Bohn v. Salt Lake City

In determining whether the writ should or should not be granted, it is important to keep in mind and not minimize the matter in hand. The board of city commissioners submitted to the qualified taxpayers and voters of the city, at an election called for such purpose, the proposition of issuing and negotiating $600,000 of bonds with the proceeds of which to construct a storm sewer and drainage system. In doing so, the commission acted within its undoubted power and jurisdiction. Such proposition was submitted as similar propositions are and as heretofore have been submitted for the exclusive purpose of the contemplated improvements. It is not claimed that the proposition otherwise was submitted to the voters. But it is alleged and asserted that some persons interested in maintaining the affirmative of the proposition, by public speech, talks over radios, and articles published in newspapers, urged that the bonds be voted for to now construct the contemplated improvements so that the city, because of the financial and industrial depression, might give employment to a large number of men out of employment and who are unable to maintain themselves or those dependent upon them; and that it was requested by a *Page 133 committee appointed by the President of the United States and by local committees that states and municipalities provide work for the unemployed by the construction of public works and improvements, all of which by briefs and arguments are pressed upon us with much zeal and earnestness. However, in determining the purpose for which the proposition was submitted to the voters, we are not justified in taking cognizance of or considering such campaigning whether in favor of or against the proposition. While we judicially may notice the existence of the depression and because thereof a large number of persons are out of employment, yet, in considering the purpose for which the proposition was submitted to the voters to bond the city, we must be guided by that purpose for which the board of commissioners by its call submitted it, which was to construct the contemplated works exclusively for a corporate and municipal purpose and for the use and benefit of the city and of its inhabitants to be derived from the construction and use of the improvements.

Further, it is not alleged nor made to appear that in any of the speechmaking or campaigning in favor of the proposition it was urged or claimed that the construction of the works was to be on a basis other than on a reasonable or at an economical and practical cost, nor is it claimed that the committee appointed by the President of the United States or any other committee or that any one urged or contended that public improvements or public work should be made or done on any basis other than an economical and practical cost. Though it be argued and assumed that, because of the depression and of the conditions of unemployment, voters voting for the bonds did so to construct the contemplated works now so as to give employment to those out of employment, yet it may not be assumed or implied they did so upon any understanding or consent that the construction of the works was to be on a basis other than on a practical and economical one, and certainly not on any basis of waste, or of a diversion of the funds, or by the application *Page 134 of any part of them to some collateral purpose or to anything not directly incident to the construction of the works themselves. Mindful must we also be of local and state-wide public demand that public expenditures be reduced as far as practicable and not increased by additional revenues unless actually necessary, and that all public expenditures be made in the most practical and economical manner.

It may readily be conceded that the commission had a sound discretion in estimating or approving estimates of the cost of the proposed and contemplated works, as to the kind and quality of material to be used, the manner in which the works were to be constructed and the character and workmanship thereof, the making and specifying of plans and specifications, accepting or rejecting bids for the proposed works and in respect of other particulars relating thereto; and that the exercise of such a discretion may not judicially be interfered with except upon allegations and proof of fraud or bad faith, arbitrariness, caprice, or abuse. Of course, where there is no power or authority to do a particular matter or thing complained of, or as to the manner in which it is done or threatened to be done, or admittedly is done not at a reasonable or practical cost but at an unnecessary and substantially increased cost to promote some object or purpose it has no authority to do, no discretion or good faith is involved. The city undertook to construct the sewer not by letting one contract for the whole project, but by letting separate contracts for separate and complete portions thereof. Four of such contracts on proposals for bids had been let from $8,000 to $79,000 each when application was made for this writ, which contracts it is alleged the city, unless restrained, will carry out and will let the same kind of contracts to do the remaining portions of the project.

In submitting proposals for bids for the construction of portions of the works already let, and in contracts entered into and to be entered into, provisions were and will be inserted that all "excavating, loading and back-filling shall *Page 135 be done with hand labor, except that teams or tractors may be used for plowing and loosening the material to be removed"; that "in the employment of workmen, common labor and all other labor to the extent practical shall be rotated once each week"; that an agency for the unemployed was to be appointed by and to be under the sole direction of the board of city commissioners, and, if workmen unemployed and available for work through such agency, "the contractor shall not employ any workman more than two weeks in any one month, nor retain or employ any workman in any one month who has had two weeks' work from any source during said month, and that he will establish and pay the minimum wage of $3.50 per day for an eight-hour day, and that, except as otherwise hereinafter provided — (if the contractor is unable to meet his requirements for skilled labor from the agency he shall have the right to employ such necessary skilled labor from among others of Salt Lake City who are bona fide residents) — all labor is to be employed by him from such agency as the Board of Commissioners shall designate"; and that in employing workmen "preference is to be given to bona fide residents and heads of families" in Salt Lake City. In pursuance of such provision it is alleged that the city designated and required the contractor to employ all workmen, not only through the agency, but also from those who have been bona fide residents of the city for more than one year last past.

