Roland Electrical Co. v. Mayor of Baltimore

Brune, C. J., delivered the opinion of the Court. The appeals in these two cases, which were tried together in the Circuit Court of Baltimore City and were argued together in this Court, are from decrees which in each case upheld the validity of the prevailing wage ordinance of Baltimore City and of wage scales promulgated thereunder. In addition, the decree appealed from in No. 153 upheld the rejection by the City of a bid, or (as The Roland Electrical Company, an appellant, claims) the repudiation of a contract, for electrical wiring and fixtures in one of the City schools. The latter controversy grew out of the prevailing wage ordinance. ⁴⁰⁰ The principal attacks are directed against Chapter 653 of the Acts of the General Assembly of 1945, (usually referred to below as “Chapter 653”) which constitutes subsection 4 of Section 6 of the Charter of Baltimore City (1946 Revision) and Ordinance No. 225 of the Mayor and City Council of Baltimore (“the City”) approved July 3, 1945, which purports to be based upon Chapter 653, and the wage scales adopted by the Board of Estimates which, in turn, rest for support upon Ordinance No. 225, the Prevailing Wage Ordinance, which is usually referred to below either by the name or, more briefly, simply as “the Ordinance”.

Chapter 653 added a new power to those previously granted to the City. Under it, the General Assembly expressly authorized the City “To provide by ordinance for incorporating in any and all contracts made by the * * * City * * *, or on its behalf, with any person, firm or corporation for the performance of any work, labor or services for said municipal corporation, the maximum number of hours which shall constitute a day’s work for, and the minimum rate of wages or salaries to be paid to any and all classes of, employees of contractors and sub-contractors performing any kind of work, labor or services for said municipal corporation while such employees are engaged or employed in the performance of such work, labor or services, and for penalties to be imposed on such contractors or sub-contractors failing to comply with any and all hour and wage provisions contained in any such contract in which they are interested; and by ordinance to empower the Board of Estimates of said municipal corporation to exercise any and all the power and authority herein granted to said municipality and make any and all rules and regulations and do any and all things, from time to time, that may be necessary or proper to put into operation and effect any and all of the aforegoing provisions.” Chapter 653- also repealed prior inconsistent laws and carried a separability clause. The Prevailing Wage Ordinance undertakes to exercise the authority conferred by Chapter 653. Section 1 provides that “each and every contract” made by or on behalf of the City “for the construction, reconstruction, ⁴⁰¹ * * * installation, alteration, repair, maintenance, * * * grading, paving, repaving * * * excavation or any other operation or work to be done or performed in, on, upon or in connection with any building, bridge, viaduct, tunnel * * * or other structure, airport, land, highway, pier, * * * sewer, drain, main, conduit, machinery or mechanical, electrical or other equipment for said municipality shall contain or provide that: * * Then follow seven sub-sections, lettered from (a) to (g) which contain the required provisions, which we quote or summarize below.

They are that: (a) Eight hours shall constitute a day’s work for all laborers, workmen or mechanics, except in time of war or other emergency, and that (subject to like exceptions) no contractor or sub-contractor shall require or permit any such employees to work more than eight hours a day; (b) If any such employee does work over eight hours a day in an emergency, he “shall be paid not less than the minimum wage rate fixed in the contract for working overtime” for each hour in excess of eight, or fraction thereof. “(c) A schedule of minimum hourly wage rates, including those for working on Sundays, legal holidays or more than eight * * * hours in any one calendar day, established by the Board of Estimates as hereinafter provided, to be paid to all classes of laborers, workmen or mechanics needed on the project to execute the contract;” “(d) The contractor and any and all of his subcontractors shall pay not less than the minimum hourly wage rates fixed by the schedule of such wage rates forming a part of the contract * * * to all laborers, workmen and mechanics directly employed by him or them * * * on the project;” (e) The contractor and sub-contractors shall keep records giving the names and occupations of laborers, workmen and mechanics employed by them on the project, and of the hourly wages paid to ⁴⁰² them; and such records shall be open to inspection by the City; (f) The contractor and sub-contractors shall keep posted a complete schedule of all minimum hourly wage rates paid and to be paid on the project; (g) If the contractor or any of his sub-contractors fails to comply with any of the provisions of subsections (a) (b) or (d), the contractor shall forfeit to the City $10.00 a day for each employee affected by such failure; and in addition, if the contractor or any of his sub-contractors fails to comply with any of the provisions of sub-sections (e) or (f), the contractor shall forfeit to the City $10.00 a day for each day that he or any of his subcontractors shall so fail. Section 2 of the Ordinance provides “That the Board of Estimates * * * is * * * authorized and empowered to adopt, establish, repeal, modify, change or amend, from time to time, schedules of minimum hourly wage rates to be paid to any and all classes of laborers, workmen or mechanics directly employed by any contractor or any sub-contractor on any of the various types of work or projects mentioned in, or comtemplated by, Section 1 of this ordinance; provided, however, that such schedules of minimum hourly wage rates, including wage rates for working on Sundays, legal holidays or overtime, shall not be less in amount than the general prevailing hourly wage rates being paid to laborers, workmen and mechanics on the basis of eight (8) hours constituting a day’s work or for working on Sundays, legal holidays or overtime, as the case may be, for doing work of a similar character in the locality in which the project is located; and such general prevailing hourly wage rates shall be determined by the Board of Estimates whose decision in the matter shall be final.” Section 3 of the Ordinance authorizes the Board to make any and all rules and regulations and to take any other action “necessary or proper to put into operation and effect any and all of the provisions of this ordinance.” Section 4 provides that in case of conflict between the ⁴⁰³ Ordinance, or any rule, regulation or wage scale established thereunder and any provision, minimum wage rate or rule contained in, or contemplated by, any agreement between the City and the Federal Government, or any agency thereof, then the provision, minimum wage rate or rule contained in such agreement shall control. Section 5 exempts existing contracts and others entered into pursuant to invitations for bids issued prior to October 1, 1945. Section 6 repeals any and all inconsistent prior laws and ordinances to the extent of any inconsistency, and Section 7 contains separability provisions in comprehensive form.

Section 8 bars the revival of any law previously repealed by any repeal contained in this Ordinance, and contains a saving clause as to rights accrued and liabilities (including penalties and punishments) incurred under any law repealed by this Ordinance. THE TITLE OF THE ORDINANCE One of the appellants’ grounds of attack upon the Ordinance is the alleged deficiency of its title. This is based upon the fact that the title does not specifically refer to the exception contained in Section 4. The same rules which govern the validity of the title of Acts of the General Assembly also govern the validity of the titles of Baltimore City ordinances.

See Constitution of Maryland, Article 3, Sec. 29 and Baltimore City Charter (1946); Everstine, Legislative Titles, 9 Md. Law Rev. 197, at 244, and cases cited in note 137. The appellants rely upon Nutwell v. Anne Arundel Co., 110 Md. 667 , 73 A. 710 , in which the title of an act indicated that all owners of vehicles using the public streets or roads were to be required to have licenses therefor, but the body of the Act exempted numerous kinds of vehicles and granted an exemption from other taxes on vehicles for which a license was required. The title was held misleading and invalid because of each of these departures of the body of the Act from what the title indicated. It is interesting to note that the Act also purported to grant ⁴⁰⁴ reciprocal exemptions to holders of County licenses and to the holders of similar licenses issued by the City of Annapolis.

This exception is not mentioned in the opinion and therefore would not seem to have been even suggested as a ground of invalidity of the title. We find nothing misleading in the title of the Ordinance here under attack. Certainly the mere existence of an exception would not make it so. See Mt.

Vernon Co. v. Frankfort Co., 111 Md. 561 , 75 A. 105 , in which the title of an Act amending a provision of the Code of Public General Laws made no reference to the fact that the body of the Act exempted certain counties from its operation. In the present case the first few lines of the title show that the Ordinance is not intended to be all-inclusive by describing it as “An ordinance providing that certain contracts of the Mayor and City Council of Baltimore shall contain provisions relative to the number of hours constituting a day’s work for, and the minimum rate of wages to be paid to, certain employees of contractors and sub-contractors * * (Italics ours.) “Certain”, though not infrequently of rather indefinite significance, surely does not mean “all”. Even if there were any apparent defect in the title of the Ordinance, we note that since its enactment the Ordinance has been included in the Baltimore City Code of 1950 as Sections 14-21, inclusive, of Article 1. Any deficiency in the title would thereby have been cured.

