Opinion
Page __
__ Cal.App.2d __239 P.2d 893PARKER et al.v.BOWRON, Mayor of the City of Los Angeles et al. Civ. 18517.California Court of Appeals, Second District, First DivisionJan. 21, 1952.Hearing Granted March 20, 1952.
Rehearing Denied Feb. 11, 1952.
[239 P.2d 894] David Sokol, Los Angeles, and Clarence E. Todd, San Francisco, for appellants.
Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., George William Adams, Alan G. Campbell and John F. Feldmeier, Deputy City Attys., all of Los Angeles, for respondents.
DRAPEAU, Justice.
The instant proceeding in mandamus was initiated by petitioner individually, as a member and officer of the Council of Federated Municipal Crafts of Los Angeles, and for and on behalf of certain affiliated unions and their members.
The petition alleges that petitioner Council of Federated Municipal Crafts of Los Angeles (hereinafter referred to as the Union) is an unincorporated association and that the United Brotherhood of Carpenters and Joiners of America, Local Union No. 2231; United Association of Plumbers and Steam Fitters, Local Union No. 78; Southern California District Council of Laborers and Carpenters District Council of Los Angeles County, all unincorporated associations, are members of the Union; that Union is devoted to improvement of working conditions of members of its affiliated unions; that each and all of the members of said affiliated unions have authorized Union to represent them collectively with respect to matters involving wages, hours and working conditions; and 'that in so doing the said 'Union' represents those members of the 'affiliated unions' who are working for the City of and County of Los Angeles, State of California, the Los Angeles City Board of Education, the Water and Power Department of the City of Los Angeles, and the Harbor Department of the City of Los Angeles.'
Petitioners here seek a writ of mandate requiring respondents, the mayor and the city council, to pay to plumbers, carpenters and laborers in the employ of the city of Los Angeles, salaries at least equal to those prevailing in private employment, in accord with section 425 of the City Charter which reads in part as follows: 'In fixing the compensation to be paid to persons in the city's employ, the Council * * * shall, in each instance, provide a salary or wage at least equal to the prevailing salary or wage for the same quality of service rendered to private persons, firms or corporations under similar employment, in case such prevailing salary or wage can be ascertained.'
It is alleged that in fixing salaries for the three named classifications--plumbers, carpenters and laborers--the city made a survey as to the prevailing wage in March, 1950; that such survey disclosed the actual monthly wage then being paid in private employment was more than city was paying for the same quality of work.
In this connection it is alleged that the prevailing wage in private employment was as follows:
$435 for journeymen plumbers; $382.80 for carpenters; $287.10 for laborers. But that city in violation of section 425, supra, was paying to members of the affiliated unions a graduated monthly wage scale as follows:
$303 for the first year of service and $375 for the fifth year to plumbers; $259 to $319 to carpenters; $181 to $221 to laborers.
It is also alleged that by reason of the survey, respondents had available facts from which they could have ascertained the prevailing wages for these three classifications, but that they refused to take such information into consideration, and refused to pay such prevailing wages.
A supplemental answer filed by respondents in open court at the start of the trial alleged that a salary ordinance effective January 30, 1951, had raised the monthly graduated scale of wages as follows:
[239 P.2d 895] Plumbers: $337 for the first year of service to $417 for the fifth year; carpenters: $303 to $375; laborers: $211-$273-$288.
At the trial, respondents objected to the introduction of any evidence on the grounds:
1. That none of the petitioners named was beneficially interested in the subject of the proceeding or in any relief sought by the petition;
2. That the petition failed to state a cause of action in mandamus against any of respondents, because it attempted to compel action in a matter left to their discretion.
The objection was sustained by the trial court. From the judgment which followed discharging the alternative writ, denying a peremptory writ of mandate, and dismissing the petition, petitioners appeal.