Then it is alleged that the city, in making estimates of the cost of the construction of the works upon which proposed bids were to be submitted, based such estimates on the condition that all excavating, loading, and back filling were to be done by hand labor as well as all other work so far as practicable, which was estimated by it to cost $35,000 more money than it would cost if such requirements were not exacted, and by considering other provisions complained of, including the rotation of workmen which was alleged and by the demurrer admitted to be an additional cost of $20,000 in *Page 136 the construction of the works; and in oral argument it was admitted by counsel for the city that the provision as to the rotation of workmen stood on the same basis as the provision relating to hand labor. However, and as is readily apparent, the chief and alleged objectionable features of the provisions complained of — and all of them by the petition for the writ are inserted and complained of — are because they were imposed in the proposals for and in soliciting bids in view of them, and by contracts let and to be let all are required to be carried out. That all the provisions, including the rotation of workmen, were contained in proposals for and upon which bids were solicited and contracts let and to be let in view of them, is alleged and admitted. That, too, indisputably is shown by a copy of the proposals submitted and a copy of contracts let and to be let. Hence, it in effect is alleged that by imposing such provisions and conditions in proposals for and soliciting bids, and in contracts let and to be let, especially because of the provisions relating to hand labor, the rotation of workmen and requiring the employment of all workmen through the agency, the construction of the project will cost $55,000 more money than it would cost if such provisions were not imposed and required to be carried out. And it specifically is alleged and admitted "that the insertion in said contracts and proposed contracts of each and all of the hereinbefore described provisions has materially increased the cost to be paid and which will be required to be paid for the completion of said project and that had said provisions, or any of them, been eliminated from the said contracts and proposed contracts, bids substantially less in amount would have been received for the doing of said work and will be received for the doing of said work for which said contracts have not as yet been let," and "that approximately 90,000 eight hour day shifts for common labor will be required to be consumed in performing the said entire project pursuant to the terms, conditions and provisions contemplated by the said defendants, whereas by the method of using tools, machinery and equipment and *Page 137 eliminating the said provisions of the contract as hereinbefore set forth not more than one-third of the said number of eight hour day shifts will be consumed," which, at $3.50 for an eight-hour shift, the minimum wage required, will cost more than $55,000 to complete the project, than if such provisions had not been imposed and required to be carried out.

It thus is urged by the petitioner for the writ that the board of commissioners, by imposing and requiring the performance of such provisions, exceeded its authority, breached its trust, failed to perform its duties imposed by law, committed and threatens to commit waste, diverted and threatens to divert funds and proceeds derived from the sale of the bonds to a purpose collateral and not incident to the real purpose for which the bonds were voted and negotiated, and rendered the contracts invalid. While at the oral argument of the cause it was freely admitted by counsel in opposition to the writ that under normal conditions the commission could not lawfully impose such provisions, yet it is urged that, because of the existing emergency due to the financial and industrial depression and of the unemployment of a large number of men, the city under its police power was authorized and justified in imposing such provisions. However, it, under Comp. Laws Utah 1917, § 819, as amended by Laws Utah 1919, c. 14, is also urged that the city was not required to submit bids or to let contracts to do the proposed work, inasmuch as the improvement was not "to be paid for out of the general funds of said city," but was to be paid for out of a special fund derived from the sale of the bonds and which under no circumstances could lawfully be paid or turned into the general fund of the city. Hence it is contended that the city without submitting proposals for bids and without letting contracts could directly have made the improvements itself by purchasing all material and employing all labor on such terms and conditions as it saw fit and to the same extent that an individual or private corporation *Page 138 might do in building or constructing similar emprovements or structures.

We need not now inquire into that for the reason the city did not pursue such a course, but on the contrary submitted proposals for bids, accepted the lowest responsible bid in view of the alleged objectionable provisions, and entered into contracts for the construction of portions of the work, and admits that, unless restrained, it will enter into additional contracts on the same terms and conditions. It is enough to determine whether the city could lawfully do what it undertook and threatens to do without also deciding what it might otherwise lawfully do but which it has not undertaken nor threatened to do.

Still, it may not be inappropriate to observe that, in view of prior decisions of this court, it is not at all clear that the city lawfully could enter upon the construction of such a contemplated public improvement as here, amounting to $600,000, without making estimates of the cost thereof and submitting proposals for bids and letting contracts for the construction of it. Bonneville Irrigation District v. Ririe, 57 Utah, 306,195 P. 204, 205. It there was stated that:

"It may be said to be the general policy of the law of this state that no contract shall be awarded by any municipality or public corporation for any public improvements except to the lowest responsible bidder after publication. Comp. Laws Utah 1917, § 819, as amended by chapter 14, Laws Utah 1919; UtahSavings Tr. Co. v. Salt Lake City et al., 44 Utah 150,138 P. 1165."

It is claimed such statement was not necessary to the decision, and therefore is of no binding effect. The statement as to the declared policy of the state was germane and relevant. Considering the general scope and purpose of our laws on the subject, it may not well be disputed that such is the general policy of the state. Nor may it successfully be contended that such is not a wise or wholesome policy. As is seen, the court cited section 819 as amended by Laws Utah 1919, c. 14, as supporting such declared policy. The *Page 139 effect of what is now claimed is that the citation does not support the proposition for which it was cited. This court thought it did and for that purpose cited it.

