[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
In October, 1903, the relator entered into a contract with the city of New York by the commissioner of street cleaning whereby he agreed to construct and deliver to
the city ten scows for the sum of $5,225 each. By his contract the relator agreed to comply with the provisions of chapter 415 of the Laws of 1897, as amended, known as the "Labor Law," so far as they were constitutional and applicable thereto, and that no laborer, workman or mechanic should be required to work more than eight hours in any one calendar day except in the case of extraordinary emergency. The relator was to be paid from time to time in installments as the work progressed. Under this contract he constructed and delivered six scows to the city authorities which have been accepted and retained by those officers and he received proper certificates establishing the performance of his work. The respondent, the comptroller of the city, resisted payment of relator's claim on the sole ground that the relator had permitted his workmen to work for more than eight hours a day in the absence of any extraordinary emergency. An application for a writ of mandamus to compel the comptroller to pay the relator for the scows delivered was denied by Special Term, as stated in the order, "on a question of law only, viz., that the presumption is in favor of the constitutionality of the eight hour provision of the labor law referred to in the motion papers herein, and not in the exercise of the discretion of this court." This order was affirmed by the Appellate Division by a divided court. As the writ was not denied in the exercise of discretion the order is appealable to this court.
The validity of the so-called labor legislation recently enacted in many of the states has been the subject of much litigation and controversy both in the State and in the Federal courts. In this court there have been radical differences of opinion among its members on the questions presented by such statutes. Several cases have been presented to and decided by the court. In those cases are to be found exhaustive discussions of the questions involved, and the opinions there delivered show that the members of the court approached the examination of the subject from very divergent points of view. While, as I shall show hereafter, there is no inconsistency between the several decisions made by us, so far as the propositions
actually determined are concerned, it may be frankly admitted that in the arguments used to sustain the conclusion reached there are at times found in the opinion in one case dicta in conflict with that found in the opinion in another. None of these conflicting propositions, however, was necessary to the determination of the particular case in which it was asserted. As these cases have been so recently before the court it seems to me that no good purpose would be subserved by now reopening the whole discussion of the subject, nor does there appear much prospect that by such action we would finally reach harmony among ourselves. I think the wise course is to adhere strictly to the decisions actually made by the court without further examination of the general questions involved and regardless of the individual opinions of our several members. In this spirit I shall approach the question now before us.
The earliest case under the Labor Law which came before us was that of People ex rel. Rodgers v. Coler (166 N.Y. 1). That was an application by a contractor with the city to compel the payment of his claim. It was resisted on the ground that the contractor had failed to comply with the Labor Law so far as it required payment by him to his employees of the prevailing rate of wages. It was held that the Labor Law, so far as it required that in contracts with the municipality the contractor should agree to pay his employees the prevailing rate of wages, was unconstitutional and void, and that the contractor was entitled to payment, though he had failed to comply with that provision. That case differs from the one now before us in but one respect. There the contractor had failed to pay the prevailing rate of wages; here the contractor permitted daily labor in excess of eight hours. This difference in circumstances would not justify a distinction in principle, and, therefore, the decision in theRodgers case must control the disposition of the present case, unless the Rodgers case has been overthrown by the subsequent cases in this court or in the Supreme Court of the United States.
In this connection it is necessary to refer to only three of
the cases cited by the counsel for the respective parties. The first is that of People v. Orange County Road ConstructionCompany (175 N.Y. 84). That case has in reality no bearing on the question now before us. Section 384h of the Penal Code made any one contracting with the state or a municipality who should require more than eight hours work of an employee guilty of a misdemeanor and punishable by a fine. As is pointed out in the opinion rendered in the case the statute did not assume to punish a contractor for violating his contract but for doing the prohibited act, i.e., requiring more than eight hours labor from an employee, regardless of whether or not he had agreed by his contract not to require such a term of labor and even though his contract might have been made years before there was any legislation on the subject. It was held that this penal enactment could not be sustained as a police or health regulation because of the arbitrary distinction drawn between workmen employed on a state or municipal work and those performing similar labor under other contracts. The question of the effect of a violation of a provision of the contract not to employ workmen for more than eight hours was not involved in the case nor passed on by the court.
