(dissenting) — I still adhere to the conclusion reached by the court at the first hearing. Malette v. Spokane, 68 Wash. 578, 123 Pac. 1005. The concrete question presented is, Can a city arbitrarily fix a minimum wage, approximately twenty-five per cent in excess of the current wage, and assess the same against the property benefited by the improvement upon which the labor has been performed, in the absence of express or clearly implied authority from the state? In my opinion it cannot do so.
“Courts will review the question as to reasonableness of ordinances passed under a grant of power general in its nature or under incidental or implied municipal powers, and if any given ordinance is found unreasonable will declare it void' as a matter of law.” McQuillin, Municipal Ordinances, § 182.
The power of the state itself to fix a minimum wage is not before us, for it has not as yet legislated upon that subject, nor has it expressly delegated the power to cities to do so. The needs of the laborer resulting from the higher cost of living are beside the question. Upon that subject, I raise no issue. The question is, Shall the reasonableness of the ordinance be measured by the current wage, or by what the court conceives the current wage ought to be? I think the former must be the test until the state itself has definitely spoken. Up to the present, it has never been held, to my knowledge, that a city may make a donation to a citizen under color of law, and assess the bounty against the property of an objecting owner. I cannot escape the conclusion that a payment for a public work, twenty-five per cent in excess of the price at which other citizens stand ready to do the work, where the *240work is done by tbe city upon the assessment plan, is, in the absence of clear statutory warrant, in the nature of a bounty. If the city may fix a minimum wage largely in excess of the current wage, it may, with a like consistency, fix a minimum price for all material that enters into a public work, for the larger part of the cost of most material is human,labor; and the man behind the brick and cement- — that is, the man who furnishes the labor to put it into usable form — is as worthy of legislative protection as the man who puts it down. Whether the council is the agent of the property owner, as Judge Chadwick concluded, or the “agent of the law,” as Judge Ellis concludes, where it acts under a general grant of power, its acts must be subjected to the test of reasonableness. Until the state has definitely declared a policy fixing a minimum wage upon all work done for it and its members, whether paid for hy general taxation or by assessment upon the property benefited, I feel constrained to take the view that an ordinance like the one in question is unreasonable.
I have contented myself with a brief statement of my view because the subject was fully treated by Judge Chadwick following the first hearing. I therefore dissent.
Mount, J. — I concur in the view expressed by Judge Gose.