Bohn v. Salt Lake City , 79 Utah 121 ( 1932 )

I too concur in the order granting the writ prayed for. The cases which are cited and relied upon by the defendants do not, as I read them, justify the conclusion that all of the questioned provisions of the proposed contract here under review are entitled to receive judicial sanction. Each of the cited cases support, or tend to support, one or more of the following legal propositions: That it is competent for the lawmaking power to enact laws providing for the manner in which public improvements shall be constructed, as to the number of hours that shall constitute a day's labor, as to the minimum wage that shall be paid, and as to prohibiting the employment of aliens. The lawmaking body of a municipality may, according to the cases cited by the defendants, exercise the same powers with respect to the enactment of ordinances affecting municipal improvements as the Legislature may exercise over public improvements generally when the municipality is so authorized by constitutional provisions or by legislative enactment. None of the cases cited by the defendants deal with the question of authority of a city to place in a contract for the construction of a public improvement provisions such as are here involved in the absence of either a general law or a city ordinance authorizing the same. No case has been cited and we have been unable to find a case where either Congress, a state Legislature, or a city council or commission has attempted to replace the use of machinery by hand labor. Laws fixing minimum wages and maximum hours of labor in the construction of public improvements and excluding aliens from working thereon are not new, but a requirement that labor-saving machinery be dispensed with is a departure from the trend of modern civilization. Probably nothing has contributed more to the advancement of our present civilization during the past century than has the construction and use of labor-saving machinery. In the light of such fact it is difficult to perceive of any legal or economic principle that can be advanced in support of a requirement that a contractor may not use labor-saving machinery in the construction of a public improvement.

Independent of any provision in the proposed contract here involved, a contractor may not require workmen to work more than eight hours per day on the construction of the proposed sewer. Constitution of Utah, art. 16, § 6; Comp. Laws Utah 1917, § 3666. And, likewise, the contractor may employ only citizens of the United States and persons who have declared their intention of becoming such. Comp. Laws Utah 1917, § 4865.

An entirely different question is presented when we come to consider the other material questioned provisions of the proposed contract. As to the authority of the city council to include such provisions the Legislature has not spoken. So far as appears there is not now, and there never has been, an ordinance of Salt Lake City fixing a minimum wage that must be paid by a contractor who constructs an improvement for the city. Nor is any claim made that the city ever had an ordinance requiring that hand labor be employed, when possible, by a contractor who undertakes to construct an improvement for the city. As stated in the prevailing opinion, this court is committed to the doctrine that a municipality has only such powers as are expressly conferred upon it by an act of the Legislature, and such powers as are necessary to the exercise of the powers expressly conferred. In the absence of express authority I can see no escape from the conclusion that the city is without authority to fix a minimum wage that must be paid by a contractor who engages in constructing an improvement for the city, and, likewise, there is no authority for requiring that a contractor shall, when possible, use hand labor in constructing such improvement. Nor can it be successfully maintained that the authority to let a contract for the construction of a municipal improvement carries with it the implied authority to fix the minimum wage that the contractor shall pay to his employees, or that the work shall, when possible, be performed by hand labor. Such provisions in a contract between a city and a contractor are in no sense necessary, nor do they aid in the construction of the improvement contracted for.

If a city is without authority to enact an ordinance fixing a wage which a contractor must pay to his employees, and requiring that the work contracted for be performed, when possible, by hand labor, it follows that a city is without authority to accomplish these ends by inserting such provisions in its proposed contracts. If there be any choice between the two methods, the former is less objectionable than is the latter. If, at the time the bond election was called, Salt Lake City had had an ordinance fixing the minimum wage that contractors must pay to their employees in constructing public improvements and requiring that contractors construct public improvements, when possible, by hand labor, the taxpayers of Salt Lake City would have been advised as to the use to which the money derived from the sale of the bonds would be put. In the absence of such an ordinance or some notice to that effect, the taxpayers had a right when voting to assume, and they now have a right to demand, that the contemplated improvement be constructed according to some approved method.

