Page ____ Cal.App.2d __ 222 P.2d 27 STATE v. BROTHERHOOD OF RAILROAD TRAINMEN et al. Civ. 14284. California Court of Appeals, First District, Second Division Sept. 18, 1950.
Subsequent opinion 232 P.2d 857.
[222 P.2d 29] Fred N. Howser, Attorney General, Herbert E. Wenig, Deputy Attorney General, for appellant.
Clifton Hildebrand, Oakland, for respondent.
James H. Phillips, Sacramento, for intervenor.
The State sued under § 1060, Code of Civil Procedure, for a declaration of its rights and duties under a contract entered into on September 1, 1942 by the Board of State Harbor Commissioners with the defendant Brotherhoods respecting the rates of pay, rules, and working conditions affecting certain employees of the State Belt Railroad. From a judgment in favor of the defendants this appeal was taken on an agreed statement under rule 6a.
The State Belt Railroad is owned by the State of California, and its management, control and operation have always been committed by statute to the Harbor Board. The Railroad operates on the waterfront of San Francisco and its functions and the scope of its activities are fully described in several decisions, including Sherman et al. v. United States, 282 U.S. 25, 51 S.Ct. 41, 75 L.Ed. 143; United States v. State of California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567, and Maurice v. State of California, 43 Cal.App.2d 270, 110 P.2d 706. The Railroad has between 125 and 225 employees, depending on the volume of business on hand, and the Harbor Board has approximately 425 other employees engaged in its other harbor activities at San Francisco.
The principal question presented is whether the Railroad is subject to the provisions of the Federal Railway Labor Act, 45 U.S.C.A. § 151 et seq. Section 152 thereof provides that 'It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.' Other questions in the case are whether, if the Railroad is subject to the Act, the duty of representing it in making and maintaining such agreements is that of the Harbor Board or of the State Personnel Board, and whether such agreements must be approved by the State Department of Finance. The appellant claims that state statutes on these subjects are conflicting.
[222 P.2d 30] The contract in question was negotiated and signed by the Harbor Board, and neither the Personnel Board nor the Department of Finance had any hand in it.
The case of United States v. State of California, supra, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567, is decisive of the main question. That case arose out of a violation by the same State Belt Railroad, of the Federal Safety Appliance Act, 45 U.S.C.A. ch. I, § 6. The United States sued the State for a $100 penalty for the violation; the State resisted payment on the ground that the Belt Railroad was not subject to the Act; the District Court held that it was. The Circuit Court of Appeals reversed, 75 F.2d 41, on a jurisdictional ground, but the Supreme Court reversed the latter court. In holding that the Railroad was an interstate carrier the Supreme Court said that 'California, by engaging in interstate commerce by rail, has subjected itself to the commerce power, and is liable for a violation of the Safety Appliance Act, as are other carriers, unless the statute is to be deemed inapplicable to state-owned railroads because it does not specifically mention them. * * * The danger to be apprehended is as great and commerce may be equally impeded whether the defective appliance is used on a railroad which is state-owned or privately-owned. No convincing reason is advanced why interstate commerce and persons and property concerned in it should not receive the protection of the act whenever a state, as well as a privately-owned carrier, brings itself within the sweep of the statute, or why its all-embracing language should not be deemed to afford that protection.' [297 U.S. 175, 56 S.Ct. 424.]
In answer to the argument that California in operating the Belt Railroad was performing a public function in its sovereign capacity hence could not constitutionally be subjected to the provisions of the federal act, the court said: 'Despite reliance upon the point both by the government and the state, we think it unimportant to say whether the state conducts its railroad in its 'sovereign' or in its 'private' capacity. That in operating its railroad it is acting within a power reserved to the states cannot be doubted. [Citations.] The only question we need consider is whether the exercise of that power, in whatever capacity, must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution. * * *'
The sovereignty question was later set at rest by our own Supreme Court in People v. Superior Court, 29 Cal.2d 754, 763, 178 P.2d 1, 6, where it said that 'The fact that the service is conducted for the benefit of commerce and without profit is insufficient to take it out of what otherwise would be an industrial and commercial character.'