The questions presented for decision are:
1. Do petitioners have legal capacity to sue?
2. Does the petition state a cause of action in mandamus?
It is alleged that the city employs 26 plumbers out of a total of 2631 members of the United Association of Plumbers and Steamfitters; 250 carpenters of a total of 35,000 members of the Carpenters District Council of Los Angeles County; and 110 laborers of a total of 11,000 members of the Southern California District Council of Laborers; and that the Union is the 'collective bargaining representative of practically every craft of employee of the City of Los Angeles', including the above named unions.
As stated in Thomasson v. Jones, 68 Cal.App.2d 640, 642, 157 P.2d 655, 656, it is established law that 'A writ of mandate will not be granted unless it is necessary to protect a substantial right and upon a showing that substantial damages will be suffered by the petitioner if the writ is denied. Ault v. Council of City of San Rafael, 17 Cal.2d 415, 110 P.2d 379. The writ of mandate is to be issued only upon the application of the party beneficially interested. Code of Civil Procedure, sec. 1086. The writ will not issue when the petitioner has no direct interest in compelling the defendants to perform the function mentioned in the writ. Ellis v. Workman, 144 Cal. 113, 115, 77 P. 822.'
In the more recent case of Hollman v. Warren, 32 Cal.2d 351, 357, 196 P.2d 562, 566, where it was contended that petitioner was not a properly interested party, our supreme court held: 'Aside from her character as an applicant for appointment as a notary it is alleged that she is a resident and taxpayer of the City and County of San Francisco. As such she is interested in having a sufficient number of notaries commissioned to act therein. The rule applicable here is stated thus in 35 American Jurisprudence, [page] 73; section 320: '(B)y the preponderance of authority * * * where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced. * * *''
In Denver Building Trades Council v. Vail, 103 Colo. 364, 86 P.2d 267, 269, the petitioner, a voluntary association, was composed of twenty-three affiliated labor organizations the membership of which consisted of skilled and unskilled laborers engaged in the building and construction industry. The council sought to restrain the State Highway Engineer from opening certain highway construction bids on the ground that his invitation to submit the bids included what purported to be the prevailing rates of wages for the work required, but in fact were not the prevailing rates.
It was there contended that the petitioner council had no legal standing in court. The Supreme Court of Colorado held otherwise in the following language: 'It is conceded that the Trades Council seeks to be the mouthpiece for union labor in the particular lines of work to be involved in the proposed construction. No single workman who hopes or desires to be employed on one of these projects could be expected to go to the trouble and expense of bringing an action individually. In the light of the practical situation, and in view of the obvious intent of the General Assembly (that prevailing [239 P.2d 896] rates be stated in the invitation for bids and 'shall be included in proposals or bids for the work'), we hold that the Trades Council has a sufficient interest in the subject matter to enable it to institute the proceedings in the case at bar.'
In Board of Social Welfare v. County of Los Angeles, 27 Cal.2d 98, 100, 162 P.2d 627, 628, the same principle was recognized. It was there stated: 'We are therefore of the opinion that although such board may be without specific authority to directly order the issuance of a duplicate warrant by a county auditor * * * nevertheless the board is a 'party beneficially interested' in the issuance of such warrant, within the meaning of the provision of section 1086 of the Code of Civil Procedure that 'It (the writ of mandamus) must be issued upon the verified petition of the party beneficially interested' (see 16 Cal.Jur., §§ 53-56, pp. 850-856), and is a proper party to maintain mandamus proceedings against county officials who fail or refuse to issue a warrant to a needy aged person who is a member of a class entitled thereto. Persons who are members of such a class are ordinarily financially, and often physically, unable to maintain such proceedings on their own behalf, and to deny to them the assistance of the welfare board under such circumstances would tend to defeat the purpose of the legislation which seeks to provide for them during needy old age.'
As agent of its affiliated unions and the members thereof, Union is directly interested in having the provisions of the city charter enforced on behalf of such membership. Accordingly, it is a proper party to maintain the instant proceeding.
Section 425 of the city charter here under consideration directs that the council, in fixing the compensation to be paid to city employees, shall provide a salary or wage 'at least equal to the prevailing salary or wage for the same quality of service rendered to private persons, firms or corporations under similar employment, in case such prevailing salary or wage can be ascertained.' (Emphasis added.)
