I dissent.
The theory on which the writ should be denied may be briefly stated. The city has by delegation from the state plenary power to construct, maintain, and repair sewers. No limitations have been placed upon this power by the state. In the construction of this storm sewer the city acts in its capacity as an employer or proprietor and in such capacity may impose conditions as to the methods to be employed, the hours of labor, the character of the employees as to being citizens and residents, and the manner in which the work is to be done. In other words, the city may do with respect to these matters any and all things which the state itself might do. The questioned provisions in the contract are merely the employer's declarations to his employees of how, by what method, and in what manner, it desires its work to be done. The possession of the power to do the work being conceded a generous measure of its exercise will be permitted to the end that it may effectuate its purpose, and courts will not interfere except to see that the board has acted within the scope of its delegated power; that its discretion has not been abused; and that it was not actuated by fraud or bad faith. In its capacity as owner and proprietor the city is not hampered, where there are no statutory or constitutional restrictions, as to the manner or means to be employed in the construction of its public works. The conditions which an employer municipality may impose as to the manner of doing its work involves questions of policy which *Page 167 are within the discretion of the board of commissioners to decide. With respect to questions of policy the courts have nothing to do. The increased cost of the improvement is not of such magnitude as to imply fraud or bad faith. On this question the courts may inquire into the reasons and circumstances which actuated or explain the conduct of the board. When the reasons are considered, they show that the board is motivated by considerations of public welfare. In determining what use shall be made of its money and the manner of construction of its public works, the city authorities have the right to consult and consider the welfare of its citizens, even though the conditions imposed do not exclusively promote the efficiency of the work where they do tend to promote the well-being of the citizens and residents of the city and enhance public welfare. The cases and arguments which support this theory are referred to later in this opinion.
The city was not required to advertise for bids and do the work by contract let to the lowest responsible bidder, and was therefore not restricted as to the manner in which the work could be done. It is a generally accepted rule of law that, in the absence of some statutory requirement to that effect, a municipal corporation is not required to call for bids and enter into contracts for the making of public improvements. Utah Savings Trust Co. v. Salt Lake City, 44 Utah 150, 138 P. 1165; 3 McQuillin, Municipal Corps. p. 2634. Prior to 1919 by Comp. Laws Utah 1917, § 819, the city was required to do its work by contract and to let the contract to the lowest responsible bidder after publication of notice. Utah Savings Trust Co. v. SaltLake City, supra. This section, however, was amended by Laws Utah 1919, c. 14, p. 23, and by the amendment the requirement of letting of contracts was limited to work to be paid for out of the general fund.
The Legislature undoubtedly had the right to prescribe that all public work should be done by contract. But this it did not do. It was competent for the Legislature to limit the provisions of section 819 to work paid for out of general *Page 168 funds, and, where so limited, it does not lie with the courts to extend the application of such provision to work paid for out of other funds. Particularly is this true where the section before amendment was held by this court to apply to all construction work done by the city, and thereafter the Legislature saw fit to amend the section and restrict its application to a particular class of work only. The courts will give effect to the legislative intent thus clearly expressed. Dahl v. Salt LakeCity, 45 Utah 544, 147 P. 622. The cost of the storm sewers will be paid from a special fund created by the sale of bonds voted by the taxpaying citizens of Salt Lake City for this specific purpose.
The statutory definition of the term "general fund," Comp. Laws Utah 1917, § 5726, applicable to the state treasury, is as follows:
"The general fund consists of moneys received into the treasury and not specially appropriated to any other fund."
By the same token the general fund of a city is the fund which receives moneys from various sources and from which the municipal authorities may appropriate money for any corporate purpose, as distinguished from special funds which are dedicated by express statutory provision or by the board of commissioners, when duly authorized, to a specific municipal object and where such fund may not be diverted either directly or indirectly to any other purpose. 28 Cyc. 1563. This bond money will not go into the general fund of the city and cannot lawfully be diverted into such general fund. 6 McQuillin, Municipal Corp. (3rd Ed.) § 2462. The provisions of § 819, as amended, do not apply to the making of public improvements which are not paid for out of resources which are not and do not become a part of the general fund of the city. Barnes v. Lehi City, 74 Utah 321, 279 P. 878. The city could have proceeded without contract to do this work under the general direction of its own officers and employees. Under these circumstances it is not restricted by the same rules which would apply had the statute *Page 169 required that the work be let by means of competitive bidding to the contractor offering the lowest responsible bid.
There is no question here with respect to the power of the city to pass general ordinances which control the conduct of its citizens generally, but merely whether the city in its capacity as an employer may direct the manner in which the work shall be accomplished. It matters not that the city did not pass an ordinance incorporating the provisions to which objection is made as applicable to all city work. That would be one way by which the city as employer could communicate its desires to its employees, but it may also do so by way of writing the conditions into a contract.
