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SAMPLE-DOC:
CHARLES BISHOP, Plaintiff and Appellant, v. CITY OF SAN JOSE et al., Defendants
and Respondents
S. F. No. 22677
Supreme Court of California
1 Cal. 3d 56; 460 P.2d 137; 81 Cal. Rptr. 465; 1969 Cal. LEXIS 192
October 30, 1969
SUBSEQUENT HISTORY:
Appellant's petition for a rehearing was denied November 26, 1969. Draper, J.
pro tem., * and Sims, J. pro tem., * sat in place of Tobriner, J., and Sullivan,
J., who deemed themselves disqualified. Peters, J., Mosk, J., and Sims, J. pro
tem., * were of the opinion that the petition should be granted.
* Assigned by the Chairman of the Judicial Council.
PRIOR HISTORY:
Superior Court of Santa Clara Couny, O. Vincent Bruno, Judge.
DISPOSITION: The judgment is affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff, a resident and taxpayer (resident), appealed a
judgment of the Superior Court of Santa Clara County (California), in favor of
defendant city, which declared the prevailing wage provisions found in certain
sections of the Cal. Lab. Code § 1770 et seq., to be inapplicable to the
employees of the city, and denied relief sought by way of injunction and
damages.
OVERVIEW: The resident filed an action against the city contending that from
1958 to 1966, the city unlawfully failed to pay its electricians the prevailing
rate of per diem wages for work of a similar character, pursuant to the
prevailing wage law. The trial court entered judgment in favor of the city,
finding that the setting and payment of salaries for the city's own employees
were municipal affairs to which, under the home rule provisions of Cal. Const.
art. XI, §§ 6, 8, the prevailing wage provisions of Cal. Lab. Code § 1770 et
seq. did not apply. The court held that the trial court correctly ruled that
Cal. Lab. Code §§ 1724, 1771, 1773, indicated that the legislature had not
intended that the prevailing wage laws apply to the setting of the salaries of
the city's employees, and, specifically, that § 1771 did not apply to work
carried out by a public agency with its own forces.
OUTCOME: The court affirmed the judgment in favor of the city.
CORE TERMS: municipal, charter, public work, prevailing wage law, public works,
statewide concern, wage, chartered, municipal affair, subject matter,
regulation, home rule, prevailing wage, locality, electrician, work done,
general law, expenditure, italics, municipality, statewide, assignors, matter of
statewide concern, per diem, matter of state concern, general prevailing rate,
local concern, contracted, legislate, disclose
LexisNexis(R) Headnotes Hide Headnotes
Governments > Local Governments > Duties & Powers
HN1 See Cal. Const. art. XI, § 11.
Governments > Local Governments > Duties & Powers
Governments > State & Territorial Governments > Relations With Governments
HN2 Cal. Const. art. XI, §§ 6, 8 permit freeholder charter cities, by
appropriate charter amendments, to acquire autonomy with respect to all
municipal affairs. A city which adopts such "home rule" amendments gains
exemption, with respect to its municipal affairs, from the "conflict with
general laws" restrictions of Cal. Const. art. XI, § 11. More Like This
Headnote
Governments > Local Governments > Charters
Governments > State & Territorial Governments > Relations With Governments
HN3 As to matters of statewide concern, home rule charter cities remain subject
to and controlled by applicable general state laws regardless of the provisions
of their charters, if it is the intent and purpose of such general laws to
occupy the field to the exclusion of municipal regulation. More Like This
Headnote
Governments > Local Governments > Duties & Powers
Governments > State & Territorial Governments > Relations With Governments
HN4 Local governments, whether chartered or not, do not lack the power, nor are
they forbidden by the California Constitution, to legislate upon matters which
are not of a local nature, nor is the legislature forbidden to legislate with
respect to the local municipal affairs of a home rule municipality. Instead, in
the event of conflict between the regulations of state and of local governments,
or if the state legislation discloses an intent to preempt the field to the
exclusion of local regulation, the question becomes one of predominance or
superiority as between general state laws on the one hand and the local
regulations on the other. More Like This Headnote
Governments > Legislation > Interpretation
Governments > State & Territorial Governments > Relations With Governments
HN5 If a determination is required as to whether a matter regulated by a local
government is a state or a municipal affair, because the various sections of
Cal. Const. art. XI fail to define municipal affairs, the reviewing court must
decide, under the facts of each case, whether the subject matter under
discussion is of municipal or statewide concern. More Like This Headnote
Governments > Legislation > Interpretation
Governments > State & Territorial Governments > Relations With Governments
HN6 In exercising the judicial function of deciding whether a matter is a
municipal affair or of statewide concern, the reviewing court is to give great
weight to the purpose of the legislature in enacting general laws which disclose
an intent to preempt the field to the exclusion of local regulation. The factors
which influenced the legislature to adopt the general laws may likewise lead the
reviewing court to the conclusion that the matter is of statewide rather than
merely local concern. The fact, standing alone, that the legislature has
attempted to deal with a particular subject on a statewide basis is not
determinative of the issue as between state and municipal affairs, nor does it
impair the constitutional authority of a home rule city or county to enact and
enforce its own regulations to the exclusion of general laws if the subject is
held by the reviewing court to be a municipal affair rather than of statewide
concern. More Like This Headnote
Labor & Employment Law > Wage & Hour Laws > Governmental Employees
Public Contracts Law > Types of Contracts > Local Contracts Generally
HN7 Because Cal. Lab. Code § 1771 directs that the wage to be paid is that
prevailing in the "locality in which the public work is performed," and Cal.