As stated in Leftridge v. City of Sacramento, 59 Cal.App.2d 516, 525, 139 P.2d 112, 117: 'Mandamus is a proper remedy to compel a city council or a city civil service board to perform its mandatory duties prescribed by the charter. McAlpine v. Baumgartner, 10 Cal.2d 409, 74 P.2d 753. In the present case the writ was properly issued to require the Civil Service Board to ascertain the prevailing scale of wages paid in the vicinity of Sacramento to employees performing the duties of the class of workmen to which the petitioners belong, pursuant to the provisions of Section 52 of the Charter. The writ, however, may not compel an officer or a board to perform the duties in a particular way. It will issue only to require the performance of ministerial duties. The exercise of discretion on the part of such officer or board will not be interfered with in that proceeding except for arbitrary disregard of the law or for flagrant abuse of discretion. Mosesian v. Parker, 44 Cal.App.2d 544, 548, 112 P.2d 705; Morales v. Ingels, 30 Cal.App.2d 182, 85 P.2d 907; 16 Cal.Jur. 809, § 28; 34 Am.Jur. 859, § 70.'
In construing section 425, supra, this court held in Allen v. Bowron, 64 Cal.App.2d 311, 313, 148 P.2d 673, 674:
'It is fundamental that a public officer may be compelled by mandate proceedings to perform an act which it is his legal duty to perform, but the court in such proceedings may not control the exercise of discretion on the part of the officer and may not substitute its own discretion for the discretion vested in the officer. A writ of mandate will not issue to force the exercise of discretion in a particular manner. Bank of Italy v. Johnson, 200 Cal. 1, 251 P. 784; Browning v. Dow, 60 Cal.App. 680, 213 P. 707; Inglin v. Hoppin, 156 Cal. 483, 105 P. 582.
'The fixing of the salaries of the many employees of a large city, especially in a period of great emergency when conditions are subject to frequent change, undoubtedly calls for the exercise of a wise discretion.' Section 425 does not say that the city shall pay the prevailing wage. Under the language employed, the city council must ascertain whether the services rendered the city are the same quality as those rendered [239 P.2d 897] in private employment; whether they are rendered under similar employment, and then fix salaries at least equal to the prevailing salaries, if such prevailing salaries can be ascertained.
The section does not establish a positive standard for fixing salaries of employees in the service of the city, but requires the exercise of sound judgment and discretion on the part of the members of the council in fixing salaries and wages which are at least equal to those prevailing in private employment.
In Adams v. Wolff, 84 Cal.App.2d 435, 437-438, 190 P.2d 665, cited by appellants, the sections of the Charter of San Francisco there in question prescribed an exact formula to be used by the Board of Supervisors in fixing salaries: i. e., certification to such Board by the Civil Service Commission that certain rates have become established and are generally prevailing in private employment, leaving nothing to the discretion of the Board but to fix the salaries accordingly.
The situation here presented does not involve the problem of classification of employees, and no arbitrary, capricious or wrongful act on the part of the council is alleged.
If the council had failed or neglected to act in the matter of fixing salaries, mandamus would lie to compel it to act. Such writ, however, may not compel the council to act in a particular manner. Leftridge v. Sacramento, supra. The record discloses that the council passed a salary ordinance effective as of January 30, 1951. It must be assumed that in so doing, the city council in the exercise of a sound discretion fixed wage rates that were at least equal to those paid in private employment.
For the reasons stated, the judgment is affirmed.
DORAN, J., concurs.
WHITE, Presiding Justice (dissenting).
I dissent. I am in accord with that part of the prevailing opinion which holds that petitioner is a proper party to maintain this proceeding, but I dissent from that portion of the opinion holding that the petition does not state a cause of action and affirming the judgment.
