Concurring.
I agree the trial judge applied K.S.A. 44-201 incorrectly, but I am unable to join in the majority opinion.
The principal question before us is whether ascertainment of the current rate of per diem wages under K.S.A. 44-201 requires account be taken of the kind of work performed by the contractor, the plaintiffs’ employer, under its contract. While there is no case law under the present language of K.S.A. 44-201 addressing the question, I find State, ex rel. v. Construction Co., 99 Kan. 838, 162 Pac. 1175 (1917), dispositive. Accordingly, I view it unnecessary and inappropriate to take upon ourselves pronouncement of public policy and legislative intent not expressed by the legislature. Such judicial pronouncements too frequently are mere description of consequences of legislative action, assumption of a legislative role, plain legal fiction, or flights of fancy. Reference to the Davis-Bacon Act (40 U.S.C. § 276a), regulations spawned under it, and opinions of our attorney general is unnecessary in the search for authority, precedential or otherwise, in this case.
By legislative action in 1931 (L. 1931, ch. 214, § 1), the relevant statutory provisions were amended so that the following is the pertinent language:
“ ‘The current rate of per diem wages’ for the intents and purposes of this act shall be the rate of wage paid in the locality ... to the greater number of workmen, laborers or mechanics in the same trade, occupation or work of a similar nature. . . . Not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers or other persons . . . employed [by or on behalf of the state of Kansas]. And laborers and other persons employed by contractors ... in the execution of any contract or contracts with the state of Kansas . . . shall be deemed to be employed by or on behalf of the state ... so far as the . . . compensation herein provided [is] concerned.” (Emphasis added.) K.S.A. 44-201.
Prior to 1931, the relevant statutory provisions were:
“[N]ot less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, and other per*581sons . . . employed by or on behalf of the state of Kansas ... . [L]aborers, workmen, mechanics and other persons employed by contractors ... in the execution of any contract . . . [with] the state of Kansas . . . shall be deemed to be employed by or on behalf of the state of Kansas . . . .” (Emphasis added.) (G.S. 1915, ch. 61, art. 3, § 5870.)
“[T]he current rate of per diem wages” was not statutorily defined prior to 1931. Even so, the issue at hand was effectively decided in State, ex rel. v. Construction Co., 99 Kan. at 838-840, where it is said:
“The defendant, under a contract with Wyandotte county, is building a concrete bridge across the Kansas river in that county.
“This is an original proceeding in quo warranto. The defendant is charged with violating chapter 220 of the Laws of 1913 (Gen. Stat. 1915, § 5870). The action is brought to oust the defendant . . . from paying laborers less than the current rate of wages in the locality in which the work is being performed. The order now asked by the state is that ... a temporary injunction be granted restraining the defendant . . . from paying such workmen less than the current rate of wages.
“. . . The plaintiff’s evidence tends to show that the current rate of wages is sixty-five cents an hour for . . . ‘form-building for reinforced concrete construction The plaintiff’s evidence also tends to show that—
“ ‘[T]he work of form building upon said Kansas river Central avenue bridge and its approaches required the same skill and ability, and was of the same class of work as the work done upon . . . buildings [erected for a milling company, an engineering company and two soap manufacturers].’
“The defendant’s evidence tends to show that the current rate of wages for form-builders for reinforced concrete work on bridges and viaducts constructed in Wyandotte county, Kansas, and in Kansas City, Mo., and on other reinforced concrete work similar to that done by the defendant ... is not in excess of forty cents per hour ....
“The evidence of the plaintiff and that of the defendant do not directly contradict each other. ... It appears clearly from the evidence of the plaintiff that on certain buildings the current rate of wages for form-builders is sixty-five cents an hour. It appears from the evidence of the defendant that in bridge and viaduct work, the character of work being performed by the defendant, the current rate of wages is thirty-five to forty cents an hour. So far as the question of wages is concerned, this controversy must be determined upon the current rate of wages for the kind of work being done by the defendant. The burden of proof is on the state. It has not established by a preponderance of the evidence that the current rate of wages for the work being done by the defendant is sixty-five cents an hour. The preponderance of the evidence is that the current rate of wages for that work does not exceed forty cents an hour.” (Emphasis added.)
(In some parts of the briefs in the case before us, it seems to be overlooked that the defendant in State, ex rel. v. Construction Co. *582was the contractor-employer, not a workman-employee.)
I find inescapable the conclusion that the Supreme Court held in State, ex rel. v. Construction Co. the ascertainment of “the current rate of per diem wages” requires account be taken of the kind or character of work performed by the defendant-employer under its contract; the test is not “task-for-task” on all and every kind and type of construction work in the locality. In State, ex rel. v. Construction Co., the “kind of work” was bridge and viaduct work. Here the “kind of work” is the kind and type of construction work involved in the construction of the Honey Ree Lodge, whatever that kind and type of work was.
I am convinced the statutory definition of “the current rate of per diem wages” added in 1931 only emphasizes the requirement that account must be taken of the kind of work performed by the contractor-employer under its contract with the State.
The trial judge applied the wrong yardstick. Prior to final appellate decision of this case, he should be afforded the opportunity to pass upon the sufficiency and persuasiveness of the evidence the plaintiffs have presented in light of and upon application of the proper yardstick.