Lab. Code § 1724 states that the expression encompasses only situations in which
a contract to do public work has been awarded, Cal. Lab. Code § 1771 is
applicable only to work performed under contract, and is not applicable to work
carried out by a public agency with its own forces. More Like This Headnote
Labor & Employment Law > Wage & Hour Laws > Wage Payments
HN8 See Cal. Lab. Code § 1771.
Public Contracts Law > Types of Contracts > Local Contracts Generally
HN9 See Cal. Lab. Code § 1724.
Public Contracts Law > Types of Contracts > Local Contracts Generally
HN10 "Political subdivision" is defined by Cal. Lab. Code § 1721 to include any
city. More Like This Headnote
Public Contracts Law > Types of Contracts > Local Contracts Generally
HN11 See Cal. Lab. Code § 1773.
Labor & Employment Law > Wage & Hour Laws > Exemptions
HN12 The prevailing wage and competitive bidding statutes in California have no
application to work undertaken by force account or day labor. More Like This
Headnote
Governments > Legislation > Interpretation
HN13 Statutes are to be interpreted by assuming that the legislature was aware
of the existing judicial decisions. Failure to make changes in a given statute
in a particular respect when the subject is before the legislature, when changes
are made in other respects, is indicative of an intention to leave the law
unchanged in that respect. More Like This Headnote
Show Headnotes / Syllabus
COUNSEL: Morgan, Beauzay & Hammer, Morgan, Beauzay, Wylie, Ferrari & Leahy,
Robert Morgan, Kraft & Kraft and Eleanor M. Kraft for Plaintiff and Appellant.
Brundage & Hackler, Daniel Feins, Charles P. Scully and Donald C. Carroll as
Amici Curiae on behalf of Plaintiff and Appellant.
Ferdinand P. Palla, City Attorney, Richard K. Karren, Assistant City Attorney,
and Harry Kevorkian, Deputy City Attorney, for Defendants and Respondents.
John D. Maharg, County Counsel (Los Angeles), Edward H. Gaylord, Assistant
County Counsel, Leonard Putnam, City Attorney (Long Beach), Charles E.
Greenberg, Deputy City Attorney, Rutan & Tucker, Harry J. Keaton, James E.
Erickson, J. Nicholas Counter III, E. K. Davis, David S. Kaplan, John B.
Reilley, Frank E. Howard and Wayne N. Witchez as Amici Curiae on behalf of
Defendants and Respondents.
JUDGES: In Bank. Opinion by Burke, J., with Traynor, C. J., McComb, J., and
Draper, J. pro tem., * concurring. Separate dissenting opinion by Peters, J.,
with Mosk, J., and Sims, J. pro tem., * concurring.
* Assigned by the Chairman of the Judicial Council.
OPINIONBY: BURKE
OPINION: [*59] [**138] [***466] Plaintiff appeals from a judgment
declaring the prevailing wage provisions found in certain sections of the Labor
[**139] [***467] Code to be inapplicable to the employees of defendant city,
and denying relief sought by way of injunction and damages. n1 As hereinafter
appears, we have concluded that the trial court ruled correctly with respect to
the prevailing wage law, that no other ground for reversal has been shown, and
that the judgment should be affirmed.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Plaintiff instituted this action as a resident and taxpayer of defendant
city, as the business agent of a labor union local, and as the assignee of
certain union members employed by the city as electricians.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*60] Plaintiff contends that from 1958 to 1966 defendant city unlawfully
failed to pay its electricians the prevailing rate of per diem wages for work of
a similar character, pursuant to the prevailing wage law ( Lab. Code, § 1770 et
seq.), and also failed to seek competitive bids for certain improvement and
construction projects, pursuant to provisions of the city charter.
The city is a freeholders' charter city organized under the Constitution and
laws of this state. Until May 1965 the city operated under its 1915 charter, as
amended, and since 1965 it has operated under its 1965 charter, as amended. Both
charters contain "home rule" provisions (Cal. Const., art. XI, §§ 6, 8, subd.
(j)), and provisions requiring that all public buildings and works costing more
than a specified amount shall be done by contract and let to the lowest
responsible bidder. n2 Neither charter contains any provisions relating to
prevailing wages; however, the city council periodically enacts prevailing wage
ordinances.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 1915 charter, section 89: "All public buildings and works, when the
expenditure therefor shall exceed one thousand dollars ($ 1,000.00), shall be
done by contract and shall be let to the lowest responsible bidder, after
advertising . . . ." (Stats. 1957, p. 4344.)
1965 charter, section 1217: "Except as hereinafter otherwise provided, each
purchase of supplies and materials the expenditure for which exceeds One
Thousand Dollars ($ 1,000), each purchase of equipment the expenditure for which
exceeds Two Thousand Dollars ($ 2,000) and each specific 'public works project,'
hereinafter defined, the expenditure for which (excluding the cost of any
materials which the City may have already lawfully acquired therefor) exceeds
the amount which a general law City of the State of California may legally
expend for a public project (as defined by State law) without a contract let to
a lowest responsible bidder after notice, shall be contracted for and let to the
lowest responsible bidder after notice; provided, however, that in no event
shall the above apply to any specific 'public works project' the expenditure for
which (excluding the cost of any materials which the City may have already
lawfully acquired therefor) does not exceed Two Thousand Five Hundred Dollars ($
2,500).
". . . .