We are not here concerned with an appeal after trial in the mandamus proceeding, but are confronted with an appeal taken from a judgment which was ordered by the court upon the respondents' motion after their objection to the introduction of any evidence was sustained by the court. In other words, there was no trial.
Respondents contend that 'since this is a mandamus proceeding, the affirmative allegations of the answer are to be accepted as true * * *. And the negative allegations in the answer are also to be accepted as true, since they were not countervailed by any pleading or by any offer of proof by the appellant.'
Neither the code section relied upon nor the cases cited by respondents support them in this claim.
Section 1091 of the Code of Civil Procedure provides, not that uncontroverted or negative allegations of the answer are to be accepted as true upon consideration of an objection to the introduction of any evidence, but that 'On the trial, the applicant is not precluded by the answer from any valid objection to its sufficiency, and may countervail it by proof either in direct denial or by way of avoidance.' (Emphasis added.) While it is undoubtedly the rule, as urged by respondents, that the return is accepted as true unless controverted by the petitioner, the latter may countervail the allegations of the return on the trial. Here there was no trial, and the cases of Hunt v. Riverside, 31 Cal.2d 619, 623, 191 P.2d 426; Ertman v. Municipal Court, 68 Cal.App.2d 143, 150, 155 P.2d 908, 156 P.2d 940; Brown v. Superior Court, 10 Cal.App.2d 365, 368, 52 P.2d 256; Vanderbush v. Board of Public Works, 62 Cal.App. 771, 775, 217 P. 785, and Friedland v. Superior Court, 67 Cal.App.2d 619, 623, 155 P.2d 90, cited by respondents, are not in point. In the instant proceeding every effort was made by petitioner to put in his proof. Witnesses were in the courtroom, and it is conceded that a witness was on the stand ready to [239 P.2d 898] answer questions; but petitioner was not permitted to put on his proof or to proceed in accordance with section 1091 of the Code of Civil Procedure, because of respondents' objection that the petition failed to state a cause of action.
As was said by our Supreme Court in the recent case of City & County of San Francisco v. Superior Court, 38 Cal.2d 156, 238 P.2d 581, 586, a proceeding similar to the one at bar, 'The question whether compliance (with the charter provision) is sufficient for the purpose of establishing the validity of the wage scales when questioned by the employees can be decided only on the trial in the mandamus proceeding.' (Emphasis added.)
By the court's ruling herein, petitioner was denied a statutory right under section 1091 of the Code of Civil Procedure, to meet the objections of the answer if his petition stated a cause of action, and I am convinced it did.
Conceding the correctness of the holding in the majority opinion that the writ of mandamus may not be used to compel a city council, officer or board to perform their mandatory duties in a particular manner, it is elementary that the courts will interfere when the determination or action of the council, board or officer is fraudulent, or so palpably unreasonable or arbitrary as to indicate an abuse of discretion as a matter of law.
Section 425 of the City Chapter of Los Angeles provides in part that the council or other authority 'shall, in every instance, provide a salary or wage at least equal to the prevailing salary or wage for the same quality of service rendered to private persons, firms or corporations, under similar employment, in case such prevailing salary or wage can be ascertained.'
Petitioner alleged that in fixing the compensation to be paid to the members of the 'affiliated unions' classified as plumbers, carpenters and laborers, respondents 'made a survey in conjunction with the City Schools of Los Angeles, County of Los Angeles, and the Los Angeles City Housing Authority in March, 1950 of salaries and wages paid to persons under similar employment for the same quality of service rendered to private persons, firms or corporations; such survey included data obtained from employers in the Los Angeles area representing the major types of industry and business.' That in fixing the compensation to be paid the aforesaid city employees, respondents had available the foregoing data as revealed by their own survey, but nevertheless, * * * failed, neglected and refused to pay such prevailing salary or wages and refused to consider, or to take into consideration, such prevailing salary or wages in fixing the salaries or wages of the carpenters, laborers and plumbers as aforesaid.'
The petition, therefore, stated a cause of action, and it was error to sustain respondents' objection to the introduction of any evidence.
I would reverse the judgment.