WALLACE v. BOARD OF EDUCATION OF MONTGOMERY CTY.

COLEMAN, Justice.

This case was submitted to this court on January 11, 1967. Because of the public interest in the question presented, the case has been given preferred treatment in order that a decision might be rendered in advance of the time when a decision would have been rendered if the case had been considered in the regular order. Counsel for both appellants and appellees have been diligent in filing briefs and expediting submission of the appeal.

The complainants are: the Board of Education of Montgomery County; the members of the board individually, as members of the board, and as taxpayers and interested citizens acting under Act No. 868, approved September 8, 1961, Acts of Alabama 1961, page 1361; and the Superintendent of Education of Montgomery County, individually, as superintendent, and as taxpayer and interested citizen under Act No. 868.

The respondents are: the members of the Alabama Public School and College Authority in their capacity as such members; the members of the Alabama Building Commission as such members; the Director of the Alabama Building Commission; and the architects employed by the Commission.

Complainants pray that the court will restrain respondents from letting a proposed contract to construct a school building in Montgomery. In the contract, respondents have provided that the contractor must pay to all laborers, mechanics, carpenters, masons, and other specified classes of employees of the contractor, who work on the construction of the school building, a predetermined, minimum, hourly wage according to the applicable rate as is set out in a schedule for each class of employee, respectively.

Complainants further pray that the court declare the minimum wage requirement in the proposed contract void and that the complainant Board of Education is entitled to its proper allocation of state money provided by law for construction of the school building, without the predetermined minimum hourly wage requirement.

After hearing testimony ore tenus, the court made certain findings as follows:

The court permanently enjoined respondents from requiring the predetermined specification of wages in the construction of the school on Carter Hill Road and any other school construction in Montgomery. The court further ordered that respondents forthwith distribute to the Board of Education of Montgomery County its proper allocation under Act No. 243, approved May 4, 1965, Special Session of the Legislature of Alabama, and that advertisement be forthwith made for bids for construction of the new school on Carter Hill Road in Montgomery, without the inclusion of the predetermined specification of wages in the plans for said school.

Respondents appealed. They argue that the provisions of the Competitive Bid Law, Title 50, § 15(5) et seq., Code 1940, as amended, "have no application to the present suit," and state the question for decision as follows:

The question for decision is the same question which the parties in Bear Brothers, Inc. v. Trammell, 279 Ala. 194, 183 So.2d 790, undertook to present in that case, which, however, was decided on another issue.

Respondents argue that the instant suit is a suit against the state and, for that reason, cannot be maintained under authority of Wallace v. Malone, 279 Ala. 93, 182 So.2d 360.

In Malone, this court held that a bill was without equity wherein complainants sought to enjoin the officers and members of the State Board of Education from cancelling a contract previously entered into by complainant as one party, and the state acting by and through the State Board of Education as the other party. This court held that the suit was a suit to redress breach of contract by the state and that the suit could not be maintained because it was a suit against the state forbidden by Section 14 of the Constitution of 1901.

As stated in Glass v. Prudential Ins. Co. of America, 246 Ala. 579, 586, 22 So.2d 13, and other cases, it is the nature of the suit or relief demanded which the courts consider in determining whether a suit against a state officer is in fact one against the state within the rule of immunity referred to, and it is not the character of the office of the person against whom the suit is brought.

We wish to make it abundantly clear that there is not the slightest implication whatsoever that respondents are acting fraudulently or in bad faith.

The ultimate question is whether the bill alleges and the proof shows that the Building Commission is acting within its authority conferred by law when the Commission requires the insertion of a predetermined, minimum, wage scale as one of the specifications of the contract for construction of the school building. If the Commission, in requiring such wage scale, is acting within its lawful authority, then the court erred in granting the injunction. On the other hand, if the act of the Commission, in requiring the wage scale specification, exceeded the lawful authority or discretion granted to the Commission, then the act of the Commission is not the act of the state and the suit is not against the state and the decree enjoining the doing of the act is not erroneous.