"For purposes of this Section, 'public works project' shall be deemed to mean
and is hereby defined as a project for the construction, erection, improvement
or demolition of any public building, street, bridge, drain, ditch, canal, dam,
tunnel, sewer, water system, fire alarm system, electrical traffic control
system, street lighting system, parking lot, park or playground; provided and
excepting that 'public works project' shall not be deemed to mean or include the
maintenance of any of said things, or any repairs incidental to such
maintenance. . . . Also, the provisions of this Section shall not apply to any
of the following: . . . (b) the purchase of any supplies, materials or equipment
which can be obtained from only one vendor or manufacturer; . . . (f) work
involving highly technical or professional skill where the peculiar technical or
professional skill or ability of the person selected to do such work is an
important factor in his selection; (g) expenditures deemed by the Council to be
of urgent necessity for the preservation of life, health or property, provided
the same are authorized by resolution of the Council adopted by the affirmative
vote of at least five (5) members of the Council and containing a declaration of
the facts constituting the urgency; and (h) situations where solicitation of
bids would for any reason be an idle act." (Stats. 1965, pp. 5122, 5159.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Plaintiff's assignors are among some 17 electricians employed by the city who
work under the city electrician and have performed additions, [*61]
modification, maintenance and repair of city electrical facilities, buildings
and equipment, including street lights, traffic signals, fire alarm boxes
[**140] [***468] and systems, etc. The electricians are civil service
employees of the city, and since 1958 have been paid monthly salaries on a
year-round, full-time basis, n3 plus extra pay for overtime and holiday work,
and plus various other benefits such as holidays, vacation and sick leave,
health insurance and retirement benefits. In 1963 the work of the city
electricians was approximately 40 percent new construction, but at the time of
trial (1965-1966) the workload was only some 16 percent construction with
maintenance taking up the other 84 percent.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 The pre-1958 earnings of the electricians are not in issue here, but were
apparently based on a union scale.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Plaintiff's complaint focuses on four kinds of work n4 done by the city
electricians between 1958 and 1966, assertedly in violation of the prevailing
wage law and of the respective $ 1,000 and $ 2,500 project limits of the 1915
and the 1965 city charters. (Fn. 2, ante.) The trial court ruled, among other
things, that both the four kinds of work and the setting and payment of salaries
for the city's own year-round, full-time, civil service employees are purely
municipal affairs to which, under the home rule provisions of article XI of the
California Constitution, the prevailing wage provisions of Labor Code sections
1771 et seq., relied upon by plaintiff, cannot be applied; that in any event the
prevailing wage law does not as a matter of statutory construction apply to the
setting of such salaries. The court also found that the city at all times acted
in the good faith belief that the prevailing wage provisions do not apply to the
salaries paid to its own employees.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 The four kinds of work: (1) fire alarm system; (2) overhead traffic signals;
(3) IBM project; (4) miscellaneous electrical work at the municipal airport, in
a park, and inside the city hall.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
CA(1)(1) At all times since adoption of the HN1Constitution in 1879, section 11
of article XI has specified that "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." (Italics added.) In 1896
section 6 of article XI was amended to provide a limited amount of autonomy for
freeholders' charter cities, and in 1914 HN2sections 6 and 8 of article XI were
amended to permit such cities, by appropriate charter amendments, to acquire
autonomy with respect to all municipal affairs. A city which adopted such "home
rule" amendments thereby gained exemption, with respect to its municipal
affairs, from the "conflict with general laws" restrictions of section 11 of
article XI.
HN3As to matters which are of statewide concern, however, home rule charter
cities remain subject to and controlled by applicable general state laws
regardless of the provisions of their charters, if it is the intent and purpose
of such general laws to occupy the field to the exclusion of [*62] municipal
regulation (the preemption doctrine). (Pacific Tel. & Tel. Co. v. City & County
of San Francisco (1959) 51 Cal.2d 766, 768-769 [336 P.2d 514]; Pipoly v. Benson
(1942) 20 Cal.2d 366, 369-370 [125 P.2d 482, 147 A.L.R. 515].)
CA(2)(2) As is made clear in the leading case of Pipoly v. Benson, supra,
HN4local governments (whether chartered or not) do not lack the power, nor are
they forbidden by the Constitution, to legislate upon matters which are not of a
local nature, nor is the Legislature forbidden to legislate with respect to the
local municipal affairs of a home rule municipality. Instead, in the event of
conflict between the regulations of state and of local governments, or if the
state legislation discloses an intent to preempt the field to the exclusion of
local regulation, the question becomes one of predominance or superiority as
between general state laws on the one hand and the local regulations on the
other. (See also e.g. Galvan v. Superior Court (1969) 70 Cal.2d 851, 856-866 [76
Cal.Rptr. 642, 452 P.2d 930]; Abbott v. City of Los Angeles (1960) 53 Cal.2d
674, 681-684 [3 Cal.Rptr. [**141] [***469] 158, 349 P.2d 974, 82 A.L.R.2d
385]; n5 Chavez v. Sargent (1959) 52 Cal.2d 162, 176-177 [339 P.2d 801]; Agnew
v. City of Los Angeles (1958) 51 Cal.2d 1, 5 [330 P.2d 385]; Wilson v. Beville
(1957) 47 Cal.2d 852, 856-861 [306 P.2d 789]; Eastlick v. City of Los Angeles
(1947) 29 Cal.2d 661, 665-666 [177 P.2d 558, 170 A.L.R. 225]; Southern Cal.