In such respect it further is urged that the Bonneville Case was overruled by the later case of Barnes v. Lehi City etal., 75 Utah 321, 279 P. 878. It is not claimed it was expressly or directly overruled or that any reference was even made to it. What is claimed is that the two decisions are in conflict, and hence, by implication the former is overruled by the latter. But that does not follow. In the Barnes Case, the city, owning and operating a municipal electric light and power plant to furnish and supply its inhabitants with electric light and electric heating entered into a contract with Fairbanks, Morse Co. to purchase a new 180 horse power "Diesel engine generating unit" at the purchase price of $42,000 to be paid for in installments "out of proceeds derived from the improvements" and not out of the general fund of the city nor out of funds or revenues derived from taxation. The purchasing of the engine generating unit was a mere equipment similar to purchasing motor engines and equipment for departments of a city and was to be paid for out of proceeds derived from operating the business. For such reasons and upon such facts it was held the city was not, under section 819, as amended by Laws Utah 1919, c. 14, required to advertise for bids before entering into a contract for such a purchase. And then for aught made to appear the Diesal engine required was purchasable only from the manufacturer or his dealers. As readily is perceived, the facts of the two cases are dissimilar. It is familiar doctrine that every opinion or decision is dependent upon the facts upon which it is founded and must be considered in view of them and may not without reference to them be indiscriminately applied to cases of dissimilar facts. That also is true as to the case in hand. The facts in the Barnes Case and in this case are markedly dissimilar. Hence it does not follow, because this court in the Barnes Case held that the contract under the facts there disclosed could lawfully *Page 140 be entered into without advertising and submitting proposals for bids, that the city in constructing a public improvement amounting to $600,000 could lawfully enter into contracts without advertising or submitting proposals for bids, or that it lawfully could construct the works without letting contracts. The case here is not one of purchasing mere equipment, but involves the construction of a municipal public improvement with proceeds from a bond issue of $600,000 voted for such purpose and to be paid for interest and principal by assessments and levy of taxes on all taxable property of the city, from which no one having such taxable property may escape.

The expressed policy in the Bonneville Case is but in harmony with the general doctrine that proposals for bids for certain municipal contracts to be let to the lowest responsible bidder are for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, and fraud in awarding contracts, and for the benefit of taxpayers to secure the best work and supplies at the lowest price practicable. 3 McQuillin Municipal Corporations, (2d Ed.) § 1286. For such purpose may it be assumed the city here submitted proposals for bids and let contracts to the lowest responsible bidder and thus pursued the policy declared in the Bonneville Case. It did not do nor it is alleged or claimed that it intends to do otherwise. Since the city chose to pursue such course, as it had the right to do, and if, in soliciting bids and in entering into contracts, it imposed conditions which hindered or prevented obtaining the lowest practical bid from responsible bidders, it thereby frustrated the very purpose and object sought by it in soliciting bids and pursuing the course pursued by it and which it now asserts, unless restrained, will be pursued by it. It is that which by this proceeding is sought to be prevented.

It, however, is chiefly urged that the city was authorized and justified in imposing and requiring performance of the provisions complained of on the theory of police power. To *Page 141 support that, the city points to Comp. Laws Utah 1917, § 570 x 2, which in substance provides that, among the powers conferred upon the board of commissioners, it is given power "to appropriate money for corporate purposes only"; to provide for payment of debts and expenses of the corporation; to purchase, sell, lease, and convey real and personal property for the benefit of the city; 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." Confessedly, the money derived from the sale of the bonds for the particular purpose for which the bonds were issued and negotiated constitute a special fund which cannot be transferred or applied to the general fund of the city, or for the payment of general debts or expenses of the municipal corporation or for any purpose or object for which the fund was not directly created. Such, too, is the law. 6 McQuillin Municipal Corporations, (2d Ed.) § 2462. I do not understand any one contends that the city, in the legitimate exercise of the police power, may directly or indirectly devote, transfer, or apply moneys or proceeds of a special fund to any matter or thing other than or different from the particular purpose for which the special fund was created. Hence, one of the questions which divides us is, Has the city done or does it threaten to do that; that is, does the effect of what it has done or threatens to do, by imposing the provisions complained of and requiring them to be carried out, constitute directly or indirectly a diversion of a substantial portion of the special fund from the particular purpose for which it was created and intrusted to the board of city commissioners, or constitute an application thereof to some purpose other than that for which the fund was created, or an expenditure of the fund not in a reasonable, *Page 142 practical, and economical manner, or, still worse, to a waste of a substantial portion of it?