The next case to be considered is Atkin v. Kansas
(191 U.S. 207). There a statute of Kansas enacted that any one who having thereafter contracted with the state or a municipality for the performance of a public work should require or permit any workman to work thereon more than eight hours in a day should be punishable by fine and imprisonment. The relator was convicted and punished under this statute. His conviction was upheld by the Supreme Court of the state of Kansas and the case was taken to the Supreme Court of the United States by a writ of error. As the case came from the state court the only question cognizable by the Supreme Court of the United States was whether the legislation of Kansas was in conflict with the Federal Constitution. The question whether the legislation was in conflict with the constitution of Kansas was not before the Federal court, nor did
that court have any jurisdiction to pass upon it. The Supreme Court sustained the conviction. It held substantially two propositions. First, that so far as the Federal Constitution is concerned a municipality is a mere agency of the state and subject to the absolute control of the legislature. Second,
that the constitutional liberty of the contractor was not violated because he had no right to contract with the state or municipality except on such terms as the legislature might prescribe.
Free access — add to your briefcase to read the full text and ask questions with AI
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
In October, 1903, the relator entered into a contract with the city of New York by the commissioner of street cleaning whereby he agreed to construct and deliver to
the city ten scows for the sum of $5,225 each. By his contract the relator agreed to comply with the provisions of chapter 415 of the Laws of 1897, as amended, known as the "Labor Law," so far as they were constitutional and applicable thereto, and that no laborer, workman or mechanic should be required to work more than eight hours in any one calendar day except in the case of extraordinary emergency. The relator was to be paid from time to time in installments as the work progressed. Under this contract he constructed and delivered six scows to the city authorities which have been accepted and retained by those officers and he received proper certificates establishing the performance of his work. The respondent, the comptroller of the city, resisted payment of relator's claim on the sole ground that the relator had permitted his workmen to work for more than eight hours a day in the absence of any extraordinary emergency. An application for a writ of mandamus to compel the comptroller to pay the relator for the scows delivered was denied by Special Term, as stated in the order, "on a question of law only, viz., that the presumption is in favor of the constitutionality of the eight hour provision of the labor law referred to in the motion papers herein, and not in the exercise of the discretion of this court." This order was affirmed by the Appellate Division by a divided court. As the writ was not denied in the exercise of discretion the order is appealable to this court.
The validity of the so-called labor legislation recently enacted in many of the states has been the subject of much litigation and controversy both in the State and in the Federal courts. In this court there have been radical differences of opinion among its members on the questions presented by such statutes. Several cases have been presented to and decided by the court. In those cases are to be found exhaustive discussions of the questions involved, and the opinions there delivered show that the members of the court approached the examination of the subject from very divergent points of view. While, as I shall show hereafter, there is no inconsistency between the several decisions made by us, so far as the propositions
actually determined are concerned, it may be frankly admitted that in the arguments used to sustain the conclusion reached there are at times found in the opinion in one case dicta in conflict with that found in the opinion in another. None of these conflicting propositions, however, was necessary to the determination of the particular case in which it was asserted. As these cases have been so recently before the court it seems to me that no good purpose would be subserved by now reopening the whole discussion of the subject, nor does there appear much prospect that by such action we would finally reach harmony among ourselves. I think the wise course is to adhere strictly to the decisions actually made by the court without further examination of the general questions involved and regardless of the individual opinions of our several members. In this spirit I shall approach the question now before us.
The earliest case under the Labor Law which came before us was that of People ex rel. Rodgers v. Coler (166 N.Y. 1). That was an application by a contractor with the city to compel the payment of his claim. It was resisted on the ground that the contractor had failed to comply with the Labor Law so far as it required payment by him to his employees of the prevailing rate of wages. It was held that the Labor Law, so far as it required that in contracts with the municipality the contractor should agree to pay his employees the prevailing rate of wages, was unconstitutional and void, and that the contractor was entitled to payment, though he had failed to comply with that provision. That case differs from the one now before us in but one respect. There the contractor had failed to pay the prevailing rate of wages; here the contractor permitted daily labor in excess of eight hours. This difference in circumstances would not justify a distinction in principle, and, therefore, the decision in theRodgers case must control the disposition of the present case, unless the Rodgers case has been overthrown by the subsequent cases in this court or in the Supreme Court of the United States.