Maurice v. State of California, supra, 43 Cal.App.2d 270, 110 P.2d 706, followed United States v. California, supra, in holding that the State Belt Railroad was subject to the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq. It held also that it was likewise subject to the Federal Employers' Liability Act, 45 U.S.C.A. ch. II, § 51 et seq.
In United States v. California, supra, the court said that the State Belt Railroad's service did 'not differ in any salient feature from that which this Court, in United States v. Brooklyn Terminal, supra, 249 U.S. 296, 304, 305, 39 S.Ct. 283, 63 L.Ed. 613, 6 A.L.R. 527, held to be common carriage by rail in interstate commerce within the meaning of the Federal Hours of Service Act', 45 U.S.C.A. § 61. The analogy just drawn forecasts what the holding would be if the State Belt Railroad's status should come before that court under the latter Act.
The source of the Federal Safety Appliance Act, the Federal Employers' Liability Act, the Federal Carriers' Taxing Act and the Federal Hours of Service Act is the commerce clause and that, too, is the source of the Railway Labor Act. If the State Belt Railroad is within the purview of all [222 P.2d 31] those pieces of interstate legislation it is certainly subject to the Railway Labor Act.
In United States v. California, supra, the court attached no importance to the fact that the Safety Appliance Act was silent as to its applicability to states or state-owned carriers. In several places in the opinion that subject is mentioned and discounted, hence appellant's argument that Congress could not have intended the Railway Labor Act to apply to states or state-owned railroads, is not persuasive despite the citation of four statutes where Congress took pains to expressly exclude states.
Under the authorities it must be held that the State Belt Railroad is subject to the Federal Railway Labor Act and that in dealing with its employees who are themselves within that act the State of California is bound to deal on the same basis and in the same way as would a privately-owned carrier. If, as a consequence, some action or other of the Harbor Board in connection with the contract should collide with some conflicting provision of state law, there simply would be nothing the Board could do about it but follow the course of conduct dictated or called for by the Railway Labor Act, wheresoever that might lead, since the latter act is 'the supreme Law of the Land'. Const. Art. VI. It is the plain duty of this and every other state court in such cases to see that the supremacy clause is obeyed.
The State next contends that 'the Harbor Board did not have and does not have authority to collectively bargain or to make a collective bargaining contract providing for rates of pay and working conditions in conflict with state civil service laws.'
Section 1705 reads: '* * * The [Harbor] board shall fix the compensation of its officers and employees other than the commissioners.' When the contract was made in 1942 the section read substantially the same.
Section 18004 reads: 'Unless the Legislature specifically provides that approval of the Department of Finance is not required, whenever any State agency or court fixes the salary or compensation of an employee or officer, which salary is payable in whole or in part out of State funds, the salary is subject to the approval of the Department of Finance before it becomes effective and payable * * *.' When the contract was made in 1942 this was § 675.1, Pol.Code, which read substantially the same.
These doubts as to the agency wherein the contractual authority resides and this apparent conflict in legislation, call for an inquiry into the Harbor Board's powers and jurisdiction.
We shall not attempt to give a complete chronological history of the legislation relating to the Harbor Board, but merely enough of it to show that such part thereof as bears on the present problems has followed one definite and uniform pattern with singular consistency for almost nine decades.
By an act of the legislature approved April 24, 1863, the Board of State Harbor Commissioners was created, and called by that name. Stats.1863, p. 406. It is so named today.
The act of 1863 provided for three commissioners and the board is still composed of three commissioners.
The act of 1863 directed that the commissioners should take possession of and hold all that portion of the Bay of San Francisco lying along the water front and for the distance of 600 feet into the waters of the bay. The jurisdiction of the Board so vested has never been narrowed but has been materially enlarged. The section dealing with the Board's jurisdiction became § 2524, Pol.Code, and eventually found its way into several sections of the Harbors and Navigation Code.
