State v. Antonich

THOMAS, Chief Justice,

specially concurring.

I am in complete accord with the result reached by the majority in this case, but I have a concern about the adequacy of the record to support the nexus between the evil of “a qualified Wyoming worker’s remaining unemployed while a nonresident goes to work on a government-funded construction project” and the statute in question. I agree that that is a possibility, but the record does not demonstrate it. The statutory language simply makes the state employment offices a repository of information, and does not limit the “list of laborers, classified by skills, who are residents” to the unemployed. It simply requires that they be “available for employment.”

I am satisfied that on the basis of existing precedent the role of the State in connection with “constructing, reconstructing, improving, enlarging, altering or repairing any public works project or improvement for the state or any political subdivision, municipal corporation or other governmental unit” is that of a market participant pursuing essentially a proprietary function. It is inappropriate to invoke the Privileges and Immunities Clause to inhibit the State in that regard. Both Hicklin v. Orbeck, 437 U.S. 518 , 98 S.Ct. 2482 , 57 L.Ed.2d 397 (1978), and United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden, — U.S. -, *65 104 S.Ct. 1020 , 79 L.Ed.2d 249 (1984), recognize that the proprietary interest of the State in the property with which the statute deals is often a crucial factor in determining whether a discriminatory statute against non-citizens violates the Privileges and Immunities Clause. I perceive that, without articulating such a concept, the Supreme Court of the United States has preserved a delicate balance between the Reservation of Powers Clause found in Amendment X to the Constitution of the United States of America and the Privileges and Immunities Clause. The line that is drawn is that between the governmental function of the State and the right of the State to participate in the marketplace, satisfy its proprietary functions, and contract freely with those with whom it chooses to contract.

In Hicklin v. Orbeck, supra, at 437 U.S. 531 , 98 S.Ct. at 2490 , the Supreme Court recognized what it described as a mutually reinforcing relationship between the Privileges and Immunities Clause of Art. IV, § 2, and the Commerce Clause, which it said stems from their origin in the Fourth Article of the Articles of Confederation. In Reeves, Inc. v. Stake, 447 U.S. 429 , 100 S.Ct. 2271 , 65 L.Ed.2d 244 (1980), the Court said:

“ * * * The State’s refusal to sell to buyers other than South Dakotans is ‘protectionist’ only in the sense that it limits benefits generated by a state program to those who fund the state treasury and whom the State was created to serve. * * Such policies, while perhaps ‘protectionist’ in a loose sense, reflect the essential and patently unobjectionable purpose of state government — to serve the citizens of the State.”

Conceding that the Court there was dealing with the application of the Commerce Clause, because of the mutually reinforcing relationship between the two clauses I find that concept applicable in this instance with respect to the Privileges and Immunities Clause.

It cannot be held objectionable for a sovereign state to adopt legislation which provides in essence that to the extent possible public works contracts benefit the citizens of the state whose contributions to the public treasury fund those projects. A state should not be foreclosed by the invocation of the Constitution of the United States of America from loyalty to interests of its own citizens. So long as a statute is narrowly drawn to protect only the right of the state to contract as it sees fit with respect to expenditures for public works projects which it owns and which it funds, I am satisfied that as a matter of law such a statute does not offend the Privileges and Immunities Clause found in Art. IV, § 2 of the Constitution of the United States of America. This, of course, makes it unnecessary for the court to pursue the remand technique invoked in United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden, supra.

I would agree that the bill of exceptions should be sustained for the foregoing reasons.