Malette v. City of Spokane

Paekee, J.

(concurring)- — Upon more mature consideration, I am constrained to concur in the foregoing opinion, though it overrules the decision rendered by Department One, in which I concurred. I was led to entertain the views expressed in the former decision because it then seemed to me that there was a distinction to be drawn between work done by the city to be paid for out of its general funds, and work done under the supervision of the city officers to be paid for by special assessment against the benefited property; in that the former constituted an act of the city in its own behalf without any element of agency being involved, while the latter constituted an act of the city officers as agents of the property owners who were to pay for the improvement by special assessment against their property. However, a review of the authorities cited in Judge Ellis’ opinion convinces me that no such distinction can he rested upon sound legal grounds. The notion of agency on the part of municipal officers for the property owners in the making of local improvements, somewhat loosely expressed in the decisions of the courts, I apprehend, for the most part, arose from the fact that, in the early history of local improvements and assessments, they were not made save by consent of the property owners or some considerable majority of them; this, not for want of legislative power to provide otherwise, but because of legislative restrictions against forcing such improvements and assessments upon property owners except by consent of some specified majority of the owners of the property within the particular district involved. Under existing laws in this state, such improvements and assessments can be lawfully made even against the will of all of the property owners of the district involved. This being true, I am now of the opinion that the officers of the city, so far as their powers are concerned, do not represent the owners of property to be assessed for local improvements in any different capacity than they represent the general taxpayer when carrying on a public work for the city to be paid for by general taxation, and that the former is as purely public work as the latter.

The review of the statutory and charter powers of Spokane relative to the making of local improvements and assessments, made by Judge Ellis, seems to render it plain that such improvements are not required to be done by contract, nor to be awarded to the lowest bidder when done by contract, so far, at least, as labor is concerned; so that the element of competition in that regard is not, by law or charter, required in the making of such improvements any more than when the city employs a servant in any capacity. This problem, it seems to me, in its last analysis, is simply a question of the power of the city, through its duly constituted officers, to contract for public work involving the discretion of such officers to pay or cause to be paid reasonable compensation for such work. Viewed in this light, I am of the opinion that it was not an abuse of discretion on the part of the city authorities to fix the minimum compensation of laborers employed upon public work of the city at the amount they did by the ordinance here involved.

At the former hearing, having in view a distinction between work done by the city at the expense of the general taxpayers and work done by the city officers at the expense of special assessment payers, and that the latter partook of the nature of private work between employer and employee, which I now concede to be erroneous, and the argument of counsel being then directed largely to the city’s police power, I was convinced that the city possessed no such police power as would enable it to fix a minimum wage as between private employer and employee. Whether the state, by legislative enactment, may not fix a minimum wage as between private employer and employee, is quite a different question, as to which I refrain from expressing an opinion at this time. But I do not think the question of police power is involved in this case at all — no more than it is when the city employs a servant and fixes his compensation. Should the compensation so fixed be clearly excessive, a taxpayer may have the right to interfere by proper proceedings in court, just as he would have the right to so complain were the city buying supplies and paying a clearly excessive and unwarranted price therefor. I am not able to see that the property owner paying a local assessment would have any different or higher right to complain. I apprehend, however, that such unwarranted use of public funds by the city authorities would have to be of such a flagrant character that reasonable minds could not differ relative thereto before the courts could be induced to interfere. We have no such case here.

I am free to say that, upon the former hearing, I was as fully convinced of the correctness of the views expressed by the writer of the opinion as he was himself; but more mature consideration of the real question involved has led me to the views I here express, and I therefore concur in the foregoing opinion.