Roads Co. v. McGuire (1934) 2 Cal.2d 115, 123 [39 P.2d 412].)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 That the statement appearing in Abbott (p. 681 [5] of 53 Cal.2d) that "A city
has no power to legislate upon matters which are not of a local nature" was
improvident is made clear by the later opinion of the same author, in Galvan v.
Superior Court, supra, 70 Cal.2d 851, 856-866. (Italics added.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
CA(3)(3) HN5If resolution of that question requires a determination as to
whether the matter regulated is a state or a municipal affair, then, as declared
in Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276,
294 [32 Cal.Rptr. 830, 384 P.2d 158], "Because the various sections of article
XI fail to define municipal affairs, it becomes necessary for the courts to
decide, under the facts of each case, whether the subject matter under
discussion is of municipal or statewide concern." In other words, "No exact
definition of the term 'municipal affairs' can be formulated, and the courts
have made no attempt to do so, but instead have indicated that judicial
interpretation is necessary to give it meaning in each controverted case. The
comprehensive nature of the power is, however, conceded in all the decisions. .
. ." Butterworth v. Boyd (1938) 12 Cal.2d 140, 147 [82 P.2d 434, 126 A.L.R.
838]; see also City of Pasadena v. Charleville (1932) 215 Cal. 384, 392 [5] [ 10
P.2d 745].) CA(4)(4) Further, [*63] the "constitutional concept of municipal
affairs . . . changes with the changing conditions upon which it is to operate.
What may at one time have been a matter of local concern may at a later time
become a matter of state concern controlled by the general laws of the state.
[Citations.]" ( Pacific Tel. & Tel. Co. v. City & County of San Francisco,
supra, 51 Cal.2d 766, 771, 775-776; Butterworth v. Boyd, supra.)
CA(5)(5) CA(6)(6) HN6In exercising the judicial function of deciding whether a
matter is a municipal affair or of statewide concern, the courts will of course
give great weight to the purpose of the Legislature in enacting general laws
which disclose an intent to preempt the field to the exclusion of local
regulation (see Ex parte Daniels (1920) 183 Cal. 636, 639-640 [192 P. 442, 21
A.L.R. 1172]), and it may well occur that in some cases the factors which
influenced the Legislature to adopt the general laws may likewise lead the
courts to the conclusion that the matter is of statewide rather than merely
local concern. However, the fact, standing alone, that the Legislature has
attempted to deal with a particular subject on a statewide basis is not
determinative of the issue as between state and municipal affairs, nor does it
impair the constitutional authority of a home rule city or county to enact and
enforce its own regulations to the exclusion of general laws if the subject is
held by the courts to be a municipal affair rather than of statewide concern;
stated otherwise, the Legislature is empowered neither to determine what
constitutes a municipal affair nor to change such an affair into a matter of
statewide concern. n6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 Any statements to the contrary found in In re Hubbard (1964) 62 Cal.2d 119,
127-128 [41 Cal.Rptr. 393, 396 P.2d 809], were not only unnecessary to the
decision there but are overruled if they be deemed authoritative. In City of
Redwood City v. Moore (1965) 231 Cal.App.2d 563, 580-581 [42 Cal.Rptr. 72], the
court was misled into contrary statements by overemphasis on the comment in
Professional Fire Fighters, Inc. v. City of Los Angeles, supra, 60 Cal.2d 276,
294, that the question as to whether a matter is of municipal or statewide
concern "must be determined [by the courts] from the legislative purpose in each
individual instance." As we have noted, the courts will give great weight to the
legislative purpose and may be influenced by the same factors as was the
Legislature; but the view expressed in Moore, supra, that the Legislature has
"the power to change a municipal affair into a matter of statewide concern," is
disapproved.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**142] [***470] In the present case it clearly appears from the provisions
of the prevailing wage law here involved that the Legislature did not intend
that that law apply to the setting of the salaries of employees of a city,
whether chartered or not.
CA(7)(7) Section 1771 of the Labor Code, n7 relied upon by plaintiff, is found
in chapter 1 of part 7. n8 Part 7 is entitled "Public Works and Public [*64]
Agencies." Chapter 1 deals with "Public Works" and commences with section 1720.
Section 1720 defines public works n9 as used in chapter 1, and section 1724
defines the expression "Locality in which public work is performed." n10
HN7Inasmuch as section 1771 directs that the wage to be paid is that prevailing
in the "locality in which the public work is performed," and section 1724 states
that that expression encompasses only situations in which a contract to do
public work has been awarded, it becomes at once apparent that section 1771 is
by its own terms applicable only to work performed under contract, and is not
applicable to work carried out by a public agency with its own forces.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 HN8Section 1771, in pertinent part: "Not less than the general prevailing
rate of per diem wages for work of a similar character in the locality in which
the public work is performed . . . shall be paid to all workmen employed on
public works exclusive of maintenance work." (Italics added.)
n8 Subsequent section references herein are to the Labor Code, unless otherwise
stated.
n9 For purposes of this opinion it may be assumed, without deciding, that the
four kinds of work on which plaintiff's complaint focuses (see fn. 4, ante) fall
within the section 1720 definition of public works.
n10 HN9Section 1724: "'Locality in which public work is performed' means the
county in which the public work is done in cases in which the contract is
awarded by the State, and means the limits of the political subdivision on whose
behalf the contract is awarded in other cases." (Italics added.)
It is also noted that as used in chapter 1, HN10"Political subdivision" is
defined by section 1721 to include "any" city.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
CA(8)(8) Plaintiff also points to the clause in section 1773 directing that the
"body awarding any contract for public work, or otherwise undertaking any public
work . . ." shall ascertain the prevailing wage rate. n11 (Plaintiff's italics.)