In this connection it is necessary to refer to only three of
the cases cited by the counsel for the respective parties. The first is that of People v. Orange County Road ConstructionCompany (175 N.Y. 84). That case has in reality no bearing on the question now before us. Section 384h of the Penal Code made any one contracting with the state or a municipality who should require more than eight hours work of an employee guilty of a misdemeanor and punishable by a fine. As is pointed out in the opinion rendered in the case the statute did not assume to punish a contractor for violating his contract but for doing the prohibited act, i.e., requiring more than eight hours labor from an employee, regardless of whether or not he had agreed by his contract not to require such a term of labor and even though his contract might have been made years before there was any legislation on the subject. It was held that this penal enactment could not be sustained as a police or health regulation because of the arbitrary distinction drawn between workmen employed on a state or municipal work and those performing similar labor under other contracts. The question of the effect of a violation of a provision of the contract not to employ workmen for more than eight hours was not involved in the case nor passed on by the court.
The next case to be considered is Atkin v. Kansas
(191 U.S. 207). There a statute of Kansas enacted that any one who having thereafter contracted with the state or a municipality for the performance of a public work should require or permit any workman to work thereon more than eight hours in a day should be punishable by fine and imprisonment. The relator was convicted and punished under this statute. His conviction was upheld by the Supreme Court of the state of Kansas and the case was taken to the Supreme Court of the United States by a writ of error. As the case came from the state court the only question cognizable by the Supreme Court of the United States was whether the legislation of Kansas was in conflict with the Federal Constitution. The question whether the legislation was in conflict with the constitution of Kansas was not before the Federal court, nor did
that court have any jurisdiction to pass upon it. The Supreme Court sustained the conviction. It held substantially two propositions. First, that so far as the Federal Constitution is concerned a municipality is a mere agency of the state and subject to the absolute control of the legislature. Second,
that the constitutional liberty of the contractor was not violated because he had no right to contract with the state or municipality except on such terms as the legislature might prescribe. This case doubtless disposes of all claim that labor legislation of the kind now before us is in contravention of the Constitution of the United States, but it does not necessarily impair the authority of the decision in the Rodgers case, though it does, affect part of the reasoning by which the conclusion in that case was reached. The prevailing opinion in the Rodgers case proceeded on two grounds: 1, that the Labor Law invaded the constitutional rights of the municipality; 2, that it invaded the constitutional rights of the contractor by depriving him of his liberty to contract with his employees and in confiscating the stipulated price for his work in case he failed to comply with its provisions. The second ground, the supposed invasion of the rights of the contractor, is entirely swept away by the decision in the Atkin case because, as pointed out by the Supreme Court of the United States, no man has any right to contract with the public, any more than with an individual, except on such terms and conditions as the state chooses to prescribe, and so far as any confiscation of his property, the contract price, is concerned, he never acquires any right to such payment except on the performance of the terms of his contract. The first ground of the decision in the Rodgers
case, that the Labor Law was an unconstitutional violation of the city's rights and powers, is not, however, determined by theAtkin case. Though a municipality has no rights as against the state protected by the Federal Constitution, its relation to the state government and the extent of the power of the legislature to control it are to be determined exclusively by the provisions of the State Constitution, which may bestow upon a municipality
such degree of autonomy as the people see fit. Hence, so far as the decision in the Rodgers case rests on this ground it is in no way impared by the Atkin case.