It is earnestly urged on behalf of the defendants that, the Legislature having granted to the city the power to construct a sewer and having failed to prescribe the manner in which the same shall be constructed, the city commissioners are at liberty to construct the sewer as they see fit so long as their conduct is not tainted by fraud or bad faith. In my opinion, the power granted to the city commission is not as broad as claimed. Statements may be found in some cases to the effect that courts will not interfere with the action of a city council or a city commission while acting within the scope of their authority, in the absence of proof of fraud or bad faith. Other courts hold that actions of a city council or a city commission will not be upheld unless they are exercised in a reasonable manner. The latter is, as I think, the proper test. If it be sought to hold the members of a city council or a city commission personally liable for acts performed within the scope of their duties, it is quite generally held that fraud or bad faith must be shown. When, however, the members of a city council or city commission are engaged in passing an ordinance which is legislative in character, they are entitled to the same privileges and prerogatives as members of the state Legislature, and their motives are not even open to judicial inquiry. McQuillin Municipal Ordinances, §§ 161-162, pp. 256-259. It is quite generally, if not uniformly, held that a city ordinance will not be upheld unless the express power conferred upon a municipality is reasonably exercised. In the language of 2 McQuillin Municipal Corporations, § 726, p. 1578, it is said that:

"Where the mode of the exercise of a power expressly granted is not prescribed, courts will assume to determine whether the provisions of the ordinance respecting the mode adopted is reasonable, for in no event will an arbitrary and unreasonable exercise of the power conferred be upheld by the judiciary."

It would seem upon principle that the provisions of a contract for the expenditure of a special fund for a designated improvement should be subject to the same test of reasonableness, or the lack thereof, as are the provisions of a city ordinance. Many cases so hold, among them the case cited by the defendants of City of Chester v. Kennedy, 344 Ill. 224, 176 N.E. 430. The motives which prompt the members of a city council or city commission to vote for the passage of a city ordinance or for the entering into of a contract in behalf of the city cease when the ordinance is passed or the contract is executed, but the provisions of an ordinance and likewise of an executed contract live on to affect the weal or the woe of the public or some part thereof. The public is more vitally concerned with what is done than with why it was done.

If, however, we may inquire into the motives which prompted the members of the city commission to place the objectionable provisions in the proposed contract, such inquiry is bound to lead to confusion unless we keep in mind the fact that the funds derived from the sale of the sewer bonds may not lawfully be used for any purpose other than the proposed improvement. Motives which prompt the use of the bond money here in question, or any part thereof, to a purpose other than the construction of the sewer are not entitled to judicial sanction because the mandate of our State Constitution, article 14, § 5, directs for what purpose such money, and the whole thereof, shall be expended.

The laws of this state prescribe ways in which a municipality may construct municipal improvements. They may be constructed by the letting of a contract, or they may, in some instances, be constructed under the direction of the proper officers of the municipality. When the estimated cost of a contemplated improvement payable out of the general funds of a city such as Salt Lake exceeds the sum of $6,000, the city shall call for bids for making the same. If, after twice advertising for bids, no satisfactory bid less than the estimated cost of the proposed improvement shall be received, the board of commissioners may proceed to make the improvement under its own direction. Laws of Utah 1919, c. 14, p. 23. In case an improvement is to be paid for by a special tax or assessment, the city is required to let a contract for the construction thereof to the lowest responsible bidder. Laws of Utah 1921, c. 15, p. 59. The Legislature has failed to make provision for the manner in which a public improvement such as the one here involved shall be constructed. Because of that fact it is urged that the defendants may choose any manner of constructing the proposed storm sewer that they see fit so long as their actions in such respect are not capricious, arbitrary, or tainted with bad faith. The city may in my opinion without judicial interference proceed to construct the storm sewer in any one of the manners approved by the Legislature for the construction of other and similar public improvements. In the instant case the city has decided to let a contract for the construction of the sewer. Under such circumstances I can perceive of no valid reason why the city should not be held to at least as high a standard of vigilance to see that the fund here involved is devoted to the purpose for which it was created as would be required if the fund were appropriated by the city from the general fund or were to be paid from a special tax or assessment. To say that the city has authority to fix a minimum wage which the contractor shall pay to his employees and require that he, so far as possible, dispense with the use of machinery in the one case, but that it does not have such authority in the other, is, as it seems to me, without foundation in law or reason. Independent of statute, the city commissioners as trustees of the bond money are required to see that it is honestly, prudently, and economically expended for the construction of the storm sewer and for no other purpose. The effect of dispensing with the use of machinery and of fixing a minimum wage in the construction of public work by a contractor is a matter of farreaching effect, and such power, if it exists at all, is with the Legislature and may not be exercised by the municipality independent of an express legislative grant.

