electric Co., Inc., 921 P.2d at 365.

3 .We also note that assuming no contract has been negotiated or entered into and no expenses for labor or services have been incurred at present, any decision by us concerning the issue of whether appellant is a public body under the Little Davis-Bacon Act would be meaningless in light of our determination of unconstitutionality in City of Oklahoma City. In such regard, we are aware of no doctrine and none has been cited to us by appellees which would presently require appellant to enter into a contract which would be controlled by an Act that has been declared unconstitutional.