The language of Chief Judge Willard Bartlett in his concurring opinion in People v. Crane, 214 N.Y. 154, 108 N.E. 427,434 L.R.A. 1916D, 550 Ann. Cas. 1915B, 1254, confirms this view, as follows:
"The statute is nothing more, in effect, than a resolve by an employer as to the character of his employees. An individual employer would communicate the resolve to his subordinates by written instructions or by word of mouth. The state, an incorporeal master, speaking through the Legislature, communicates the resolve to its agents by enacting a statute."
See, also, Ebbeson v. Board of Public Education inWilmington (Del.Ch.) 156 A. 286, 289, wherein a provision in proposal for bids called by the board of education contained the condition that subcontractors must be bona fide residents of Delaware for at least six months prior to the award was held valid. The court said:
"I shall proceed to answer this question upon the assumption that the situation is just as though the condition against nonresident subcontractors was one that some statute of the state required the Board as a public agency to impose, instead of being imposed by the Board's voluntary will."
What, then, are the powers of the city? Comp. Laws Utah 1917, § 570 x 37 delegates to the city the power to construct and keep in repair culverts, drains, sewers, catch-basins, *Page 170 manholes, and cesspools, and to regulate the construction and use thereof. This is a general grant of power without any limitation or direction as to how, when, or in what manner, or by what method, or under what conditions the city may do the work therein referred to. All such is left to the sound discretion of the board of commissioners. By section 570 x 87, commonly referred to as the General Welfare Clause, the board of commissioners is given power to make all regulations not repugnant to law necessary for the carrying into effect and discharging all duties and powers conferred by statute, and such as are necessary and proper to provide for the safety, preserve the health, promote the prosperity, and to improve the morals, peace, good order, comfort, and convenience of the city and its inhabitants. Section 570 x 2 provides for the appropriation of money and the handling of corporate property and is very broad in its definition of corporate purposes and delegation of power. By this section the board of commissioners is authorized:
"To appropriate money for corporate purposes only, and provide for payment of debts and expenses of the corporation; and to purchase, receive, hold, sell, lease, convey, and dispose of property, real and personal, for the benefit of the city, both within and without its corporate boundaries; to improve and protect such property, and to do all other things in relation thereto as natural persons; provided, that it shall be deemed a corporate purpose to appropriate money for any purpose which, in the judgment of the board of commissioners or city council, will provide for the safety; preserve the health, promote the prosperity, and improve the morals, peace, order, comfort, and convenience of the inhabitants of such city."
In the construction of this storm sewer the city is exercising the powers conferred upon it by statute as an employer or proprietor. The provisions in the proposed contract merely specify the employer's selection of its employees, and the method and manner in which the work is to be performed. No contractor is here complaining. In the contracts that have already been let the contractors have agreed to these provisions and have undertaken to abide by them, and, so far as the proposed contracts are concerned, there is no *Page 171 complaint from any of the bidders with respect thereto. They are willing to bid and take the work on the terms prescribed. The question is raised by a tax-paying citizen who urges that the method employed is wasteful and extravagant and in effect amounts to a charity. He contends that the city is not the public agency empowered by state law to raise and expend money for charitable purposes. There is no question but that in this state it is the board of county commissioners which may levy a tax and expend the proceeds thereof for the purpose of providing for the indigent poor. We cannot see, however, wherein the construction of the sewer in the manner indicated is in any sense a charity. Charity is defined by Webster's New International Dictionary as "whatever is bestowed gratuitously on the needy or suffering for their relief; alms." The provisions with regard to employment of hand labor, the rotating of labor, and giving preference to citizens and residents of the city, are in no sense charitable in their nature, but come within the general scope of the power of the city as an employer to control the manner and method by which its public work shall be accomplished. While the amount of money which it is claimed will be wasted seems rather large, yet by reference to the whole amount to be expended it is comparatively small.
It is claimed that the provision with regard to rotation of labor and the requirement that certain of the work be done by hand labor will impose an additional cost upon the taxpayer. It is stipulated that in the engineer's estimate of the work these particular provisions were taken into consideration, and because thereof the engineer's estimate was increased by approximately $55,000, $20,000, of which is allocated to rotation of work and $35,000 to the employment of hand labor. All the bids so far received were substantially less than the estimate of the engineer, and it was represented to us in the oral argument that by rotation of labor there would actually be no increase in cost of the work.
I think no one would question the right of the board of commissioners to determine how and in what manner the *Page 172 janitorial work should be done in the city and county building, and if the board determined that this work should be done by means of brooms and dusters instead of by vacuum cleaners, no one would question the right of the board to have its work done in that manner. That is a matter of policy particularly within the powers of the board. The problem here is practically the same, except that the amount of money involved is greater. In each case the legal question is merely whether the board of commissioners has power to prescribe the manner and method of doing corporate work in the absence of any restriction imposed upon it by statute. If it was within the discretion of the board to so prescribe, and its discretion has not been abused, or if its conduct is not tainted by fraud or bad faith, then this writ should be denied.