In this connection there is another well-recognized principal of law that taxes may not be levied in favor of enterprises or objects which are essentially private; that mere incidental benefits to the public or to the state or to any of its municipalities does not constitute a public purpose in a legal sense; and that private enterprises and objects cannot be aided by taxation without unsettling fundamental rights in private property. I Dillon Municipal Corporations (5th Ed.) § 319. All that is well illustrated by the case of Lowell et al. v. Cityof Boston, 111 Mass. 454, 15 Am. Rep. 39. There, by an express act of the Legislature, the city of Boston was authorized to issue bonds and loan the proceeds on mortgages to owners of land the buildings on which were burned or destroyed by the great fire of 1872. The act was held unconstitutional and the city restrained from issuing the bonds. It there, as here, was claimed that an emergency existed, and that it was within the power of the Legislature to authorize the city, in aid of those in distress and rendered homeless, to re-establish warehouses, shops, manufactories, and stores, and by means of such facilities to enlarge or revive trade and business, which, it was claimed, would result in public good and general welfare. The court answered the contention by saying that such were considerations of mere private interests, and, though expressly declared to be the aim and purpose of the act, yet would not constitute a public object or benefit in a legal sense. Further, said the court:

"The promotion of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object. However certain and great the resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental. The incidental advantage to the public, or to the State, which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, *Page 143 or for which taxation may become necessary. It is the essential character of the direct object of the expenditure which must determine its validity, as justifying a tax, and not the magnitude of the interests to be affected, nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. The principle of this distinction is fundamental. It underlies all government that is based upon reason rather than upon force."

The principle is also well discussed and upheld by Mr. Justice Brewer in the case of State v. Township of Osawkee,14 Kan. 418, 19 Am. Rep. 99. The Lowell Case, in the case of Citizens'Savings Loan Association v. Topeka City, 20 Wall. 655,22 L. Ed. 455, where the same principal of law was involved, is cited and approved; and Rose's Notes on U.S. Reports, Rev. Ed. Supp. vol. 1, page 1242, and Rev. Ed. Complete Citations, vol. 8, page 572, show numerous cases where the Topeka City Case was approved and followed to the effect that the "taxing power must be exercised only for public purpose and not to aid private enterprise which may benefit the public collaterally." Such principles are here applicable, not in the sense that the bonds are in themselves invalid, for they were duly authorized to construct the municipal improvement, and, as has been seen, were issued and negotiated stripped of the objectionable features complained of, but in the sense that the city, by imposing and requiring the performance of the complained of provisions in contracts let and to be let for the construction of the improvements, applied and will apply a substantial portion of the proceeds of the bonds to an object and a purpose which is not the essential character of the direct object of the expenditure, but, in a claimed advancement of public welfare, to a purpose admittedly to promote private interests of individuals out of employment, and by such provisions requiring the employment of a larger number of men than is necessary to construct the improvements, which essentially constitutes an application of a substantial portion of such proceeds to a private and not to a public object, and hence equally objectionable *Page 144 as though the submission and issue of the bonds had been directly based on such object and purpose.

Let it be conceded that it is within the power of the state in virtue of the police power by legislative enactments to provide and care for the dependent poor and the indigent, and for that purpose to provide funds by taxation or by appropriations. Let it also be conceded that the state may authorize and empower counties or other municipal governments to do so. Such power by this state is conferred on counties. Comp. Laws Utah 1917, § 1400 x 40. The power is broad and comprehensive. Not only is such power conferred, but also a duty is imposed upon the county to care for, maintain, and give relief to the sick, the dependent, poor, and the indigent, to provide hospitals, poorhouses, and such other institutions as may be necessary for such purpose, and to levy all necessary taxes therefor. No such power is conferred or duty imposed on cities or towns of the state. In jurisdictions where such a power is or has been permitted to be exercised by cities and towns, it will be found such power was expressly conferred upon them. It is not claimed that such a power is expressly conferred upon cities or towns of this state. It is urged by some counsel in the cause that the city could do so by reason of the general welfare clause of section 570 x 2, supra. The city itself makes no such contention or that it is authorized by taxation to create a fund for such purpose. Though it be assumed, which is not even contended for by the city, that, because of such general welfare clause, the city would be authorized or justified in its discretion to make appropriations out of its general fund for such purpose, yet no one should so far be carried away by emotions or sentiment as to urge that the city would be authorized or justified in making such appropriations directly or indirectly out of a special fund not created for such a purpose.

The point more particularly stressed and emphasized by the city is that in letting contracts for the construction of public improvements a large discretion is given the board *Page 145 of commissioners as to the terms and conditions under which contracts are to be let; that though the city was required to submit bids, as was done, it, nevertheless, was not required to do as it did do, accept the bid of the lowest responsible bidder; that the lowest bid, though by a responsible bidder, is not always the best bid; and that the quality and grade of the material and the workmanship of the improvement is not to be measured by the cheapness at which the improvement may be constructed, etc. Let all that, at least most of it, be conceded. But it here is beside the question, for, it in substance is alleged and openly and frankly admitted by the city that the complained of provisions were embodied and will be embodied in proposals for bids and in contracts let and to be let, for the purpose of giving employment to a greater number of workmen than otherwise would be required without embodying such provisions, and that by so doing the project will cost $55,000 more money than it would cost if such provisions were not imposed. No claim is made that by imposing such or any of the provisions better or more competent workmen or labor, in the judgment of the board, may be had, or that the work may better be done or that better results or greater efficiency accomplished. All in such respect claimed is that with the provisions imposed the same grade and quality of work may be had and the same results as to efficiency accomplished as could be done without such provisions, but at an increased cost of $55,000 of the taxpayers' moneys.