The last case we considered is that of Ryan v. City of NewYork (177 N.Y. 271). That case arose under the Labor Law, the plaintiff, an employee of the city, suing for the difference between the wages actually paid him by the city and the prevailing rate of such wages. It was there held by a majority of the court that the direction of the Labor Law that the city should pay its employees the prevailing rate of wages was constitutional and imposed upon the city officers the duty of fixing wages at the prevailing rate, but that the acceptance by the employee of a different rate and his continuance in the employment of the city at such rate constituted a waiver of all claim on his part for greater compensation. The prevailing opinion in that case was written by the late chief judge of this court, who pointed out that there was no inconsistency between the disposition of that case and that of the Rodgers case, whatever conflict there might be between some of the arguments in the two cases. The distinction between the cases, already foreshadowed in the concurring opinion of LANDON, J., in theRodgers case, is this: Where the municipality lets work by contract it is interested only in the result obtained, and if that result complies with the requirements of the contract it is immaterial to the city what the contractor's employees may have been paid or how long they may have worked. But where the municipality itself undertakes the construction of a public work it assumes the risk of success or failure in the performance of the work, and the legislature, in such control of a municipality as it has frequently exercised, for instance in directing the opening of a particular street, the building of a particular court house, the acquisition of particular land for a park and the like, might, in the belief and judgment that good work was best obtained by good pay and moderate term of labor, direct the rate of wages to be paid and the time laborers were to work, as it has done in case of state work, the validity of which
we have upheld. (Clark v. State of N.Y., 142 N.Y. 101.) So, doubtless, the legislature, in the interest of economy, could prescribe a maximum rate of wages, which the city in the employment of labor could not exceed. It thus appears that there is a clearly appreciable distinction between the two cases and that the authority of the Rodgers case still obtains.
If, despite the decision of the Supreme Court of the United States in the Atkin case, the claim that the provisions of the Labor Law violate the liberty or rights of the contractor is to be treated as still open, I desire to add a few words. I fear that the many outrages of labor organizations or of some of their members have not only excited just indignation, but at times have frightened courts into plain legal inconsistencies and into the annunciation of doctrines which, if asserted in litigations arising under any other subject than labor legislation, would meet scant courtesy or consideration. The notion that a contractor can acquire any title or right to the compensation stipulated by the contract to be paid to him except on compliance with the terms and conditions upon which it was agreed to be paid, and may successfully assert that though he has intentionally violated his contract he is still entitled to his compensation, seems to me one of those fallacies that would never gain currency save in labor litigations. If the contract into which the relator entered with the city had not been invalid, because of want of power in the legislature to prescribe that character of contracts for municipalities, on what basis would the relator's claim rest? The city never agreed to pay him the stipulated price absolutely and unqualifiedly for the boats furnished, but only on condition that he should work his laborers thereon only eight hours, and to this qualification or condition he expressly agreed. Had the Labor Law otherwise been constitutional, what possible ground of complaint had he? He was to be paid, not for doing the work only, but for doing it in a particular manner, and the contract was entire. Who ever heard before this a claim that the forfeiture of the value of work done or material furnished under an entire contract by the failure
of the obligor to completely perform it was an unconstitutional confiscation of property? Look at the elementary law of this state. In Champlin v. Rowley (13 Wend. 258) the plaintiff agreed to sell and deliver a hundred tons of hay. He delivered fifty tons, but failed to deliver the remainder. It was held that he could not recover for that which he had delivered. InM'Millan v. Vanderlip (12 Johns. 165) the plaintiff agreed to spin yarn for a specified price per run during a fixed term. He ceased work before the end of the term. Held he could not recover for the work he had done. In Catlin v. Tobias (26 N.Y. 217) the plaintiff's assignors contracted to sell and deliver to the defendant certain quantities of glass. They did furnish certain glass, which defendants used, but the deliveries were less than contracted for. Held the plaintiff could not recover for the glass delivered. In the cases cited the parties lost the value of their work or of their materials because they did not live up to their contracts. If in this case the relator should meet the same fate because he has not lived up to his contract, why would a forfeiture be unconstitutional as to him and not unconstitutional in the other cases?