In determining whether municipal authorities have acted within their expressly granted powers, the courts follow a liberal rule, stated in R.C.L. as follows:
"Any fair and reasonable doubt concerning the existence of the power, or any ambiguity in the statute upon which the assertion of the power rests, is to be resolved against the corporation and the power denied. When, however, power over a particular subject matter has been delegated to a municipal corporation by the legislature without any express limitations, the extent to which that power shall be exercised rests in the discretion of the municipal authorities, and as long as it is exercised in good faith and for a municipal purpose, the courts have no ground upon which to interfere." 19 R.C.L. 768.
"Within the limits of their powers municipal corporations are favored by the courts; in such cases, rules of strict construction do not apply; nor do such rules apply when the power conferred in its exercise concerns only the corporation and can injure no one. The possession of the power being established, a generous measure of its exercise will be permitted to the end that it may effectuate its purpose." 43 C.J. 197.
"It seems to be well established by repeated adjudications that municipal corporations may exercise all powers within the fair intent and purpose of their creation which are reasonably proper to give effect to the powers expressly granted; and that in so doing they have the choice of the means adapted to the ends and are not confined to any one mode of operation." 43 C.J. 193. *Page 173
Mr. Dillon, in his work on Municipal Corporations, says:
"Power to do an act is often conferred upon municipal corporations, in general terms, without being accompanied by any prescribed mode of exercising it. In such cases the common council, or governing body, neessarily have, to a greater or less extent, a discretion as to the manner in which the power shall be used. This discretion, where it is conferred or exists, cannot be judicially interfered with or questioned except where the power is exceeded or fraud is imputed and shown, or there is a manifest invasion of private rights. Thus, where the law or charter confers upon the city council, or local legislature, power to determine upon the expediency or necessity of measures relating to the local government, their judgment upon matters thus committed to them, while acting within the scope of their authority, cannot be controlled by the courts. In such case the decision of the proper corporate body is, in the absence of fraud, final and conclusive, unless they transcend their powers." 1 Dillon Municipal Corporations 5th Ed. § 242.
The statutes of this state have expressly granted power to the board of commissioners to construct storm sewers, and, as we have seen, no limitations have been placed upon this power. It follows, therefore, that the extent to which that power is exercised rests in the discretion of the municipal authorities. The officers of a municipality in the doing of publc work or the letting of municipal contracts perform, not merely ministerial duties, but duties of a judicial and discretionary nature, and the courts in the absence of fraud or a palpable abuse of discretion by the officers have no power to control their action. 19 R.C.L. 1067, note 17 Ann. Cas. 650. In Atkin v. Kansas,191 U.S. 207, 24 S. Ct. 124, 127, 48 L. Ed. 148, after deciding that the state had power to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities, said with reference to review of such action by the courts:
"No court has authority to review its action in that respect. Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern."
While that is generally true with respect to the exercise of power by the Legislature within constitutional limitations, *Page 174 it does not mean that the power of the board of commissioners of a municipality is unlimited. The courts undoubtedly have the right to review such action to see that it is within the powers conferred, and that the board has not abused its discretion nor been actuated by bad faith or fraud.
"Courts cannot interfere with the discretion of municipal bodies in the expenditure of public funds unless it has been plainly abused and practically exceeded under pretence of keeping within their charter powers." Torrent v. Muskegon, 47 Mich. 115,10 N.W. 132, 41 Am. Rep. 715.
"While the necessity of a local improvement, its character and location, the method of construction, and material used are committed to the judgment of the city council, its judgment must be exercised in a reasonable manner in view of the circumstances and surrounding conditions." City of Chester v. Kennedy,344 Ill. 224, 176 N.E. 430, 435.
In Campbell v. New York City, 244 N.Y. 317, 155 N.E. 628,631, 50 A.L.R. 1473, the question involved the validity of proposed contracts which a taxpayer sought to restrain because of provisions within it prescribing rates of wages for an eight-hour day. The contracts were drafted pursuant to statutory requirements, but the conditions in the contracts were not confined strictly to the statutory provisions. It was claimed that the contracts were wasteful and illegal. The court said:
"Another form of contract might be more expedient or cheaper. The courts do not sit in judgment upon questions of legislative policy or administrative discretion. The taxpayer must point to illegality or fraud."
In Jahn v. City of Seattle, 120 Wash. 403, 207 P. 667,668, in upholding as valid a city ordinance prescribing the rate of wages for an eight-hour day and a requirement that the contractor or subcontractor shall give preference to citizens of the United States and heads of families, the court said:
"The courts no more will attempt to say what wages must be paid upon public work, what hours of employment shall prevail, or the class of people who shall perform that work, than they will attempt to interfere and prescribe the material to go into the work, the manner of construction, or other engineering details of a public improvement." *Page 175
This court has recognized the rule that, in the choice of materials (Murphy v. Salt Lake City, 65 Utah 295,236 P. 680), and the engineering plans to be followed (Ward v. SaltLake City, 46 Utah 616, 151 P. 905), in the construction of public works the courts will not interfere with the exercise of discretion by the municipal authorities, and has also held inBrummitt v. Ogden Waterworks Co., 33 Utah 289, 93 P. 828, that, where a city is acting within its authorized powers, a taxpayer may not arrest its acts merely because such acts will be unwise, improvident, or extravagant; nor may he do this in any manner that is purely legislative or discretionary.