Again, however, as is clear from the entire provision, from which plaintiff has
extracted a portion out of context, the direction to ascertain the prevailing
wage not only is tied to the "locality" definition (see fn. 10, ante) and thus
to the area in which the contracted work is to be performed, but the direction
of section 1773 is that after such wage has been ascertained it shall be
specified in the call for bids for the contract and in the contract.
Accordingly, nothing found in section 1773 lends a scintilla of support to
plaintiff's contention that the prevailing wage law was intended by the
Legislature to apply to other than public work let out to contract. No useful
purpose would be served by here undertaking to detail other sections of the
prevailing wage law as set forth in chapter 1 of part 7 of the Labor Code, but
it is appropriate to note that the entire tenor thereof discloses a legislative
purpose to deal only with contracted public work, and not with work done by a
municipality by force account. (See, e.g., §§ 1773.3, 1773.4, 1774, 1775, 1776.)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 HN11The full sentence of section 1773 from which plaintiff has quoted reads
in pertinent part: "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 . . . and
shall specify in the call for bids for the contract, . . . and in the contract
itself, what the general prevailing rate of . . . wages . . . in the locality
is. . . ." (Italics added.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Additionally, the court so construed the law in Beckwith v. County of Stanislaus
(1959) 175 Cal.App.2d 40, 48 [345 P.2d 363], with the declaration that [**143]
[***471] "HN12The prevailing wage and competitive bidding statutes [*65]
have no application to work undertaken by force account or day labor." Since
Beckwith the statute has remained unchanged in any aspect material here,
although amended in other respects. n12 CA(9)(9) "HN13Statutes are to be
interpreted by assuming that the Legislature was aware of the existing judicial
decisions. [Citation.] Moreover, failure to make changes in a given statute in a
particular respect when the subject is before the Legislature, and changes are
made in other respects, is indicative of an intention to leave the law unchanged
in that respect." ( Williams v. Industrial Acc. Com. (1966) 64 Cal.2d 618, 620
[51 Cal.Rptr. 277, 414 P.2d 405], and cases there cited; Alter v. Michael (1966)
64 Cal.2d 480, 482 [50 Cal.Rptr. 553, 413 P.2d 153]; Kusior v. Silver (1960) 54
Cal.2d 603, 618 [7 Cal.Rptr. 129, 354 P.2d 657].)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12 See Statutes 1963, chapter 467, page 1320, and chapter 1786, page 3592;
Statutes 1965, chapter 283, page 1284; Statutes 1968, chapters 699, 880, 1411.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
CA(10)(10) With respect to the project limitations of $ 1,000 and $ 2,500
specified, respectively, in the 1915 and 1965 charters (fn. 2, ante), the trial
court found and concluded, among other things, that the city has instituted and
is following workable and effective procedures to guard against any violations
of the requirements of section 1217 of the 1965 charter and intends in good
faith to comply with such requirements. Plaintiff has thus shown no impropriety
in the denial by the trial court of injunctive relief.
CA(11)(11) Other than plaintiff's claim that his assignors as city employees
would have received higher earnings under the prevailing wage law, which we hold
did not apply, plaintiff does not suggest that he made any showing which would
controvert the trial court's ruling that neither plaintiff, his assignors, his
union, nor members of his union have suffered any loss or damage by reason of
the work done by the city's own employees. Accordingly, it is unnecessary in
this opinion to attempt to weigh the four kinds of work as against the charter
project limitations. Ample preventive remedies are available to taxpayers and
citizens in the event of any attempt or threat to violate the public bidding
requirements of the charter. We in no way condone any past evasion of those
provisions, as public bidding serves many sound governmental purposes. However,
in our view plaintiff's requested remedy by way of award for the benefit of his
assignors is neither a proper remedy after the event nor a desirable preventive
measure, and would fail to reach the real issue of possible violations of the
charter.
The judgment is affirmed.
DISSENTBY: PETERS
DISSENT: PETERS, J. I disagree with the majority in three fundamental respects:
(1) as to the effect to be given to the "home rule" provisions of article [*66]
XI of the California Constitution; (2) as to the proper construction of section
1720 et seq. of the Labor Code; and (3) as to the effect to be given to the
violations of the city's own charter.
I
I cannot agree with the statements in the majority opinion that a city which
adopted "home rule" amendments to its charter pursuant to sections 6 and 8 of
article XI of the California Constitution "thereby gained exemption, with
respect to its municipal affairs, from the 'conflict with general laws'
restrictions of section 11 of article XI," that "in the event of conflict
between the regulations of state and of local governments, or if the state
legislation discloses an intent to preempt the field to the exclusion of local
regulation, the question becomes one of predominance or superiority as between
general [**144] [***472] state laws on the one hand and the local
regulations on the other," and that in "exercising the judicial function of
deciding whether a matter is a municipal affair or of statewide concern, the
courts will of course give great weight to the purpose of the Legislature in
enacting general laws which disclose an intent to preempt the field to the
exclusion of local regulation (see Ex parte Daniels (1920) 183 Cal. 636, 639-640
[192 P. 442, 21 A.L.R. 1172]), and it may well occur that in some cases the
factors which influenced the Legislature to adopt the general laws may likewise
lead the courts to the conclusion that the matter is of statewide rather than
merely local concern. However, the fact, standing alone, that the Legislature
has attempted to deal with a particular subject on a statewide basis is not
determinative of the issue as between state and municipal affairs, nor does it
impair the constitutional authority of a home rule city or county to enact and
enforce its own regulations to the exclusion of general laws if the subject is
held by the courts to be a municipal affair rather than of statewide concern;
stated otherwise, the Legislature is empowered neither to determine what
constitutes a municipal affair nor to change such an affair into a matter of
statewide concern." (Ante, pp. 61-63; footnote omitted.)