It is further urged on behalf of defendants that the placing of the objectionable provisions in the contract here involved is justified because of the great number of persons out of employment. It is not the work of the courts or of the city commission to put humanitarian impulses into form of law at the expense of a fund created by the taxpayers for a special purpose. Nor is it by any means certain that impulses of humanitarianism point to the wisdom of approving contracts containing provisions such as are here complained of. We may take judicial notice, not only of the fact that many persons are out of employment, but we may also take judicial notice of the fact that the modern tendencies of our municipalities are to create more assessment districts, to issue more bonds, and to place greater and greater burdens upon property. Prosperity bought upon credit must eventually in the end force many of those who now own their own homes or their own business to give them up and at the same time deter others from buying homes or setting up in business. Authorities are not lacking who attribute the economic ills of today to the extravagance and waste of yesterday. The money derived from the purchase of sewer bonds comes from a citizenry who are equally deserving and whose number and needs may be equally as great when they are called upon to pay the bonds as are those who may secure employment on the contemplated improvement. Be that as it may, those who made it possible for the contemplated improvement to be constructed are entitled to have the money derived from the sale of the bonds which constitute a lien upon their property devoted to the purposes for which it was voted, and it is the duty of the city commissioners to see that it is so expended. Whenever trustees of a special fund purposely undertake to devote trust funds or any part thereof to a purpose other than that for which the fund was created it becomes the duty of the courts, upon application of an interested party, to arrest such undertaking. Our law does not recognize good faith or a lofty purpose as a legal excuse for diverting a special fund or any part thereof to a purpose other than that contemplated in the creation of such a fund. Exigencies do not change the rule. Nor is the rule relaxed by the pretense of keeping within it. The law looks to the substance, not to the form. The use of the money derived from the sale of the sewer bonds is limited to the objects and purposes of constructing a storm sewer. When, as here, it is admitted on behalf of the defendants that the sole purpose of requiring the greater part of the work of constructing the storm sewer to be done by hand labor, supplied by an agency created by the city, is to assist some of those who are unemployed, and when it is further conceded that because of such plan the cost of the improvement will be increased $55,000, there is no escape from the conclusion that the city commission, if permitted to carry out such plan, will purposely and effectively divert a part of the special fund to a purpose and object not authorized by the taxpayers who created the fund. To say that those who may work on the sewer under the proposed plan will earn the money paid to them does not answer the objection. So far as the plaintiff taxpayer is concerned, if he has no valid objection to the construction of the storm sewer under the proposed plan, I am unable to see how he could be heard to complain if the city were to construct the sewer in the usual way and then apply the money thus saved to some charitable or other purpose. In either event the property taxpayer will receive the same benefits and will be required to pay the same amount of taxes towards the satisfaction of the principal and interest upon the bonds. To say that a special fund may be purposely depleted so long as such depletion is in some way connected with the object for which the fund is created is to say that substance must give way to form, and that one may do indirectly that which he may not do directly. Such doctrine is contrary to principles of law that are axiomatic.