The same act of 1863 provided in § 12 that 'No contract or obligation entered into by the Commissioners under this Act, which creates a liability, or authorizes the payment of money, shall be valid and of binding force unless the same shall be signed by all three of said Commissioners, and countersigned by the Secretary of the [222 P.2d 32] Board * * *.' This became § 2527, Pol.Code, then § 1990, H. & N. Code, which reads substantially the same today as did the Act of 1863.
As early as 1876, § 2524, Pol.Code, provided that 'The commissioners shall have power to make reasonable rules and regulations concerning the control and management of the property of the state, which is intrusted to them by virtue of this article * * *.' Section 1900, H. & N.Code, now reads substantially the same.
Sixty-one years ago § 2552, Pol.Code, was amended, Stats.1889, p. 388, to fix the salaries of the president of the board, the other two commissioners, other officers and certain employees. It also provided that 'The Board must fix the compensation of the other employees.' When & 1705, H. & N.Code, was enacted in 1937, it contained substantially the same provision. In 1945 § 1705 was amended and now reads: '* * * The board shall fix the compensation of its officers and employees other than the commissioners.'
In 1889 the legislature adopted 'An Act to authorize the Board of State Harbor Commissioners to construct railroads over State lands, and lands within their jurisdiction, along the exterior waterfront line of the City and County of San Francisco, and to regulate the use of the same.' Stats.1889, p. 388. This apparently was the birth of the State Belt Railroad. In 1913 the board's powers were enlarged with respect to the 'state railroad', Stats.1913, p. 383, and in 1937, § 3150, H. & N.Code, restated those powers.
The foregoing sketch suffices to show that the Harbor Board legislation is special in its very nature and character. However, authority is not wanting, for in Bateman v. Colgan, Controller, 111 Cal. 580, 585, 44 P. 238, 240, the court, speaking of § 2524, Pol.Code, which as we have just seen dealt with the Harbor Board's jurisdiction, said: 'section 2524 is a part of a special act, applicable to one particular board'. The Bateman case held that the Harbor Board, in contracting for the construction of the Ferry Building in San Francisco, correctly resorted to the legal machinery provided by its own legislation, § 2524, in apparent disregard of the provisions of a statute called the 'Public Buildings Act'. The force of Bateman v. Colgan in its applicability to the instant case is manifest when it is pointed out that the 'Public Buildings Act' required 'the plans, estimates, etc., to be submitted for approval to the governor, treasurer, and secretary of state, and the contracts thereunder to be certified by the attorney general, before commencing construction.' Despite these clear requirements the Harbor Board went ahead under its own contract-making powers as prescribed in § 2524, without submitting anything to the four officials named in the other statute. In upholding the Board's action the court, discussing the two statutes and the dates of their adoption, said, 111 Cal. 586, 44 P. 240: 'It is not pretended that there is any express repeal, and it is an established rule of construction that the law does not favor a repeal by implication, but that, where there are two provisions relating to the same subject-matter, they must, if possible, be construed so as to maintain the integrity of both. And, where two statutes treat of the same subject, one being special and the other general, unless they are irreconcilably inconsistent, the latter, although latest in date, will not be held to have repealed the former, but the special act will prevail in its application to the subject-matter so far as coming within its particular provisions.'
The rule (see 23 Cal.Jur. pp. 706-709) is well settled and has been repeatedly applied, two recent cases being In re Shull, 23 Cal.2d 745, 146 P.2d 417, and Division of Labor Law Enforcement v. Moroney, 28 Cal.2d 344, 170 P.2d 3.
In the instant case the contract of 1942 was negotiated and signed by the Harbor Board without any approval by the Department of Finance, and despite the provisions of § 675.1, Pol.Code, now § 18004, Gov.Code. It was made under the authority and within the framework of the Harbor Board's own legislation. The parallel is perfect between this and the Bateman case since in both instances the apparently conflicting legislation required the approval of other state officers. On [222 P.2d 33] the authority of that case, and others like it dealing with conflicts between general and special acts, we must hold that the provisions of § 675.1, now § 18004, being statewide and general in their scope, do not touch or affect compensation fixed by the Harbor Board for its employees under the special provisions of the Harbor Board legislation as a whole, and of § 1705 in particular.