I cannot agree that in cases where there is a conflict between local and state
law or where there is a legislative intent to preempt the field, the problem is
whether the subject matter is a municipal rather than state concern. The proper
rule is that set forth in Professional Fire Fighters, Inc. v. City of Los
Angeles, 60 Cal.2d 276, 292 [32 Cal.Rptr. 830, 384 P.2d 158], "general law
prevails over local enactments of a chartered city, even in regard to matters
which would otherwise be deemed to be strictly municipal affairs, where the
subject matter of the general law is of statewide concern." In other words, in
cases of conflict and preemption, the inquiry ends once a statewide concern is
found, and there is no need to weigh the state and municipal concerns or to
determine which should predominate.
[*67] We applied the principle in Professional Fire Fighters where we
recognized that the statutory provisions permitting unionization of firemen "may
impinge" upon local control but held that since the statutory provisions were
part of a scheme of legislation to create uniform fair labor practices
throughout the state they were a matter of state concern. (60 Cal.2d at pp.
294-295.) Twenty-two cases were cited in the Professional Fire Fighters opinion
"all dealing with various phases of municipal affairs held to be subject to
general laws on the basis of statewide concern." (60 Cal.2d at pp. 293-294.)
The majority has impliedly overruled Professional Fire Fighters and these 22
cases. There is no justification for this grave departure from existing law. The
rigid approach suggested by the majority, that matters are either a municipal
affair or of state concern, ignores the basic realities of most situations.
Logically, there are four categories. First is the situation where there are
solely state concerns, and the subject matters of the municipal regulation and
the state statute do not affect municipal affairs. Second is the situation where
the subject matter of the municipal regulation and the state statute is a matter
which involves both municipal and statewide concerns. Third is the situation
where although the subject matter is one ordinarily subject to municipal
regulations, such as relations with municipal employees, parts of the subject
may also involve matters of statewide concern. Fourth is the situation where the
subject matter solely involves municipal affairs and no matters of statewide
concern are involved.
The first situation is reflected by Wilson v. Beville, 47 Cal.2d 852, 856-857
[306 P.2d 789], where this court held that claim requirements for the taking of
property by eminent domain is not a municipal affair [**145] [***473] but is
a matter of statewide concern that may be regulated only by the Legislature.
(See In re Hubbard, 62 Cal.2d 119, 127 [41 Cal.Rptr. 393, 396 P.2d 809].) The
court held invalid a city charter claim-filing provision insofar as it applied
to actions in inverse condemnation. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The majority does not disapprove Wilson, although it does disapprove a
statement in Abbott v. City of Los Angeles, 53 Cal.2d 674, 681 [3 Cal.Rptr. 158,
349 P.2d 974, 82 A.L.R.2d 385], that a "city has no power to legislate upon
matters which are not of a local nature." (Ante, p. 62, fn. 5.) The next
succeeding sentence of the Abbott opinion, which deals with matters which are a
"mixed concern" of both municipalities and the state, makes it clear that the
disapproved statement is concerned with matters solely of statewide concern. In
my view, we should adhere to the statements of Abbott and Hubbard, and the
holding of Wilson.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The second situation is reflected by In re Hubbard, supra, 62 Cal.2d 119,
127-128, where we recognized that the regulation of gambling is a matter of both
local and statewide concern. We there held that in the absence of conflict with
general law "chartered counties and cities have full power to legislate in
regard to municipal affairs unless: (1) the subject matter has been so fully and
completely covered by general law as to clearly indicate [*68] that it has
become exclusively a matter of state concern; (2) the subject matter has been
partially covered by general law couched in such terms as to indicate clearly
that a paramount state concern will not tolerate further or additional local
action; or (3) the subject matter has been partially covered by general law, and
the subject is of such a nature that the adverse effect of a local ordinance on
the transient citizens of the state outweighs the possible benefit to the
municipality." (62 Cal.2d at p. 128.) It should be pointed out that each of the
three categories mentioned in the case is dependent upon a statewide concern,
which because of legislative action or the subject matter, takes precedence over
municipal affairs.
The third situation is reflected by Professional Fire Fighters, where the
general subject in issue is a municipal affair but there are also matters of
statewide concern. There it was recognized that the relations of a municipality
with its employees in general is a matter of municipal concern but that the
creation of uniform fair labor practices throughout the state is a matter of
state concern and that regulations of a charter city in conflict with statutes
governing labor relations of firemen were invalid. (60 Cal.2d at p. 289 et seq.)
The fourth situation, where the subject is solely municipal affairs so that
enactments of the Legislature will be held invalid as applied to chartered
cities and counties, is difficult to illustrate. The only case of this court
cited by the majority, and the most recent one that I have found where it was
held that legislation could not be validly held applicable to a chartered city
or county is City of Pasadena v. Charleville (1932) 215 Cal. 384 [10 P.2d 745],
and, as will appear hereinafter, that case should be disapproved. Furthermore,
the two most recent cases discussing the problem of conflict between local and
state law contain language indicating that the state law must always prevail. (
Galvan v. Superior Court, 70 Cal.2d 851, 856 [76 Cal.Rptr. 642, 452 P.2d 930];
Bellus v. City of Eureka, 69 Cal.2d 336, 346 [71 Cal.Rptr. 135, 444 P.2d 711];
see also Natural Milk etc. Assn. v. City etc. of San Francisco, 20 Cal.2d 101,
110 [124 P.2d 25].)