The city by its brief seemingly justifies such increased cost by a stated analogy that if the city, when a storm occurs, undertook to remove the snow and clear the streets by workmen with "broom and shovel" instead of the use of snowplows, tractors, machine street sweepers, or other appliances and equipment, and though such method be pursued to give employment to a larger number of men than was required to do the work, and though it materially increased the cost of doing it, yet no complaint could legally be lodged against such manner of clearing the streets, because, as is *Page 146 claimed, the manner of doing it was within the discretion of the commission. Why not carry the analogy one step further by the city also requiring the snow to be carried away in wheelbarrows and dumped at some accessible place on the outskirts of the city and thereby give employment to a still larger number of men and at a still further increased cost of doing the work? Should it be said the suggestion would be an unreasonable manner of doing the work and render the doing of it uneconomical, or in a wasteful manner, then may the same thing be said as to the asserted analogy, and so may the same thing be said, only perhaps in a lesser degree, to the prosecution of the work in question under the complained of objectionable provisions embodied in the proposals for bids and in the contracts. The stated analogy by the city, however, is inapt, for we are here dealing with a special fund created for a particular purpose and which is to be devoted to the expenditure of such direct and not for some collateral purpose or object. Had the city, in submitting the proposition of bonding the city to raise money by taxation for the construction of the contemplated improvement, embodied in the submission the alleged objectionable features and provisions complained of for the stated purpose to give employment to a larger number of men than admittedly was necessary to properly construct the improvement at an econmical and practical cost, but at an increased and unnecessary cost of $55,000, it may not be assumed the bonds would have been voted for.

When, therefore, the city openly and frankly admits that by imposing the complained of provisions more men will be required to do the work than otherwise would be required, and that the provisions were embodied in the proposals for bids and in contracts let and to be let for such very purpose, and thereby unnecessarily increased the cost of the proper construction of the project to the extent of $55,000, the right of taxpapers to complain and demand that the city desist from such a course is undoubted. That may not be denied by the assertion that the board of commissioners had *Page 147 a discretion in determining the cost of the construction. That is not the crux of the situation. When the question as to the reasonable or practical or economical cost of doing or letting the construction of a public improvement is involved, let it be conceded a wide latitude is given and ought to be given to the judgment of the board in the exercise of a wise and sound discretion for the benefit of the taxpayers and of the general public. Here the city in effect concedes and openly admits that, by the conditions imposed and under which the improvements are to be constructed, the construction will not be at a reasonable or practical cost, or at which the improvements without such conditions could properly be constructed; that the conditions are and will be imposed for the very purpose of employing more men than are necessary to contsruct the improvements, and that by so doing the construction will cost $55,000 more money than is necessary to properly construct them, and that all that admittedly is done not for the benefit of the taxpayers, but to promote private interests of a particular class in need of aid and support. Just as harmful would it be and just as much right would taxpayers have to complain if the city, on the assumption that it was not required to submit proposals for bids or let contracts to do the work, and that it itself could do it without bids or letting contracts, and to promote private interests of a particular class, undertook to do the work under the conditions stated in the complained of provisions and admittedly did and proposed to do the work in such manner for the avowed purpose of giving employment to more men than are necessary or required to properly construct the improvement and thereby unnecessarily and admittedly increase the cost in a substantial and material amount. Of course the city, under Compiled Laws Utah 1917, § 570 x 37, had power to construct the contemplated improvement and to regulate the construction and use of it. But let it not be overlooked or minimized that, to bond the city to raise money by taxation for such purpose, consent of the taxpayers was requisite; and that the proceeds derived *Page 148 from the sale of the bonds constituted a special fund to be devoted to the particular and direct purpose for which such consent was given. The board of commissioners was in duty bound to so expend and apply such fund. It had no discretion to do otherwise. By the statute referred to and certainly not the consent of the taxpayers was the board permitted in its discretion directly or indirectly to apply any part of such fund for any collateral or ulterior purpose, nor does the statute give the board any discretion to prosecute the construction of the improvement on a basis other than at a reasonable, economical, and practical cost, nor in such manner as to give employment to many more men than are required to properly do the work and thereby unnecessarily and admittedly to increase the cost thereof in a substantial and material amount.

Thus, when the city admits that it is not prosecuting the work at a reasonable and practical cost — asserts that it is not required to do so — admits that for a collateral and ulterior purpose, and to promote private interests of a particular class, it is so prosecuting the work as unnecessarily to require the employment of a great many more men than are necessary and at a substantial and unnecessary cost to the taxpayers, and imposed conditions requiring 90,000 eight-hour day shifts for common labor to complete the construction of the improvement, when without such conditions the construction could be completed with one-third such number of shifts, if, under such circumstance taxpayers may not legally complain, it is difficult to perceive under what circumstance they may do so; and still more difficult to perceive how to so prosecute the work was within the discretion of the board of commissioners and was not a clear violation of the trust imposed upon it in handling and expending moneys of the taxpayers.

Hence the numerous cases cited by the city to the effect that courts may not interfere with the discretion of municipal bodies in the expenditure of public funds or in the construction of public improvements have here no application, *Page 149 for they do not teach that in expending public funds the municipality may without restraint commit waste, or for some collateral purpose and to promote private interests of a particular class may directly or indirectly devote or use a special fund or a substantial portion thereof for a purpose or object for which the fund was not created, or that a municipality without restraint may prosecute the construction of a public improvement in such manner, as the city here in effect admits, is not at a reasonable, economical, or practical cost, but at a materially increased cost in order to give employment to more men than are necessary to properly construct the improvement. The cited cases do not teach any such doctrine as that.

