295 N.Y. 18 | NY | 1945
The plaintiffs, an association of employment agencies and two of the agencies, bring this action for a declaratory judgment declaring that the defendant Commissioner of Licenses is acting contrary to law in attempting to limit the fees charged by agencies in providing domestic or Class "A" employment (General Business Law, §
The conduct of business employment agencies in New York City is governed by the provisions of article 11, sections 170-192, of the General Business Law, and the defendant, as Commissioner of Licenses, is charged with the enforcement of those provisions. Special Term found that for many years prior to May 12, 1944, the plaintiffs, with the knowledge of the defendant, "had been charging a sum not exceeding 10% of the first month's wages to applicants for employment and a similar charge not exceeding 10% of the first month's wages of said applicant for employment has been charged to employers who engaged the services of plaintiffs" and that for many years *22
prior to May 12, 1944, other licensed employment agencies in New York City "had been charging sums in varying amounts exceeding 10% of the first month's wages to applicants for employment and to employers who engaged the services of these agencies." It further found that on May 12, 1944, "for the first time, plaintiffs and other domestic and household employment agencies in the city of New York, were summoned to the office of the defendant and advised orally that, under penalty of suspension or revocation of their licenses, they could not charge an amount greater than the total amount of 10% of the first month's salary or income for providing employment in class `A', as set forth in subdivision 1 of Section
General Business Law, section
Section Prior to the Amendment Section Applicable to the Instant Case
"§ 185. Fees charged by persons conducting employment agencies "§ 185. Fees charged by persons 1. The gross fees of licensed conducting employment agencies persons charged to applicants for 1. For the purpose of placing a employment as lumbermen, agricultural ceiling over the fees charged by hands, coachmen, grooms, persons conducting employment hostlers, seamstresses, cooks, agencies, the classes of employment waiters, waitresses, scrubwomen, furnished by them shall be grouped laundresses, maids, nurses (except as follows: Class `A' employment professionals) and all domestics and — meaning and including employment servants, unskilled workers and as lumbermen, agricultural general laborers, shall not in any hands, seamstresses, cooks, waiters, case exceed ten per centum of the waitresses, scrubwomen, laundresses, first month's wages, and for all maids and other domestic other applicants for employment, servants, nurses (except shall not exceed the amount of the professional) unskilled and first week's wages or salary unless untrained manual workers and general the period of employment is for laborers; and class `B' employment at least one year, and at a yearly — meaning and including salary, and in that event the gross any employment (except theatrical fee charged shall not exceed five engagements) not included in per centum of the first year's class A'. The gross fee charged salary, except when the employment by any person conducting an or engagement is of a temporary employment agency shall not for nature, not to exceed in any any single engagement exceed ten single contract one month, then per centum of the first month's the fee shall not exceed ten per salary or income for providing centum of the salary paid." employment in class `A', nor (Emphasis supplied.) exceed the amount of the first week's salary or wages for providing employment in class `B' unless the computed first year's salary or income to be derived is equivalent to twenty-five hundred dollars or more, in which event the gross fee shall not exceed, in per centum of the computed first year's salary or income, a rate equal to one-one thousandth of said salary or income, and in no event shall exceed a rate of five per centum of such salary or income." As amended by Laws of 1942, chapter 908, section 1, effective May 20, 1942. (Emphasis supplied.) *24
It was found that the "class of employment provided by the plaintiffs herein is grouped as class `A' employment within the provisions" of the above section.
The history of the section does not cast much light upon the question of its interpretation. Section 185, subdivision 1 (L. 1910, ch. 700), was derived from sections
Returning to the wording of the section as it now stands, plaintiffs here point to the use of the singular in the provision "The gross fee charged," etc. They urge that if the 10% fee were to be divided between the employee and employer there would be two separate fees. They point also to the use of the words "for providing employment" and this does seem a cogent argument for the interpretation that only employees were referred to. In other sections of article 11, i.e., section 171, subdivision 2 (definition of "employment agency") and in section 187 (receipt for fees paid) there is a differentiation between applicants for help and applicants for employment. These same terms were used in the earlier statutes above referred to (L. 1904, ch. 432, § 5; L. 1906, ch. 327, § 1; L. 1906, ch. 328, § 5). There is a difference in language between the provision in the present section 185, subdivision 1: "The gross fee charged by any person conducting an employment agency shall not for any single engagement exceed ten per centum of the first month's salary or income for providingemployment * * *" (emphasis supplied) and the language in the present section 171, subdivision 7, which provides, in part: "7. The term `fee' means and includes any money or other valuable consideration paid or promised to be paid for services renderedor to be rendered by any person conducting an employment agency * * *" (emphasis supplied). It would seem that the fee referred to in section 185, subdivision 1, *25 was a more limited fee that the one defined in section 171. It was to be a fee paid for providing employment and thus to be paid by an employee.
We think, however, that plaintiffs are in error in urging thatno regulation of the amount of fees charged employers was intended. The expressed purpose of the present section 185, subdivision 1 ("For the purpose of placing a ceiling over the fees charged by persons conducting employment agencies * * *") would clearly indicate such an intention. The provisions of General Business Law, section
The conclusion is inescapable that some control over fees charged to employers was intended by the very fact of amendment, and the change in language. To say that some control over the fees charged employers was intended does not mean, however, that we must sustain defendant's position. It seems to us that the intention of the Legislature was to continue the limit of 10% on the fees charged employees and to provide a limit of 10% on the fees charged employers. In other words, an employer may be charged an amount not in excess of 10% in addition to the fee (again not in excess of 10%) charged the employee. There is nothing in the expressed purpose of the section that forbids such interpretation. A "ceiling" is provided, though it is a higher ceiling than that urged by defendant. The only difficulty lies in the use of the words "single engagement" ("The gross fee charged . . . shall not for any single engagement. . ."). That means, we think, that it is a *26
single engagement when the agency obtains help for the employer and a single engagement when the agency obtains employment for the employee. Plaintiffs must stand or fall on that interpretation of the statute. There is no merit in their contention that if the statute be ambiguous, effect should be given to the practical interpretation given the statute by those entrusted with its enforcement. The present section was effective on May 20, 1942. The defendant acquiesced in the charging of fees of 10% or more to employers until May 12, 1944, when he advised plaintiffs that they could charge only a total fee of 10%. That was a period of less than two years and would not constitute a "practical construction . . . acquiesced in by all for a long period of time" within the meaning of the authorities (Matter ofCity of New York,
Nor can plaintiffs succeed on this record in their attack on the constitutionality of the section. A limitation upon fees charged to employers would not deny plaintiffs equal protection of the laws since all agencies in the same class are treated alike. (Matter of Sacharoff v. Corsi,
The judgments should be reversed, with costs in the Appellate Division and in this court, and the matter remitted to the Special Term for further proceedings not inconsistent with this opinion.
LOUGHRAN, Ch. J., LEWIS, DESMOND, THACHER, DYE and MEDALIE, JJ., concur.
Judgments reversed, etc.