No serious question is raised as to the provisions prescribing an eight-hour day, fixing minimum wages to be paid, or the requirement of preference to citizens of the United States who are residents of Salt Lake City. The cases cited below afford ample support for these provisions. The requirement that preference be given on public works to citizens of the United States or those who have declared their intention of becoming such is required by statute, Comp. Laws Utah 1917, § 4865.
While there is no case that we have found or that has been called to our attention which passes directly upon the question of the city's power to prescribe what work shall be done by hand labor and providing for a rotation of labor, yet the cases which have decided that the state or city has power to prescribe with respect to public work, that eight hours shall constitute a day's work (Atkin v. Kansas, supra; In re Broad, 36 Wash. 449,78 P. 1004, 1006, 70 L.R.A. 1011, 2 Ann. Cas. 212, and Milwaukee v. Raulf, 164 Wis. 172, 159 N.W. 819), fix a minimum wage to be paid (Gies v. Broad, 41 Wash. 448, 83 P. 1025; Malette v.Spokane, 77 Wash. 205, 137 P. 496, 51 L.R.A. (N.S.) 686, Ann. Cas. 1915D, 225) impose restrictions that citizens of a state or city shall be given preference (Jahn v. City of Seattle, supra; Cornelius v. Seattle, 123 Wash. 550, 213 P. 17; Heim v. McCall, 239 U.S. 175, 36 S. Ct. 78, 60 L. Ed. 206, Ann. Cas. 1917B, *Page 176 287; People v. Crane, 214 N.Y. 154, 108 N.E. 427, 429, L.R.A. 1916D, 550, Ann. Cas. 1915B, 1254), or persons who have resided in the state six months or more (Ebbeson v. Board of PublicEducation in Wilmington, supra), preference in favor of war veterans (State v. City of Seattle, 134 Wash. 360,235 P. 968), conditions of employment of teachers (Seattle High SchoolChapter No. 200 v. Sharples, 159 Wash. 424, 293 P. 994, 996, 72 A.L.R. 1215), that the work must be done in the city or state(Matter of Rooney, 26 Misc. 73, 56 N.Y.S. 483; Tribune P. B. Co. v. Barnes, 7 N.D. 591, 75 N.W. 904; In re Gemmill,20 Idaho 732, 119 P. 298, 41 L.R.A. (N.S.) 711, Ann. Cas. 1913A, 76), or where the manner or time of doing the work has imposed an additional cost (City of Philadelphia v. Evans, 139 Pa. 483,21 A. 200, 202; City of Chicago v. Hirschl, 275 Ill. 60,113 N.E. 899; Wagoner v. La Grande, 89 Or. 192, 173 P. 305, 307), are sufficiently analogous to furnish the reasons which sustain the exercise of power by the city to write all of the question conditions into the proposed contracts. In 44 C.J. p. 48, it is said:
"While the courts have condemned a contract provision requiring the contractor to employ union labor exclusively, they have upheld provisions requiring the contractor to employ only citizens of the city, to discharge employees who fail to perform their work in accordance with the specifications, to restrict the hours of labor to eight per day, and to pay a prescribed minimum wage."
In Gies v. Broad, supra, the court, in sustaining a prosecution for violation of a city ordinance prescribing a minimum wage for an eight-hour day on public work, stated its grounds of decision:
"For, surely, if it be within the power of the state to limit the number of hours a laborer may be permitted to labor in one calendar day on any public work undertaken by it, it can fix the minimum sum that shall be paid him as wages for such labor. The power to do either must rest on the principle that `it belongs to the state, as the guardian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities.'" *Page 177
In re Broad, supra, the Washington court sustained a city ordinance prescribing an eight-hour day on public work upon the following grounds:
"But the decision was based upon an entirely new theory of the law, namely, that it was a public work on which the contractor was engaged, and with reference to which he contracted; that the state, or the municipalities through delegated powers from the state, had a right to do their work in any manner in which they saw fit, and that they had the same right to compel those with whom they contracted to perform the public work in the same manner, and that there was no question of violation of private right involved."
In City of Philadelphia v. Evans, supra, in sustaining the city's action in requiring paving to be done in the winter time, the court said:
"We do not, of course, know what public exigency required that this pavement should be put down at such an unusual season for such work. It is easy to see that it would not only increase the expense, but possibly impair the quality of the paving. We do not find anything, however, to interfere with the discretion of the municipal authorities in this matter, and we cannot assume that it was done without cause.