Nor may the course pursued by the city be defended upon the further claim made by it that the money's paid and to be paid because of the increased cost of the construction of the improvements will nevertheless be applied to and go in the construction of the improvements for which the special fund was created. If that be true, then would it also be true if the city, to give employment to a still greater number of men, required not only all excavating, loading, and back filling to be done by hand labor, but also all other labor of every kind and character to be done exclusively by hand work without the aid or use of machinery, tractors, or equipment of any kind.

Should it again be said such a requirement would be unreasonable, it would be so because incurring unnecessary costs and expenses in making the improvements, committing waste of a substantial portion of the special fund and applying it to a purpose or object not contemplated by its creation, which reasons equally apply, only in a lesser degree, to the situation in hand by imposing the complained of provisions and requiring them to be carried out to give employment to more men than are necessary to do the work. As well may it be said the city itself could levy taxes to make direct appropriations to aid and support the unemployed which no one contends the city may do. Should it be said, as *Page 150 in substance is urged by the city, that in the one instance, giving employment to more men than necessary or required to do the work to give aid to and support the unemployed, the moneys paid to such workmen nevertheless are applied to the construction of the improvement, and that, in the other instance, moneys appropriated and donated to the unemployed would not; such attempted distinction in substance is no real distinction, for, what the city may not do directly, it cannot do indirectly; and moneys so paid and expended would not in fact be paid for the construction of the works, but in reality and primarily as charity to aid those to whom paid.

There are so-called "cracker-barrel philosophers" who, by their pseudo-philosophies, contend that the more difficult it is made to do a thing the better it is for those who have to sell labor, denounce the machine age and mass production, insist that modern labor saving machinery diminish employment and enslave the many to make captains of a few, and to a large extent the use of them should be restricted or prevented, that mankind would be better off by causing work to be less productive and by requiring additional labor to accomplish the same thing, or by getting as little done as possible by as much labor as possible, all of which Proffessor Taussig in his treatise on "Principles of Economics," vol. 2, p. 194, has shown to be spurious, "and that if all men did that, all would be worse off." To such effect are also other well-recognized authorities on economics.

It is further to be observed that one of the provisions embodied in the proposals for bids and contracts let and to be let for the construction of the work requires the contractor to employ all workmen therefor through the agency appointed, controlled, and directed by the board of commissioners. While the contractor is permitted to select workmen furnished and supplied by such agency under rules and regulations promulgated by it and approved by the board of commissioners, yet otherwise he is given no choice in the selection of his workmen, and thereby a substantial limitation *Page 151 and restriction is put upon competition and opportunity in obtaining labor, as well as to the character and quality of it, except as the contractor may be able to select it through those good, bad, and indifferent furnished and supplied by the agency. By his contract, the contractor is held to a strict compliance with the plans and specifications prepared and submitted by the city and to a full completion of the work to its satisfaction, and is in every way held liable and responsible for the manner in which the work is done by his workmen, yet, to a substantial degree, is limited and restricted in the selection and hiring of his workmen. By the contract he even is not given the right, for cause or otherwise, to discharge any of his workmen, except as may result from a rotation of them as by the contract and rules and regulations of the agency provided. That such a provision materially affects competitive bidding and tends to influence the conclusion to be reached by a responsible bidder as to the amount or price for which he, in view of such restriction, may be willing to undertake the construction of the work, may not well be doubted. It is conceivable, because of such and of other complained of provisions, that some responsible bidders would even decline to bid or enter into contracts to do the work under such conditions and restrictions imposed and required. If competition with respect to any material element by proposals for bids and by contract be limited or restricted, the very purpose of submitting proposals for bids to obtain contracts to do the work at a reasonable and practical cost, is to that extent impaired, if not destroyed. Frame v. Felix, 167 Pa. 47,31 A. 375, 27 L.R.A. 802; Street v. Varney Electrical Sup. Co.,160 Ind. 338, 66 N.E. 895, 61 L.R.A. 154, 98 Am. St. Rep. 325;Fiske v. People, 188 Ill. 206, 58 N.E. 985, 52 L.R.A. 291;Wright v. Hoctor, 95 Neb. 342, 145 N.W. 704, 146 N.W. 997, 52 L.R.A. (N.S.) 728, Ann. Cas. 1915D, 967.