Respondents, as we understand their argument, make no distinction between the prohibitory and the mandatory provisions of the decree, and, because the parties have made no such distinction we have made none. Whether the mandatory provisions of the decree, if considered separately from the prohibitory provisions, might be erroneous is not presented and, therefore, is not decided. Appellants seek merely a determination whether the Building Commission acted within its lawful authority in requiring the predetermined, minimum, hourly wage scale specification in the contract.

Respondents quote from Title 55, § 367 (2), Code 1940, Recompiled 1958, as follows:

Respondents quote also from Act No. 243, Acts of Alabama, Special Session 1965, page 331, Section 10(n) (2), at page 340, as follows:

Respondents say that this "specific grant of authority to write the specifications for construction financed by these particular funds should remove all doubt as to the Building Commission's authority to include all specifications which it considers reasonably necessary."

Respondents say also that the specification requiring a predetermined, minimum, wage scale does not violate the procedural provisions of the Competitive Bid Law, Title 50, Section 15(5), Code 1940 Recompiled 1958; Act No. 492, approved September 30, 1947, General Acts 1947, page 338, which recites in part:

Respondents say that the Competitive Bid Law is merely a procedural statute which relates only to the manner in which the contract is awarded and does not govern the substantive provisions which go into the contract.

It is clear to us that there is no express grant of authority to the Building Commission to require a specification compelling a bidder to agree to pay a predetermined, minimum wage to employees of the contractor.

Act No. 686, Sections 3, 4, and 5, Acts of 1961, pages 1361 and 1362; 1940 Code Recompiled 1958, Title 50, § 15(16) (17) (18), recite as follows:

The quoted provisions of Act No. 868 appear to us to give the Competitive Bid Law application to the substance of the instant contract as well as to procedure in letting contracts.

We come to the question whether a specification requiring a contractor to agree to pay to employees on the work a predetermined, minimum, hourly wage is a specification which the Building Commission is authorized to insert in contracts which must be let to the "lowest responsible bidder" as required by the Competitive Bid Law, Title 50, § 15(5), Code 1940 Recompiled 1958, quoted above.

Respondents cite an opinion which appears in Quarterly Report of the Attorney General of Alabama, Vol. 54, page 27. The headnote of the opinion recites:

The opinion holds that the county governing body, in fixing a scale of minimum wages for work on a road construction job and requiring a contractor to adhere to the wage scale as a condition of the contract, would be acting within its discretion and would not be acting in violation of a statute which required that such contracts be let to the "lowest responsible bidder." The opinion reasons that the governing body had discretion to require conditions which, in their opinion, "will tend to insure that good roads will be built in expeditious fashion"; that the county governing body might reasonably conclude that labor strife would delay construction in the absence of minimum wage provisions; and that the governing body might feel that better workers would be employed by companies paying a minimum wage.

Whether a contract should contain a requirement that the successful bidder must pay a predetermined, minimum, wage is a matter of discretion properly entrusted to a legislative body which has the lawful authority to exercise a legislative discretion, but we do think such a discretion has been delegated to the Building Commission which is a branch of the executive department of state government. See Sections 43 and 44, Constitution of 1901.

The general proposition is everywhere recognized that the Legislature cannot delegate its legislative powers, save as authorized by the Constitution itself. The power to delegate to counties and cities certain legislative powers relating to local governments is a part of the full legislative powers conferred on the Legislature. In re Opinions of the Justices, 232 Ala. 56, 58, 166 So. 706.

The legislature has given to the Building Commission power, on behalf of the state, to plan buildings and to construct, repair, equip, remodel, enlarge, renovate, furnish, improve, and locate such buildings for the use of the state or any of its agencies, and to appoint and dismiss officers and employees, including architectural and technical employees, as may be necessary to effectuate the purposes of the statute. "All employees of said commission shall be subject to the provisions of the merit system. The commission is authorized to fix by contract the fees or compensation of all architectural and technical employees without regard to the Merit System Act," and the commission is empowered to make all necessary rules for proper conduct of its duties. § 367(2), Title 55, 1958 Recompilation of Code of 1940.

Nowhere, however, have we found in the statute authority to fix wages of employees of contractors who perform the contracts let by the Commission.