In City of Chicago v. Hirschl, supra, the city laid two water mains where it was contended that one would do just as well, and that the laying of two only increased the cost. The court said this did not amount to an abuse of discretion and it would not interfere unless clearly satisfied that the action was oppressive and without reasonable grounds.
In the leading case of Atkin v. Kansas, supra, the Supreme Court of the United States sustained an eight-hour law applicable to work done by the state or any of its municipalities on the broad ground "that the work being of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done."
In People v. Crane, supra, the question was whether the state had the right to prescribe that only citizens of the *Page 178 United States shall be employed upon public work, and it was there held that such requirement violated no constitutional provision. In the course of the decision Judge Cardozo used the following language, which is appropriate to the question before us:
"Since government, in expending public moneys, is expending the moneys of its citizens, it may not, by arbitrary discriminations having no relations to the public welfare, foster the employment of one class of its citizens and discourage the employment of others. It is not fettered, of course, by any rule of absolute equality; the public welfare may at times be bound up with the welfare of a class; but public welfare, in a large sense, must, none the less, be the end in view. Every citizen has a like interest in the application of the public wealth to the common good, and the like right to demand that there be nothing of partiality, nothing of merely selfish favoritism, in the administration of the trust. But an alien has no such interest; and hence results a difference in the measure of his right. To disqualify citizens from employment on the public works is not only discrimination, but arbitrary discrimination. To disqualify aliens is discrimination indeed, but not arbitrary discrimination; for the principle of exclusion is the restriction of the resources of the state to the advancement and profit of the members of the state. Ungenerous and unwise such discrimination may be. It is not for that reason unlawful. * * *
"To defeat this law it must, therefore, be held that the Constitution gives to the state a narrower liberty of choice in the expenditure of its own moneys than in the use or distribution of its other resources. I can find no justification for the supposed distinction. The construction of public works involves the expenditure of public moneys. To better the condition of its own citizens, and, it may be, to prevent pauperism among them, the Legislature has declared that the moneys of the state shall go to the people of the state. * * *
"In saying this, I assume that the purpose of the statute is not to promote efficiency in the doing of the work, but to discriminate in the distribution of the public wealth in favor of the citizen. There may be forms of employment where efficiency would be promoted by the employment of citizens, and, if the statute were restricted to such employments, its validity would not be doubtful. * * * The statute has been frankly defended at our bar as a legitimate preference of citizens, not to promote the efficiency of the work, but to promote the welfare of the men preferred; and from that aspect it will be frankest and safest for us to view it. *Page 179
"To concede that such a preference was intended is not to condemn the statute as invalid. The state, in determining what use shall be made of its own moneys, may legitimately consult the welfare of its own citizens, rather than that of aliens. Whatever is a privilege, rather than a right, may be made dependent upon citizenship. In its war against poverty, the state is not required to dedicate its own resources to citizens and aliens alike. * * * In our own country the workmen's compensation laws that have been adopted in many states are phases of the same world-wide movement. We are not concerned at this time with the validity of these measures for the alleviation of the laborer's lot. We mention them as illustrations of an expanding consciousness in the modern state that relief against unemployment, both after the event and before it, is part of the state's function. * * * Preferences to avert a threatened pauperism, or to render pauperism impossible, stand on the same footing. In each instance the state announces as its public policy that the common property shall be used for the benefit of its common owners."
And Chief Judge Willard Bartlett, in his concurring opinion in the same case, uses the following language:
"These decisions establish the proposition that the state in the prosecution of a public work stands in just the same position as an individual; that it may prescribe the conditions on which it will contract for such work; and that it may make the violation of his contract on the part of the contractor a criminal offense. It is so held in Atkin v. Kansas,191 U.S. 207, 223, 24 S. Ct. 124, 128, 48 L. Ed. 148, where the Supreme Court of the United States said that: `No employee is entitled, of absolute right and as a part of his liberty, to perform labor for the state; and no contractor for public work can excuse a violation of his agreement with the state by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do.' * * *
"In Ellis v. United States, 206 U.S. 246, 256,27 S. Ct. 600, 601, 51 L. Ed. 1047, 11 Ann. Cas. 589, which involved the validity of a federal labor law, it was held that: `The government, purely as a contractor, in the absence of special laws, may stand like a private person, but, by making a contract it does not give up its power to make a law.' And in the exercise of this power it may declare a violation of his contract by the contractor to be a crime. In answer to a suggestion that the purpose of the statute was to secure to labor certain advantages in conditions over which Congress has not general control, Mr. Justice Holmes said that the existence of such a motive, would not render a law unconstitutional which was otherwise valid, and *Page 180 that the power which Congress has over the mode in which contracts with the United States shall be performed could not be limited by a speculation as to motives.