But it is urged that the thing or condition in which he violated his contract was not material. To this it is a complete answer that the parties voluntarily contracted that it should be material, and that unless the relator complied with it he should get no pay. Here again the question is settled by authority, though not in suits arising under the Labor Law. Foot v. ÆtnaLife Insurance Company (61 N.Y. 571) was an action on a life insurance policy; defense, breach of warranty of the truth of statements made in the application for insurance. It was urged for the plaintiff that the statement alleged to be false was immaterial. To that claim this court, through Judge EARL, said: "Parties to insurance contracts have the right to make their own bargains as in other cases. * * * All the representations of the assured contained in the policy by being written therein or incorporated therein by reference to the proposal are warranties, and must be substantially true,
or the policy will be void. It mattes not whether therepresentations are material or not. The parties made themmaterial by inserting them, and it matters not if the partiesinsured made the untrue statements innocently, believing them tobe true." I ask if an insurance company may make such character of contract as it sees fit and by that contract may make a thing material which, in fact, is not so, why may not other parties do the same? Or rather (this is the real question) why is it unconstitutional for the legislature to confer on other parties the same liberty of contract and to direct that for a breach of the contract the same results shall follow in one case as in the other, even though the breach relates to a "fantastic" thing? Why is it not just as much unconstitutional confiscation that the estate of a deceased should forfeit all the premiums paid by him under a policy because of a mistake in the statement of the cause of death of his stepmother, as in the case of this relator?
I am entirely willing to accept the illustration of a contractor agreeing that his workmen shall wear black hats and shoes. The proposition on behalf of the relator then is that there is not power in government, or at least not in any government which guarantees its citizens against deprivation of property except by due process of law, to enact that a party who has agreed that, as a condition of his being entitled to receive his pay, his workmen will, in the performance of the work, wear black hats and shoes, shall by a deliberate violation of his contract in that respect, lose his right to recover. Pray why? How would it violate the inherent liberty of the person or the fundamental rights of property to compel a man to live up to his bargain even in immaterial and foolish requirements.
It is said that the decision in the Atkin case sustaining the validity of the appellant's imprisonment is not an authority for the proposition that his contract pay may be taken away for the same offense, and it is contended that such summary forfeiture is not "due process of law." Here again I shall refrain from discussing the subject on principle, but simply
refer to what I deem conclusive authority on the question. For a century past, in this state, usury has been a crime punishable like other misdemeanors. During the same period the law has made all securities taken for the usurious debt absolutely void, and the lender forfeits to the borrower the whole amount of his loan. He can recover nothing. Yet, there is no judicial procedure taken to forfeit the lender's money. When he sues to recover his loan the borrower may set up the defense of usury, the lender is beaten and loses his money. In the present case the relator sues for his pay; the city defends on the plea that the relator has violated his contract in a respect which the law makes a ground for an entire forfeiture of the contractor's pay. If the statute were otherwise constitutional why would it be a violation of due process of law to give effect to that defense in a suit by the contractor any more than to give effect to the defense of usury in a suit by the lender? The most ingenious casuist cannot suggest a distinction in principle between the two cases in this respect.
It is finally suggested that the relator did not voluntarily assent to the obnoxious terms of his contract, but was compelled to do so. Let us return to the hypothetical case of an insurance policy. Suppose the plaintiff, in an action on the policy, in answer to the defense of breach of warranty, contended that the deceased protested against making statements as to the cause of the death of his stepmother, of which he may have been ignorant, but was compelled to do so by the company's refusal otherwise to issue the policy. No one will deny that such a claim would be too frivolous to be listened to. The claim of the relator in this respect is exactly the same, and the answer to both is that no man has a right either to an insurance policy or to a contract for work except on just such terms and conditions as the other contracting party prescribes. If one does not like the terms of an insurance policy or of a contract, his remedy is not to accept it. The decision about to be made can, therefore, stand only on one ground, the unconstitutional interference of the legislature with the right of the municipality. That proposition
having been explicitly decided in the Rodgers case, I feel it my duty to follow it regardless of my own opinion on the question.
The orders of the Special Term and the Appellate Division must, therefore, be reversed and the application for the writ of mandamus granted, with costs in all the courts.