I must confess that I find it somewhat incongruous that a chartered city may
authorize conduct the state has prohibited, prohibit conduct that the state has
authorized, engage in activities that the state has prohibited or refuse to
comply with state law where the Legislature has clearly declared its intent that
its statutes are to be applicable in and to the chartered city. Nevertheless,
cases have continued to state that as to solely municipal affairs, ordinances
[**146] [***474] of chartered cities will take precedence over conflicting
statutes. (E.g., Professional Fire Fighters, Inc. v. City of Los Angeles, supra,
60 Cal.2d 276, 291; Pipoly v. Benson, 20 Cal.2d 366, 369 [125 P.2d 482, 147
A.L.R. 515].)
If it be assumed that there are some matters so local in nature that the [*69]
Legislature's power to regulate will be limited to nonchartered cities and
counties, it is apparent that such matters must be very rare. Equally rare are
cases coming within the first situation where there are no local concerns so
that even in the absence of state regulation chartered cities and counties may
not act.
Most if not all matters upon which the state or chartered cities and counties
legislate fall within the second and third categories where in the absence of
conflicting state statutes or state occupation of the field chartered cities and
counties may properly act. When the Legislature adopts a conflicting statute or
occupies the field in such a case, the ordinance or the local regulation becomes
invalid. This is the basis of Professional Fire Fighters, where we held that
although ordinarily labor relations of municipal employees are a matter of local
concern, uniform fair labor practices are a matter of state concern, and when
the Legislature adopted a statute establishing uniform fair labor practices, a
matter involving statewide concerns, the statute was controlling against
conflicting municipal law. In other words, in the overwhelming majority of
situations, if not all situations, as stated by Justice Molinari in City of
Redwood City v. Moore, 231 Cal.App.2d 563, 580-581 [42 Cal.Rptr. 72], "the
Legislature does have the power to change a municipal affair into a matter of
statewide concern, and thus impinge upon local control, where it is the
legislative purpose to deal with the particular subject matter under discussion
on a statewide basis." Accordingly, I cannot agree with the majority that this
language should be disapproved.
For the same reason I cannot agree with the majority's disapproval of In re
Hubbard, supra, 62 Cal.2d 119, 127-128. Moreover, in disapproving Hubbard, the
majority fails to deal with the specific problem dealt with there and leaves the
law in an uncertain state as to an important problem which often arises in law
enforcement. Hubbard held that the Long Beach ordinance prohibiting gambling was
valid "except insofar as the ordinance may be applied to the 12 games and one
class of activity prohibited by Penal Code section 330." (62 Cal.2d at p. 128.)
Under Hubbard violations of the Penal Code section are prosecuted under state
law, and other gambling infractions under the ordinance. In overruling Hubbard
the majority does not tell us whether gambling is now to be considered a matter
"predominately" of local or statewide concern. I do not understand the majority
to repudiate the long-standing rule that where both state and local law prohibit
the same conduct, there is a conflict and only one is valid (e.g., In re Sic, 73
Cal. 142, 146-149 [14 P. 405]; Ex parte Daniels, supra, 183 Cal. 636, 645;
Abbott v. City of Los Angeles, supra, 53 Cal.2d 674, 683), and prosecutors and
judges will be required to guess whether conduct prohibited by both state and
local gambling laws should be prosecuted under the state or the local law.
[*70] Rather than weigh whether local or statewide concerns should
predominate, I would adhere to the rule of Professional Fire Fighters, that even
in regard to matters which would otherwise be deemed to be strictly municipal
affairs, general law prevails where the subject matter of the general law is of
statewide concern. The prevailing wage law clearly reflects statewide concerns.
The statutes before us deal with labor relations of persons employed on public
works projects and the minimum wages to be paid them. Professional Fire
Fighters, as we have seen, establishes that the subject of uniform fair labor
practices [**147] [***475] is a proper subject of statewide concern, and it
seems clear that minimum wages for employees is also such a matter. Although
municipal employment is obviously a matter of local concern, the Legislature, in
view of the statewide concerns, may properly adopt and make applicable to
chartered cities and counties the statutes before us.
City of Pasadena v. Charleville, supra, 215 Cal. 384, 388-393, which dealt with
the predecessors of the statutes before us, held that the state could not
properly require a chartered city to provide for prevailing wages in its call
for bids for a contract for a municipal improvement. The court suggested that
general minimum wage laws applicable to public and private employees might be
unconstitutional under Adkins v. Children's Hospital, 261 U.S. 525 [67 L.Ed.
785, 43 S.Ct. 394, 24 A.L.R. 1238]. The Adkins case has long been repudiated,
and it is now recognized that minimum wages are a proper subject of state
concern. ( West Coast Hotel Co. v. Parrish (1937) 300 U.S. 379 [81 L.Ed. 703, 57
S.Ct. 578, 108 A.L.R. 1330].) City of Pasadena v. Charleville, supra, should
also be overruled.
II
In concluding that the prevailing wage law as set in chapter I of part 7 of
division 2 of the Labor Code deals only with contracted public work and not with
work done by force account, the majority largely ignores the first section of
the chapter which makes clear that the prevailing wage law is not limited to
contracted work but applies also to certain work done by force account. That
section, 1720, provides:
"As used in this chapter 'public works' means: (a) Construction, alteration,
demolition or repair work done under contract and paid for in whole or in part
out of public funds, . . .