The powers delegated to the Commission certainly appear to authorize the Commission to designate the quality and nature of material to be used and the quality of the work to be required. We do not think, however, that the fixing of a minimum wage for employees of the contractor can reasonably or necessarily be expected to tend to insure better quality work under the instant contract. Under a required minimum wage, the unskillful artisan will be guaranteed the same minimum wage as the skillful workman, the indolent the same minimum wage as the industrious craftsman. The power to designate the quality of material to be used does not carry with it the power to require that the contractor must pay a specified minimum price to the seller for each unit of material used, and, by analogy, we do not think the power to designate the quality of workmanship carries with it the power to require that a minimum, hourly, wage shall be paid to all employees of the same class performing the work.

The power to require a minimum, hourly, wage for employees of contractors on public works is a legislative power as we see it. It is the power to "fix and declare a public policy in the matter of wages and conditions of labor on public works." Stover v. Winston Bros. Co., 185 Wn. 416, 55 P.2d 821, 823. In the last cited case, the court held that a workman, who had worked for the contractor in performing a public work contract for a city, was entitled to recover the minimum wages fixed by a city ordinance which had been incorporated in the contract. The court held that the city had power to adopt the ordinance and that the contractor was estopped from asserting that the city lacked such authority after the contractor had obtained all the benefits flowing to him under the contract. The court recognized that the "main purpose" of the contract "was, without doubt, to provide to the workmen an adequate wage."

In Wagner v. City of Milwaukee, 180 Wis. 640, 192 N.W. 994, also relied on by respondents, the court held valid an ordinance enacted by the city council providing for a minimum wage to be paid by contractors to their employees on public work. The court held that the ordinance did not violate a provision of the city charter which required that contracts be let to the lowest responsible bidder. It was the declared purpose of the ordinance to "insure a living wage to all laborers employed on all city work." In holding the ordinance valid, the court said:

We agree that the question whether contractors shall be required to pay a specified, minimum, hourly, wage to employees on public work is a matter addressed to legislative discretion. For the reasons stated, however, we do not agree that the discretion to require such predetermined, minimum, wage is included in the power delegated to the Building Commission by the statutes cited and relied on by respondents in the instant case. Neither do we agree with the authorities cited by respondents.

We point out that we are not here concerned with the construction or validity of any act of the legislature of this state authorizing the Building Commission to determine and fix a minimum wage to be paid by successful bidders on contracts let by the Commission. No such statute has been called to our attention.

The trial court, in the decree appealed from, held that the requirement of a predetermined, minimum, hourly wage in the instant contract violated the provision of the Competitive Bid Law which requires that "The contract shall be awarded to the lowest responsible bidder complying with conditions of the invitation for bids...."

We interpolate here that we understand that the money here under consideration is altogether money of the state.

In Hillig v. City of St. Louis, 337 Mo. 291, 85 S.W.2d 91, petitioners sought an injunction to restrain the City of St. Louis and its Board of Public Service from awarding a paving contract. The trial court sustained a demurrer to the petition on the ground that the facts alleged failed to state a cause of action against respondents. The petition charged that the city had passed an ordinance which prescribed minimum rates of wages to be paid by contractors doing work under contract with the city. The contract in question required that the successful bidder comply with the ordinance. The appellate court reversed the trial court and held the ordinance void for the reason that the ordinance was in contravention of the city charter which required that "all public work" be awarded by contract to the "lowest responsible bidder." The court said:

In Philson v. City of Omaha, 167 Neb. 360, 93 N.W.2d 13, the court held invalid ordinances which fixed a requirement that bidders on contracts pay a predetermined, minimum wage. The court quoted from Hillig, supra, and held the ordinances violative of the charter provision "that public contracts shall be let to the lowest responsible bidder."

In Parish Council, etc. v. Louisiana Highway, etc., (La.App.), 131 So.2d 272, 298, the court held that the minimum wage requirement of a contract violated the competitive bid law and said:

We affirm the holding in the case at bar that the contract provision requiring contractors to pay a predetermined, minimum, hourly, wage violates the Alabama Competitive Bid Law.

Affirmed.

LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur.