On appeal from the Superior Court, Law Division, Mercer County.
Matthews, Morton I. Greenberg and Ashbey. The opinion of the court was delivered by Matthews, P.J.A.D.
[179 NJSuper Page 97] In 1972 plaintiff submitted a bid to defendant Hazlet Township Sewerage Authority for certain sewerage construction work. The work was funded partly by the Authority (64%) and partly by the Federal Department of Housing and Urban Development (36%). The bid submitted by plaintiff was calculated
using the federal prevailing wage rates rather than the higher state prevailing wage rates.
Plaintiff was awarded the contract and the project was completed in September 1973. Subsequently, defendant Horn, Acting Commissioner of the State Department of Labor and Industry, advised plaintiff that it had violated the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25 et seq. , by failing to pay the prevailing state wage rates, and that it owed 17 of its workmen a total of $12,026.80.
Plaintiff instituted this action seeking judgment declaring N.J.S.A. 34:10-2 and 34:11-1.1, which exempt federally-funded projects from the state prevailing wage law, to be applicable to plaintiff's contract with the sewerage authority. The complaint also sought indemnification from the sewerage authority in the event that the state wage rate was determined to be applicable.
The Commissioner counterclaimed for judgment on behalf of plaintiff's employees in the amount of $12,026.80.*fn1 Plaintiff filed a cross-claim against the sewerage authority seeking indemnification in the event that judgment was entered in the Commissioner's favor on his counterclaim.
Plaintiff moved for summary judgment and the Commissioner then brought a cross-motion for summary judgment on his counterclaim. The trial judge denied plaintiff's motion and granted the Commissioner's motion, ruling that N.J.S.A. 34:10-2 and 34:11-1.1 were impliedly repealed by N.J.S.A. 34:11-56.25 et seq. and thus were not applicable to plaintiff's contract with the sewerage authority. He based his ruling on several grounds: (1) N.J.S.A. 34:10-2 and 34:11-1.1 were expressly repealed by L. 1975, c. 394, § 1 and "were superseded by the New Jersey Prevailing Wage Act"; (2) N.J.S.A. 34:11-56.27, 56.28 and 56.30 "clearly supersede" N.J.S.A. 34:11-1, although the latter statute
was not expressly repealed at the time the act was passed; (3) the Commissioner interpreted the act to supersede N.J.S.A. 34:10-2 and 34:11-1.1, and since passage of the act in 1963 had directed personnel of the Office of Wage and Hour Compliance, Public Contracts Section, Department of Labor and Industry, to apply the act to all public contracts, including those funded by the Federal Government; and (4) the precise exceptions to the act, set forth in N.J.S.A. 34:11-56.26(4), (5), (7) and 56.27, lead to the inference "that these were to be the only exceptions and that there would be no exception for federally funded projects." He also ruled that N.J.S.A. 34:11-56.26(4), which in 1972 exempted municipalities with a population of less than 25,000 from the act, was not applicable since plaintiff had contracted not with the municipality*fn2 but with the sewerage authority, a separate entity. Accordingly, judgment was entered in the Commissioner's favor in the amount of $11,336.80.
In another proceeding, Judge Moore decided that the sewerage authority was not liable to plaintiff for indemnification of the amount of the wage deficiency. See 171 N.J. Super. 152 (Law Div. 1979).
Plaintiff contends that the Law Division judge erred in concluding that N.J.S.A. 34:10-2 and 34:11-1.1 were impliedly repealed by the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25 et seq., L. 1963, c. 150, §§ 1 to 22.
N.J.S.A. 34:11-1, L. 1931, c. 243, § 1 provided:
Every contract in excess of five thousand dollars in amount, to which the state or any political subdivision is a party, which requires or involves the employment of laborers or mechanics in the construction, alteration, or repair of any public buildings of the state or any political subdivision thereof within the geographical limits of the state shall provide that the rate of wages for all laborers and mechanics employed by the contractor or ...