"(b) Work done for irrigation, utility, reclamation and improvement districts,
and other districts of this type. 'Public work' shall not include the operation
of the irrigation or drainage system of any irrigation or reclamation district,
. . .
"(c) Street, sewer or other improvement work done under the direction and
supervision or by the authority of any officer or public body of the State, or
of any political subdivision or district thereof, whether such [*71] political
subdivision or district operates under a freeholder's charter or not."
It seems clear that improvement work let by contract would come under
subdivision (a) of the section and that unless subdivision (c) is read to
include within the definition of "public works" improvement work done by force
account, subdivision (c) is meaningless. In addition subdivision (c) expressly
provides that it applies to chartered cities and counties.
Section 1771 of the Labor Code requires the payment of the prevailing rate of
wages to "all workmen employed on public works exclusive of maintenance work."
Section 1771 provides: "Not less than the general prevailing rate of per diem
wages for work of a similar character in the locality in which the public work
is performed, and not less than the general prevailing rate of per diem wages
for holiday and overtime work fixed as provided in this chapter, shall be paid
to all workmen employed on public works exclusive of maintenance work." (Italics
added.) It seems clear to me that the scope of the prevailing wage law is set
forth by the italicized matter and the definition of "public works" set forth in
the first section of the chapter.
Likewise, section 1773 provides 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. . . ." (Italics added.) The italicized words show that the
prevailing wage law is not limited to situations where contracts are awarded.
The majority rely upon the phrase "locality in which public work is performed"
appearing in sections 1771 and 1773 and defined in section 1724 as showing that
the prevailing wage law is only applicable [**148] [***476] where contracts
are let. Although it is true that section 1724 in defining the quoted term
speaks of contracts, this, at most, can only create a conflict within the
literal language of sections 1771 and 1773, and it is clear to me that the term
"public works" is used in those sections to show the scope of the application of
the prevailing wage law whereas the phrase relied upon by the majority is not
intended to limit the scope of the law but only to establish the method of
computation. In determining the legislative intent as to the scope of the
statute, we should look at the language used by the Legislature in the statute
to define the scope of the applicability of the prevailing wage law rather than
a phrase which merely relates to the computation of the prevailing wage. When
this is done, the definition of "public works" as set forth in the first section
of the chapter requires the conclusion that the prevailing wage law applies to
all workmen employed on public works exclusive of maintenance work whether or
not the public works have been let by contract.
The majority also rely on the rule of statutory construction that statutes
[*72] are to be interpreted by assuming that the Legislature was aware of
existing judicial decisions and that the failure to make changes in a statute in
a particular respect, although making changes in other respects, is indicative
of an intention to leave the law unchanged in that respect. This rule of
construction in a proper case is entitled to great weight, but in the
circumstances of this case it is entitled to little or no weight. The only
judicial construction of the statutes is a statement made without citation of
authority in Beckwith v. County of Stanislaus, 175 Cal.App.2d 40, 48 [345 P.2d
363], that the prevailing wage and competitive bidding statutes have no
application to work undertaken by force account or day labor. The prevailing
wage law was not directly involved in the case, and not only is there no
citation to any authority for the statement but, more importantly, the opinion
does not cite the prevailing wage statute or any section of the Labor Code. The
headnotes of the official report of the case and of the West Publishing Company
report (345 P.2d 363-364) make no mention whatsoever of the statement relied
upon by the majority. The rule of construction relied upon by the majority is
premised on the theory that the Legislature is aware of the judicial
construction of the statute, and in the circumstances there is little reason to
believe that the Legislature, when it was considering amending the statute in
other respects, became aware of the statement in Beckwith.
In any event, any weight which the rule of construction relied upon by the
majority might be entitled to in the present case is clearly counterbalanced
because the Attorney General in two opinions reached a contrary construction of
the prevailing wage law. In 1944 he expressly pointed out that construction of
improvements by day labor was controlled by section 1771 of the Labor Code. (3
Ops.Cal.Atty.Gen. 399, 401.) In 1960, he pointed out that improvements by county
employees, in accordance with the views expressed above, would not come under
subdivision (a) of section 1720 which related solely to contracted work but
would come under subdivision (c) of the section and that the prevailing wage law
was applicable to such improvements. (35 Ops.Cal.Atty.Gen. 1, 2.) Unlike the
opinion of the Court of Appeal relied upon by the majority, the opinions of the
Attorney General both cited and analyzed the relevant code sections, and, if any
weight is to be placed upon legislative inaction, it seems more reasonable to
assume that the Legislature in refusing to act was more likely aware of the
Attorney General's opinion than of the Court of Appeal opinion.
III
Finally, even if we assume that the prevailing wage law ( Lab. Code, § 1720 et
seq.), is applicable ordinarily only to contracts for improvements and is not
ordinarily applicable to work done by force account, it nevertheless appears
that plaintiff [**149] [***477] is entitled to recover in this action. Had
[*73] the city complied with its own charter, it would, under the undisputed
facts, have been required to let a substantial portion of the work by contract,
and the persons who performed that work, plaintiff's assignors, would have been
entitled to payment of, at least, the prevailing wage. The city should not be
permitted to profit from its own wrong in violating its charter, and the
workingmen who worked on the improvements should not, because of the city's
wrongful violation of its charter, be deprived of the compensation they are
entitled to under statute.
I would reverse the judgment.
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