Bateman v. Colgan happens, incidentally, to state another familiar rule, namely, that 'where power is given to perform an act, the authority to employ all necessary means to accomplish the end is always one of the implications of the law * * *.' Section 3150, Harbors and Navigation Code, gives the Board authority to maintain and operate the State Belt Railroad. A railroad cannot be maintained or operated without hands, and hands have to be paid. Section 1705 expressly provides that the board shall fix their compensation. Certainly, then, the power to maintain and operate the railroad and to fix the compensation of its employees carries with it the authority to negotiate contracts which fix the rates of such compensation.
The vesting of these powers in the Harbor Board necessarily excludes the exercise of the same powers by the State Personnel Board, the Department of Finance, or any other state agency. Again, see the Bateman case, supra, 111 Cal. at page 583, 44 P. at page 239, holding that the Harbor Board is vested with the 'control and management exclusively, with certain exceptions not pertinent here, in said harbor commissioners.'
Appellant's contention that the power to enter into agreements respecting wages, hours and working conditions of Belt Railroad employees resides in the State Personnel Board, not the Harbor Board, is set at rest by the failure of the Civil Service Act to vest in the Personnel Board and such power either expressly or by implication. That Board has purely administrative functions. It and its executive officer are charged with the duty of administering the Civil Service Act throughout the State. It is vested with no powers of management or operation such as those expressly vested in the Harbor Board.
Moreover, the Harbor Board has always had broad contract-making powers, while those of the Personnel Board are extremely narrow and limited. Appellant has directed our attention to none, and the only ones we have found are in §§ 18706, 18707, Gov.Code, which relate to agreements with personnel agencies in other jurisdictions, political subdivisions, State agencies excepted from State civil service, counties, cities, districts and other subdivisions of the State--all of which might be said to be inter-departmental.
The remaining problems relate to provisions of state law which are seemingly inconsistent with the contract.
In 1934 Article XXIV dealing with State Civil Service was added to the State Constitution. Section 1 provides that 'Permanent appointments and promotion in the State Civil Service shall be made exclusively under a general system based upon merit, efficiency and fitness as ascertained by competitive examination.' Section 2 creates the State Personnel Board and § 3 vests it with all 'the powers, duties, purposes, functions and jurisdiction' formerly vested in any State officer or agency under the old 1913 Civil Service law. Section 4 provides that State civil service shall include every officer and employee of the State, with fourteen specified exceptions, but the employees of the Belt Railroad are not among them.
In pursuance of those constitutional provisions the legislature in 1937 adopted the present Civil Service Act which replaced the Act of 1913. The new act, Stats.1937, p. 2085, has been codified in §§ 18500 to 19765 of the Government Code. Stats.1945, p. 539.
Appellants draw attention to seven of the principal conflicts apparently existing between our Civil Service Act and the contract of September 1, 1942. The first of these is with respect to rates of pay and overtime. Section 18850, Gov.Code, provides that 'The [Personnel] board shall establish and adjust salary ranges for each class of position in the State civil service. [222 P.2d 34] * * *' Since Belt Railroad employees are civil service employees the language of § 18850 would be broad enough to include them but for § 1705, H. & N.Code, supra. We have already seen, in discussing § 18004, Gov.Code, ex. 675.1, Pol.Code, that one law is general and the other special. So it is with respect to § 18850. That section does not control § 1705, H. & N.Code, for that section, which is a special law, exclusively governs the fixing of compensation for Harbor Board employees. It follows that there is no conflict between § 18850 and the contract executed pursuant to the Railway Labor Act, or the Act itself.
The other six instances are: (1) dismissals, demotions and suspensions; (2) sick leaves; (3) leaves of absence; (4) promotions; (5) lay-offs, and (6) duration or emergency employees.