Jones v. State, 207 Md. 481 , 115 A. 2d 273 , and cases therein cited. We find the appellants’ contention that the Ordinance is invalid because of a defective title is not tenable. DELEGATION OF POWER The appellants assert that there is an unlawful delegation of power to the Board of Estimates to fix minimum wages and they attack the validity of the wage scales adopted by the Board. In support of their attack on the delegation of power, they assert (a) that Chapter 653 and the Ordinance attempt to delegate legislative power to an administrative board in contravention of Article XI-A of the Maryland Constitution, and (b) that, even if that attack fails, the attempted ⁴⁰⁵ delegation of power involves a denial of due process and of the equal protection of the laws because sufficient guides and standards are not established and because the statute and ordinance are too vague and indefinite.

Reading Chapter 653 and the Prevailing Wage Ordinance together, we see that the Board of Estimates is given considerable administrative power, but we think that there is no actual delegation of legislative power. The establishment of minimum wage rates on City contracts has been authorized by the State Legislature and the determination to establish such rates has been made by the City’s legislative body, the City Council. The Board of Estimates has been directed by the Ordinance to do two things: (1) to incorporate certain terms in City contracts, among which terms are those relating to hours and minimum wages; and (2) to determine the general prevailing hourly wage rates in the locality in which any project is located for work of a similar character. The minimum wage scale included in the contract must not be less than that found by the Board to be the prevailing wage scale in the locality.

The Board has made its findings and has established minimum wage scales at what it finds to be the general prevailing hourly wage rates. It has not gone above the rates so found. As was said in Weer v. Page, 155 Md. 86, at p. 92 , 141 A. 518, at p. 520 , “It is competent for the State to impose upon administrative officers the duty of ascertaining specific facts upon which a prescribed application of the police power is made to depend.” A number of cases are cited in support of this statement, among them Tighe v. Osborne, 150 Md. 452 , 133 A. 465 , in which the Court said: “* * * we have turned more and more to the plan of providing in our laws and ordinances general rules and standards, and leaving to administrative boards and agencies the task of acquiring information, working out the details, and applying these rules and standards to specific cases. This is not considered a delegation of legislative authority, though it probably does represent an expansion of administrative power.” For more recent applications of like views, see such cases as Petrushansky v. State, 182 Md. 164 , 32 A. 2d ⁴⁰⁶ 696; Givner v. Commissioner of Health, 207 Md. 184, 113 A. 2d 899 , and cases therein cited.

Since the Board of Estimates is not shown to have prescribed minimum wages in excess of those which it found to be the prevailing wages, we are not confronted by any problem as to whether it might have adopted a higher scale and, if so, how much higher. On the facts of this case we find no delegation of legislative power to the Board of Estimates and no exercise of power by the Board in excess of that which Chapter 653 and the Ordinance purport to authorize. The appropriateness of administrative action to adapt the City’s scale to changing conditions could hardly have been better stated than by Mr. Holland, one of the appellants’ witnesses and formerly the Chief Engineer of the City, who testified on cross-examination that wages “change almost every week.” ALLEGED LACK OF STANDARDS AND INDEFINITENESS The appellants’ attack based upon the alleged lack of standards and guides by which the Board of Estimates is to be governed is, we think, untenable. In Ruark v. Engineers’ Union, 157 Md. 576, 146 A. 797 , the validity of Chapter 94 of the Acts of 1910 was under attack.

That statute, a public local law applicable to Baltimore City, was similar to the Ordinance with which we are now concerned. Its provisions as to eight hours constituting a day’s work on City contracts were almost identical with those of the Ordinance. A proviso with regard to the amount of wages was that they should not be less than the “current rate of per diem wages in the locality where the work is performed * * * in the execution of any contract or contracts in any public work within the City of Baltimore.” We see no substantial difference between the provisions as to “locality” in the statute involved in the Ruark Case and those in the Ordinance now before us. It is true, as the appellants say, that the Ordinance would -apply to work on one of the City reservoirs or at the municipal airport, which ⁴⁰⁷ are outside of the corporate limits of Baltimore City.

All of these are within approximately twenty miles of the City Hall, and some are much closer. We think that it would be an undue refinement to insist that “locality” must be so narrowly construed as to cover only the area within the City limits and to exclude nearby City-owned property. There is no showing that conditions are so different at one of the “remote” reservoirs as to cause a different wage scale to prevail there. If there were, that might call for the application of the saving clauses of both the statute and the Ordinance; but no such question is before us and there is no occasion to decide it.

In the Ruark Case, the Court held that the word “ ‘locality’ defines a region, with the public undertaking as an axis or focal point, throughout which region the daily wage of the particular class to which the worker belongs is