"However, subsequent legislation or adjudications may have modified the effect of the decision in People v. Orange CountyRoad Construction Co., 175 N.Y. 84, 90, 67 N.E. 129, 131, 65 L.R.A. 33, it still remains true, as was said by Judge Cullen in that case, that: `If the state itself prosecutes a work it may dictate every detail of the service required in its performance; prescribe the wages of workmen, their hours of labor, and the particular individuals who may be employed. * * * The state in this respect stands the same as its citizens.'"
Judge Seabury, also concurring, said:
"In its capacity of owner and proprietor, the state is not hampered by restrictions as to the manner in which it shall cause its public works to be constructed. There are many uses to which an owner or proprietor may put his property which do not violate the rights of others. The state in its capacity of proprietor or owner may make such use of its own public property as it deems conducive to the social well-being. In the use that it makes of such property it is not required to refrain from discrimination. The largest measure of benefit may sometimes result from discrimination. Whether or not discriminations made in regard to public property sustain a relation to the public welfare is for the Legislature, and not the courts, to determine. The modern state, through the ownership of its public property, affords opportunities for public co-operation. The motive which actuates it is service — not profit. Its service, to be effective, must be rendered where it is needed, and in rendering it it is not obliged, in the use of its public property, to secure immediate equality of benefits to all; it is sufficient if the ultimate result be to promote the general welfare. The public property or commonwealth should, of course, be used to promote the general welfare, but the restraints or checks to which government is by constitutional provisions subjected, when its acts in reference to private property, have no application where it acts in relation to public property. Within this sphere and in regard to this public property, government is free to prescribe such regulations as will best promote the general welfare."
Norris v. City of Lawton, 47 Okla. 213, 148 P. 123, 124, is to similar effect. The court sustained a statute regulating hours of labor and compensation to laborers employed by the state and its municipalities. It is was there held that: *Page 181
"No person has a vested right to work for the state or any of its municipalities upon public works; but this is rather a privilege granted by the state or municipality, and may be granted upon such terms and conditions as the state may see fit, not in conflict with the law. And this is true whether the work be done by the state or municipality directly, or be done through the medium of a contractor who holds a contract with the state."
I have quoted extensively from these cases for the reason that the principles therein announced are applicable here. True, these decisions relate to powers exercised by a state in prescribing conditions of employment on public works. A municipality, while exercising the powers delegated to it by statute, where there is no restriction with respect to the manner and means of doing the work, stands in the same position as does a state as an employer and may prescribe the conditions upon which public work will be done for such municipality.
In Milwaukee v. Raulf, 164 Wis. 172, 159 N.W. 819, 822, the defendant was prosecuted and convicted for violation of a city ordinance relating to hours of labor on municipal works. There was a state law which limited the hours of labor on public works contracted for by the state, but which did not reach and control the work done for municipal corporations. The court said:
"It being established that the state has the power to limit the hours of labor on public works including public works for its municipalities, has the city of Milwaukee such power?
"The power to prescribe the conditions upon which public work shall be carried on is undoubtedly primarily in the state. When the state speaks its voice is law. The city is simply an agency of the state, and as such has only such powers as are conferred upon it expressly or by implication. The state of Wisconsin has not attempted to prescribe the conditions under which public work shall be carried on within the cities of this state. Cities are charged with the power and duty of determining the necessity for public works, their extent and character and subject to the constitutional limitation as to indebtedness and certain prescribed rules of procedure, the whole subject of providing for public works within a city is committed to the common council of the city. The whole matter of providing public works being *Page 182 delegated to the city, the city has, as an incident to its power to contract for the erection and constrution of public works, the same inherent power to prescribe the conditions under which the work shall be carried on within the city, in the absence of any restriction by the state, that the state has, and it may exercise this inherent power unless and until it is restricted by legislative enactment. * * *
"Without expressing any opinion, impliedly or otherwise, that such is the fact, if legislation of the character now before us is mischievous in its tendencies and results in increased tax burdens, the remedy rests with the people themselves. The remedy is legislative and political and is not to be found in the judicial field. The field of legislative discretion is broad, and as long as legislative bodies stay within its limits their enactments are the law of the land. We conclude, therefore, that the ordinance in question is valid, and that the defendant was properly convicted and sentenced."