Now, as to the provision requiring the contractor to pay a minimum wage of $3.50 per day for all labor. Admittedly the authorities are in conflict as to the validity of statutes *Page 152 and ordinances fixing a minimum wage. Notes, Ann. Cas. 1913E, 990; notes 51 L.R.A. (N.S.) 686. Let it be assumed that by the weight of judicial authority it is competent for the state, in the absence of express or implied constitutional restrictions, to fix a minimum wage for labor on all public work or improvements, or may authorize municipalities to do so. But that here does not solve the problem. We have a constitutional provision (article 16, § 6) which provides that eight hours shall constitute a day's work on all works and undertakings carried on or aided by the state, county, or municipal governments. We have a statute (Comp. Laws Utah 1917, § 3666) to the same effect. That is not here involved and no complaint made of it. We, however, have no constitutional provision, nor any statute, nor have we been referred to any ordinance of the city, fixing a minimum wage for workmen or laborers whether employed on public works or otherwise. We had a minimum wage scale for females (section 3671), but that was repealed by Laws Utah 1929, c. 9, page 12. In some jurisdictions, by legislative enactments or by charters granted, authority is conferred upon municipalities to fix a minimum wage for workmen and laborers employed in the construction of public works. We have no such legislative enactments, nor does the city contend that there is any such. It merely asserts that under its general police powers it in such respect may do all that the state might do. But no such power is conferred upon the city. It may not be exercised under the general welfare clause of section 570 x 2, supra, for that relates merely to the power "to appropriate money for corporate purposes," nor under other mere general welfare clauses. Such clauses must be considered and applied in connection with the subject to which they relate and of which they are a part. To disconnect them from context and independently thereof consider them as giving the municipality power to do whatever it reasonably may will to do is but to say that under such general welfare clauses all the police power possessed by the state has been conferred on municipalities. The contrary *Page 153 has been declared many times. So to authorize the city in the legitimate exercise of police power, without even promulgating an ordinance on the subject to fix a minimum wage in contracts let and to be let by it for the construction of public works, requires express authority therefor. Since the police power, as we all know, is an attribute of soverignty and is inherent in and belongs to the state, and that the power may be exercised by a municipality or other governmental body or board only as the power may have been expressly delegated thereto by the state, it is groundless to assert that the city in the legitimate exercise of a claimed police power may do what the state might do, and to do so is violative of the well-recognized and established rule in this and in many other jurisdictions that the powers of the city in such respect are strictly limited to those expressly granted and necessarily implied by those so granted. Here let the matter not be confused by the citation of numerous authorities where statutes fixing a minimum wage have been upheld, and ordinances where, by legislative enactments or by charters, the municipality was authorized to promulgate such an ordinance. In a few jurisdictions authority is given municipalities to exercise all acts of police power not prohibited by the Legislature. Cases from such jurisdictions are also cited upholding ordinances promulgated on the subject. But the rule here is, and many times declared by us, that the powers of the city are strictly limited to those expressly granted and necessarily implied by those so granted. Confessedly, we here have no statute nor any ordinance on the subject of minimum wage. Hence, cases cited upholding statutes and ordinances on the subject are wholly inapplicable. If the power so exercised by the city was unauthorized, as it is, it is no answer in defense thereto to assert, as does the city in part, that the minimum wage so imposed was the current wage usually paid by contractors for such and similar work, for that, imposing a minimum wage in proposals for bids and in contracts let and to be let has a direct tendency to influence competitive bidding and impair *Page 154 the very purpose of submitting proposals — the policy here pursued and threatened to be pursued by the city — to obtain contracts on terms at the most reasonable, economical, and practical cost and to the advantage of the taxpayers in having the work economically done. But, aside from that, it is here averred and admitted that, had not the provision of minimum wage been so imposed, common labor could have been obtained at $3 a day.

If, as to this provision as well as to other complained of provisions imposed in proposals for bids and in contracts let and to be let, it be said, as it is, that the board of commissioners by imposing them acted in good faith to benefit and aid a particular class, yet, must it also be noticed and not minimized nor lightly pushed aside that the primary and more important duty imposed on the board and the city in spending the taxpayers' moneys intrusted to them for a special and particular purpose was to so expend the fund as best to accomplish an efficient and proper construction of the improvement at an economical, reasonable, and practical cost and for the benefit of the taxpayers and of the general public. The board was required to be as solicitous to promote and safeguard the interests of the general public and of the taxpayers as to promote interests of and give aid and benefit to a particular class.