Granting that the Civil Service Act contains provisions in conflict with the contract of September 1, 1942, still nothing will be gained by making a detailed comparison of these differences since there are from 125 to 225 employees affected by the contract and it may be safely assumed that the civil service status of the members of such a large group will present perhaps as many variations as there are railroad men. Moreover, there is not in this record sufficient detailed information to show how the various employees are affected either individually or by groups. For these reasons we deem it not only prudent but fairer to the employees to refrain from saying anything (beyond what we have already said) which might be invoked later on if and when specific problems arise in individual disputes.
It is perfectly clear that the Railway Labor Act does not so pre-empt the field of regulation of working conditions as to entirely foreclose state action respecting carriers within that Act unless Congress has occupied the field in question to the exclusion of such state action, Terminal Railroad Association of St. Louis v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 63 S.Ct. 420, 87 L.Ed. 571; see, also, People of the State of California v. Thompson, 313 U.S. 109, 61 S.Ct. 930, 85 L.Ed. 1219. In the Terminal case the court said: 'The Railway Labor Act, like the National Labor Relations Act [29 U.S.C.A. § 151 et seq.], does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them. The national interest expressed by those Acts is not primarily in the working conditions as such. So far as the Act itself is concerned these conditions may be as bad as the employees will tolerate or be made as good as they can bargain for. The Act does not fix and does not authorize anyone to fix generally applicable standards for working conditions. The federal interest that is fostered is to see that disagreement about conditions does not reach the point of interfering with interstate commerce.' [318 U.S. 1, 63 S.Ct. 423.] While that case deals with working conditions, the rule must be the same with respect to such questions as the six instanced by appellant.
It would seem, therefore, that there is still an open field wherein civil service provisions for the benefit of State employees may coexist with such a contract as that of September 1, 1942, without colliding with it or with the paramount federal legislation under which it was made. Indeed it appears that the contract in question contains several provisions dove-tailing it with the State Civil Service Act and giving the Personnel Board certain functions.
We are satisfied that the contract of September 1, 1942 is valid and binding. We are satisfied, also, that we have answered all the other questions propounded in this case, both by the appellant and the intervenor.
Appellant contends that 'the trial court failed to adequately deal with the submitted question concerning the validity of the present contract', in that the holding that the contract is valid is inferentially contradicted by two of the conclusions of law.
The first conclusion (numbered III) is 'That in negotiating increases in rates of pay the Board * * * is acting as an agent of the State, * * * and of necessity must confer and counsel with the State [222 P.2d 35] Personnel Board and State Department of Finance, and any agreement reached with the employees must in proper cases be subject to the approval of both these agencies.'
We have held that the power and authority of the Harbor Board was and is exclusive and independent of both the Personnel Board and the Department of Finance. If that holding is correct, then the emphasized portion of the conclusion is not consistent therewith.
The second conclusion (numbered IV) is 'That the Board * * * and its president should represent the State in negotiating with the employees working on the State Belt Railroad. Of course, it must counsel and confer with the State Personnel Board and the State Department of Finance, and ultimately the resulting agreement must be such an agreement that meets with the approval of these agencies.'
For the reasons just stated, the emphasized portion of the latter conclusion is likewise subject to the same criticism.
Accordingly, under the power granted by § 956a, Code Civ.Proc., we are rewriting the first conclusion to read:
'That in negotiating under the Railway Labor Act respecting rates of compensation for employees of the State Belt Railroad the Board of State Harbor Commissioners was and is acting as the agent of the State of California, and was and is the only agent or agency of said State authorized and empowered to so act. That in negotiating, making, maintaining and performing all contracts respecting the compensation of said employees said Board is not required by law to confer or counsel with the State Personnel Board or the State Department of Finance, and the contract or contracts so negotiated and entered into, and the rates of compensation so fixed by said Board of State Harbor Commissioners are not in any case subject to the approval of said Personnel Board and said Department of Finance, or either of them.'
We are also rewriting the second conclusion to read:
'That the Board of State Harbor Commissioners and its President should represent the State in negotiating with the employees working on the State Belt Railroad.'
With the conclusions of law modified in the foregoing respects the judgment is affirmed.
NOURSE, P. J., and DOOLING, J., concur.