To similar effect is Malette v. Spokane, 77 Wash. 205,137 P. 496, 502, 51 L.R.A. (N.S.) 686, Ann. Cas. 1915D, 225, wherein a municipal ordinance was declared valid which fixed a minimum wage per day for eight hours labor on public contracts, even though such wage as fixed was 25 per cent higher than the prevailing price for labor. The court in its opinion declared that the ordinance was sustained upon the principle that, when the state or any of its municipalities performs public work, it then, as an employer, has the right to fix the terms upon which it will permit labor to be done for it, and used the following language:
"It is thus plain that there is ample authority to be found, both in state and federal decisions, to sustain the power of the legislative body, either of the state or of the city, to prescribe a reasonable minimum of wages even above the going rate for common labor performed on public work, and even when the work is to be paid for by special assessments against the property benefited thereby, and the courts have no power to pass upon the wisdom of the measure. * * *
"While cogent reasons might be advanced for sustaining legislation of this character as a proper exercise of the police power of the state delegated by our Constitution to cities of the state, we find it unnecessary to place the decision on that ground or to discuss that question, since the state courts to which we have referred and the Supreme Court of the United States have sustained legislation, which cannot be distinguished either in principle or in effect from the ordinance *Page 183 here in question, upon the simple ground that `it belongs to the state as the guardian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities.' Atkin v. Kansas, 191 U.S. 207,48 L. Ed. 148, 24 S. Ct. 124; Gies v. Broad, 41 Wash. 448, 83 P. 1026. * * * Hence, assuming no increased efficiency by reason of fewer hours of work, the law would either increase the number of men simultaneously employed at the same rate of pay as for ten-hour days, or would increase the number of days of employment for the same number at the same rate. It follows that it tends to increase the cost of work in exact proportion to the fewer hours in the working day. The eight-hour law manifests a public policy on the part of the state to better the condition of laborers employed upon public work. The purpose of the minimum wage ordinance is precisely the same, and the policy which sustains the one warrants the other. We fail to find wherein the ordinance in question is contrary to any public policy of the state, either as declared or implied in any statutory enactment. * * * But the discussion of this phase of the question would seem to be largely academic, since, even if the work be considered purely a matter of private concern to the city, it, like any other person, can prescribe the terms upon which it will contract. * * * Obviously, if it is left to the discretion of the council to determine what elements of cost shall enter into the work, and whether the work shall be done by contract at all, or whether by the city itself and the cost assessed to the property benefited, and, if done by contract, there is no requirement that it be let to the lowest bidder, then the rule stated by Hamilton would have no application. So long as the council acted in good faith, a general law or a general ordinance not unreasonably increasing the cost of the work would not invalidate the assessment. * * * It would seem that the discretion of the city, in so far as not controlled by its charter, and, so long as it is exercised in good faith, and not in such manner as unreasonably to increase the cost of the work, will not be interfered with."
Seattle High School Chapter No. 200, etc. v. Sharples, supra, was concerned with the power of the directors of a school district to place restrictions in the contracts of employment of teachers against being members of a certain association. The court held that the board had the complete power to impose conditions and prescribe qualifications of teachers employed, because, while the school district acting through its directors can only exercise powers granted or expressly *Page 184 or necessarily implied or essential to the declared objects of a municipal corporation, yet, where the power was expressly granted by statute to employ and discharge, it rested within the discretion of the directors to say whom it would employ and to impose conditions of employment. The decision was based upon the principles announced in Jahn v. Seattle, supra, Malette v.Spokane, supra, and Atkin v. Kansas, supra, to the effect that the right rests upon the simple ground that "it belongs to the state as the guardian and trustee for its people and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or one behalf of its municipalities." Because objection was urged that such requirements to be effective must be imposed by statute, the court said:
"But the argument is made that if any such right as that involved in the resolution is exercised, it must be by the Legislature and not by the school board. But we have noticed that express power has been given to the board to employ teachers, and we find nothing in the Constitution or statutes limiting that right so far as this case is concerned, from which it follows, we think, that the board has full and complete power in that respect."
"A municipal ordinance prohibiting more than eight hours per day on any work done for the municipality is likewise valid because the municipality has the right to do its work in any manner that it pleases and to compel those with whom it contracts to perform the work in such manner." 16 R.C.L. 495.
If the board might pass an ordinance prescribing the manner of doing its work, it may certainly do so by means of contractual provisions as any individual might do.
"Municipal ordinances or regulations of a contractual character are subject to judicial investigation in the same manner and for the same purpose as the contracts of private corporations." 43 C.J. 297.
In Dovel Co. v. Village of Lynbrook, 213 A.D. 570,210 N.Y.S. 183, 184, it was said:
"In the absence of some statutory requirement or evidence of bad faith, it [board of trustees] was entitled to use its judgment in *Page 185 awarding this contract to the same extent that an individual would be."
The Supreme Court of Oregon in sustaining a levy of a special assessment for public improvement in the case of Wagoner v.City of La Grande, supra, said:
"It is contended that the price to be paid for the work was excessive. As to this contention it is enough to say that the price is not so grossly excessive as to imply fraud, and in the absence of such a situation the price was within the discretion of the council."