Let it be assumed that, everything being equal as to quality and cost, it was competent for the city to require all material to be used in the construction of the works to be purchased from materials and products manufactured or produced in the state.Murphy v. Salt Lake City, 65 Utah 295, 236 P. 680, lends some support to such view. But a more serious question is that relating to the preference required to be given laborers and employees of all kinds, skilled and unskilled. We have a statute (Comp. Laws Utah, 1917, § 4865), which provides that in employing workmen in or on the construction of public works by the state, county, or municipality, whether by contract or otherwise, "preference shall be given citizens of the United States, or those having *Page 155 declared their intention of becoming citizens," and that such provision shall be inserted in contracts for the construction of such works, and, if not complied with, the contract shall be void. The evident purpose of such a statute is to give preference to such citizens as against aliens. Statutes of like kind have been held constitutional. People v. Crane, 214 N.Y. 154,108 N.E. 427, L.R.A. 1916D, 550, Ann. Cas. 1915B, 1254; Crane v.New York, 239 U.S. 195, 36 S. Ct. 85, 60 L. Ed. 218; Heim v.McCall, 239 U.S. 175, 36 S. Ct. 78, 60 L. Ed. 206, Ann. Cas. 1917B, 287. Let it be assumed and as there held that it was competent for the state to declare such a policy without offending constitutional provisions; but that does not here help the situation. No claim is made involving the validity or application of the statute on the subject. The point here is this: Since the Legislature itself has declared what preference in constructing public works may be given to laborers — to citizens of the United States or to those having declared their intention of becoming citizens — may the city enlarge or restrict such legislative enactment and policy not sanctioned by nor embraced within the act? In other words, may the city in such respect do more than what the state has done and declared? The condition in such respect imposed by the city is that "preference shall be given to the citizens of the United States or those having declared their intention of becoming citizens and particularly to bona fide residents and heads of families in" Salt Lake City; and as is alleged and admitted the city thereunder has promulgated a rule and regulation requiring the employment of all labor, not only from those furnished and supplied by the agency, but also only those who have been bona fide residents of the city for at least one year and heads of a family. However laudable or commendable the desire under existing conditions to so restrict the employment of labor, we look in vain for any such legislative sanction. It certainly is not given by the statute referred to on the subject. The city may not nor may we enlarge and expand or restrict the statute to suit emergencies *Page 156 or conditions or particular cases not embraced within the statute, and successfully escape the charge of judicial legislation. Contracts restricting the employment of labor in constructing public improvements to citizens and residents of the city in which the work is to be constructed have been held invalid. Diver v. Savings Bank, 126 Iowa 691, 102 N.W. 542, 3 Ann. Cas. 669. While the contract was there held invalid, yet by reason thereof no relief was granted, because no complaint was made until after the work was done and benefits received of the contract and because it affirmatively was made to appear that the manner in which the labor was employed did not increase the cost price of the work. Here complaint made is timely, and here it is alleged and admitted that each and all of the provisions imposed did and will materially increase the cost of the construction of the improvements, and, had "any of them been eliminated," bids substantially less in amount would have been and will be received for such construction. In such particular as well as in all considerations of fact in the case it must be borne in mind that the case, on the demurrer to the petition for the writ, by stipulation of the parties, is presented and submitted for decision on the merits without leave of further pleadings or proceedings in the cause.

A further point is made by the city that in the construction of the improvements it exercised a proprietary power or function as distinguished from a governmental one, and for such reason it is contended the manner in which such power is exercised is not of judicial inquiry except on the ground of fraud. We need not now consider the variant and conflicting views of courts as to when a power exercised or an act performed by a municipality is a proprietary or a governmental power, or as to whether the construction of the improvements in question is the exercise of the one or of the other power, for the reason that on the alleged and admitted facts of the case it is of little moment whether the construction be regarded as the exercise of the one or of the other power. When the city deals with proceeds of a special *Page 157 fund raised by taxation for a particular purpose to construct a public improvement, it may not, whether exercising a proprietary or governmental function in the construction thereof, waste a substantial portion of such fund, or directly or indirectly divert or apply it to some collateral purpose, or to promote or aid private interests of a particular class so prosecute the work as under the conditions stated and imposed, for the purpose of giving and requiring the employment of many more men than are necessary to properly construct the improvements and thereby admittedly increase the cost of the construction $55,000. The wrong lies in doing that, whether done in the name or under the claim of a proprietary or of a governmental power, and may not be defended under either claim. Richards v. City of Portland,121 Or. 340, 255 P. 326, and cases there cited.

Lastly, at the oral argument of the cause it was admitted by the city that the well-recognized text-writers and authors, McQuillin and Dillon on Municipal Corporations, either are against or do not support the contentions of the city, at least in most particulars, and that it was unable to find any judicial authority directly in point either in favor or against the authority of the city to impose all of the material conditions imposed by it. It, however, referred to and cited numerous cases which it claimed in principle and by analogy support all of its contentions. But on the alleged and admitted facts of the case in hand I think such cases are readily distinguishable and therefore inapplicable.

Thus, when the city in soliciting bids and letting contracts for the construction of the improvements by imposing conditions for collateral purposes and which materially enhanced the practical and economical cost of a proper and an efficient construction of the improvements and as by the plans and specifications provided by the city, it, for reasons heretofore stated, undertook to do what it had no lawful right to do. Laudable and proper enough it is for the city, because of unemployment conditions, to now construct the needed improvements, yet in the construction of them, to *Page 158 meet an emergency which has not a thing to do with, nor in any way related to, the construction or use of the improvements themselves, nor even with the necessity of them, the city may not transcend its powers and do what admittedly it could not legitimately do without such emergency. To assert the contrary and so to establish a precedent whereby the city is permitted to construct public improvements not at a practical and an economical cost, but in such manner as to render the performance of the work more difficult and so as to require the employment of much more additional labor than necessary to accomplish the same thing and thereby materially increase the cost of the construction, may not, in the language of Dillon, supra, "be contemplated without deep anxiety."

As prohibition is a preventive and not a corrective remedy, it is doubtful whether prohibition may undo what already has been done or affect costs and expenses with respect thereto which have already been incurred. But the performance of the contracts let containing the provisions complained of (except as to the purchase of materials and products manufactured and produced in the state); and which, or portions of which, have not yet been performed, and entering into contracts threatened to be let with the objectionable features, should be restrained on the ground that such contracts with such provisions are against public policy, and are unauthorized and invalid. I therefore concur in the granting of the writ.