The estimated additional cost in the instant case is a comparatively small percentage of the total amount to be expended for the construction of the sewer, and, as I view the situation, is not so excessive as to either imply fraud or indicate that the board of commissioners had abused its discretion. Nor was its conduct so arbirtrary and capricious as to require the court to halt the execution of these contracts by the board of commissioners and deny it the power to construct the storm sewer by the methods proposed. In almost every piece of work undertaken by the city or contract let by it, some taxpayer might be able to demonstrate that, if different means were employed or other materials used than those designated by the board of commissioners, the work might be more cheaply done or the improvement better serve the purpose for which it is constructed. All such questions are questions of policy which are for the city authorities to decide, and, unless they exceed their powers or abuse their discretion, the courts will not substitute its judgment for theirs. This would be true, even if we did not know the reasons which actuated the board in making the proposed contracts. With that information before us we can say that, not only were the motives of the board of commissioners not bad, but were wholly good, and its action was taken for the avowed purpose of ministering to the general welfare of the community, and for this the board is to be commended and not condemned. That such reasons are appropriate to be considered by this court for the purpose *Page 186 of determining whether the exercise of discretion by the city board has been abused or whether it has been actuated by fraud or bad faith is supported by authority. In 16 R.C.L. 499 it is said: "A court which has upheld the validity of minimum wage laws as to work done in behalf of a city, has pointed out that cogent reasons can be advanced for sustaining legislation of this character as a proper exercise of police power." Citing Malette v. Spokane, supra. In support of this view I refer to language of the judges in People v. Crane, supra, from which I have quoted extensively above.
In the case of Atkin v. Kansas, supra, the Supreme Court of the United States settled the question as to the power of the state to prescribe hours of labor to be performed by employees on public work, and this was decided on the ground that the state as the guardian and trustee of its people and having control of its affairs may prescribe the conditions upon which it will permit public work to be done upon its behalf or on behalf of its municipalities, and said that no court has authority to review its action in this respect, since regulations on this subject suggest only considerations of public policy. While the decision was based upon that ground there is language used by the court which indicated that it might also be based upon the ground of promotion of the general welfare of the workmen and as tending to produce a better citizenship. The cases to which we have referred are analogous in principle and sustain the view that the municipality as an employer may prescribe the conditions upon which the work will be done, and that the courts will not interfere with the exercise of discretion in this respect except for a flagrant abuse of discretion or where the action of the governing authorities is tainted by fraud or bad faith. The suggestion in the cases that the city authorities may consider the general welfare in the making of its contracts is pertinent to the situation before us and I think we may consider the emergency which has called forth the writing of these provisions, which are questioned, *Page 187 into the contract for the storm sewers. We have been advised by counsel and may also take judicial knowledge of the facts that thousands of men are now out of work, and that there is impending a crisis such as seldom arises in the history of a people. These conditions are world-wide and are of most serious import. They are so acute and unemployment is so widespread that public officials are required to take notice of the fact that, unless employment is afforded to workmen, and particularly those who have families dependent upon them, the seeds of revolution may be sown. The condition is so serious that we may take judicial notice that our entire industrial and economic structure is being undermined and even the foundations of government are none too secure. That such matters may be judicially noticed is unquestioned.
"The courts will take judicial notice of general economic and commercial history between certain dates, the increase of the cost of living, and the prevalence in a particular year or years of a severe financial panic and industrial depression throughout the country, or a large section thereof." 23 C.J. 117.
While the storm sewers which the city contemplates building are, and have been for many years, a necessity and will serve a useful and convenient purpose, nevertheless the board of commissioners determined to cause such public improvements to be constructed during this winter for the express purpose of relieving the unprecedented condition of unemployment now prevailing. It thereupon submitted its proposal to the people who voted the bonds for the purpose of constructing such storm sewers. The citizens were well advised, not by the specific terms of the proposal submitted to them for vote, but by declarations publicly made by the mayor and the board of commissioners and other public spirited citizens who were interested in providing employment for unemployed workmen in this locality, that, if the bonds were issued, the work would be speedily undertaken and diligently prosecuted, and that conditions would be written into the contracts providing for the use of the maximum *Page 188 number of laborers that could be well used on the enterprise. I do not pretend to say that the requirement of hand labor instead of machinery in the excavation and back filling for the sewers is ordinarily an economical or sound policy. That is for the board of commissioners to say in the light of the conditions now existing. Society must solve the problems which arise from the use of modern machinery and efficient methods of production, not by discarding such instrumentalities, but by making use of them for the benefit of all. In view of the present emergency, the requirements for rotation of labor and that certain work be done by manual labor were prescribed in the exercise of a sound discretion. In view of this situation, we cannot say that the board abused its discretion, or that its action was arbitrary or capricious in any respect whatsoever. There is nothing in the record which points to bad faith or fraud. On the other hand, the action of the city authorities was well considered and under the circumstances wisely conceived. In such times as these, municipal authorities may well be subject to criticism and condemnation if they fail to move in the direction of doing all that lies in their power to meet the crisis of unemployment and as best they can alleviate the suffering of the people, not by charity or doles which is beyond their power, but by means of providing work on public improvements. The people do not want charity but do desire to support themselves and their families by honest labor. It would be an indictment of our civilization if public officers under such circumstances have no means of meeting the situation and particularly where, as here, the city authorities have proceeded only within the powers granted them by the Legislature and are not violating any law enacted to place a limit upon their powers.
The writ should be denied.