179 N.Y. 417 | NY | 1904
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *419 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 *420 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 *421 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 (
In this connection it is necessary to refer to only three of *422
the cases cited by the counsel for the respective parties. The first is that of People v. Orange County Road ConstructionCompany (
The next case to be considered is Atkin v. Kansas
(
The last case we considered is that of Ryan v. City of NewYork (
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 *426
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 (
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 (
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 *428 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 *429 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.
Dissenting Opinion
I agree with Chief Judge CULLEN that the statute interposed as the sole defense to the relator's claim is void for the reason that it violates the State Constitution, but I do not concur in all the reasons and arguments upon which a perfectly correct conclusion seems to be based. My reasons for concurring in the general result and dissenting from at least one proposition in the opinion are these:
We certainly decided in the Rodgers case that this same statute which required the contractor at the peril of forfeiting all the fruits of his contract to pay to his workmen what is termed the prevailing rate of wages was in conflict with the Constitution, and, therefore, void. There cannot, of course, be any sound distinction between the clause of the statute which attempts to regulate wages and the clause which attempts to limit the hours of work. Both provisions were enacted at the same time for the same or similar purpose and any valid reason for condemning the former applies to the latter. Moreover, theRodgers case when decided had the support of a previous decision of this court (People ex rel. Warren v. Beck,
One of the grounds upon which the Rodgers case rests is that the statute there considered and now before us deprived the contractor of his property without due process of law, and the learned chief judge, as I understand the opinion, asserts that this ground has been entirely swept away by the case of Atkin
v. Kansas (
It is an undisputed fact that the relator in this proceeding delivered to the city property, the contract price of which exceeded $28,000. The relator furnished this property at his own expense and the city now has it and uses it as its own. The statute, so far as the relator is concerned, confiscates this property, since it deprives him of the right either to have it returned or to enforce collection of the purchase price. It permits the city to declare the contract null and void, to retain the property and grants it immunity from any obligation to pay and furnishes a defense to any suit or proceeding brought by the contractor to recover the contract price. The city has agreed to pay for the property, but the statute now before us forbids such payment and furnishes the city with a good defense if the law is valid. All this is sought to be *431 accomplished, not by any judicial proceeding or legal process, but by a legislative edict "as sweeping and relentless as the torch of Omar." It would seem to be scarcely possible that any one could argue himself into the belief that such a law does not violate the constitutional guaranties for the protection and security of private property and the sacredness of contracts. It is difficult to see how any court could hold that such a law does not interfere with property rights, contract obligations and all remedies for their enforcement, but, as I understand the opinion, just such a decision is imputed to the highest court in the land, since it is asserted that one of its decisions has swept away all ground for the claim in this case and from our judgment in theRodgers case that the statute in question deprives the contractor of his property without due process of law.
In my opinion the Kansas case does not decide any such proposition and does not sweep away what we held in the Rodgers case, and should hold in this case, namely, that the statute in question violates the Constitution of the state in that it deprives the relator in this case, as it did the relator in theRodgers case, of his property without due process of law. In order to get a clear view of the question before the Federal court and what the case decides, it ought to be examined with some care. The learned chief judge is quite correct when he states that only one question was before the court, and that was whether the state statute violated the Federal Constitution in that it deprived the defendant in the case of his liberty without due process of law. It certainly did not assume to deprive him of anything else. The court had before it for construction a statute widely different from our own, since the only remedy prescribed for its enforcement was by indictment and criminal prosecution. It was a criminal case, based upon a criminal statute, that obviously contained no such drastic remedies for enforcement as are to be found in the statute now before us. It did not assume, as our statute does, to destroy or confiscate the contractor's property, or to annul his contract, or to deprive him of any *432 remedy for the collection of the fruits of his contract. It did not touch the contract at any point, nor the money earned upon it. It simply subjected his person to incarceration for violation of the law, and after conviction all his remedies against the city for collecting the price of his work were left intact. He could enforce his claim against the city for the money earned on the contract just as well after conviction as he could before. The wide difference between the Kansas statute and our own will thus be seen at a glance. The former simply punishes the contractor for a specific act or omission, while the latter deprives him of all property rights under his contract, which with us frequently amounts to thousands and even millions of dollars.
The Kansas case decides nothing except the single proposition that the defendant in the case having voluntarily entered into the contract was not deprived of his personal liberty by the statute. That was the sole question before the court and the decision does not conflict in the least with anything decided in the Rodgers case, except possibly what was there said with respect to the personal liberty of the contractor so far as that was supposed to be involved in the right to make contracts with his workmen. There is not a word in the opinion of the court, as I now recall it, with respect to the effect of the statute upon the property rights of the contractor, and for the plain reason that the statute did not assume to disturb or interfere with these rights at all. How very different then is that case from the Rodgers case and the case at bar? It is quite conceivable that a statute may be good which assumes to punish a municipal contractor for violation of some law in the execution of the contract, but it would not follow by any means that it would also be valid if it assumed to deprive the contractor of all rights under the contract when executed. The legislature has the undoubted power to punish a person criminally for shooting game out of season in this state, but if it should attempt to deprive him at the same time, summarily, of the ownership of his gun, a very different question would be presented. The legislature has ample power to *433
make it a crime for a person to disturb his neighbor's oysters lawfully planted in public waters, or to remove the stakes or buoys placed in the water to mark the locality where the oyster beds have been so planted, but it has no power to confiscate the coats or other water craft used in unlawfully removing the oysters and thus violating the statute. (Colon v. Lisk,
There is, however, one feature of that decision which although not discussed at all in the opinion, is of considerable interest, and that is what seems to be the practical concession on the part of the court of the omnipotence of a state legislature in the creation of new crimes. It is virtually held that the Kansas legislature had the power to make it a crime for a municipal contractor to permit his employees to work five minutes more than eight hours in the day even though the servant wanted to work and the employer was willing to pay extra wages. Of course if the legislature could make it a misdemeanor to permit this, it could make it a felony, and if all this is so there would seem to be no limit to the power of a state legislature in that respect. Whatever may be the law of Kansas, or the law in the Federal courts in that respect, it is quite certain that this court has held that the power is limited and that the legislature has no power to denounce as crimes acts which in their nature and consequences are innocent and harmless. (People v. Gillson,
It is quite true that this court has recently held that the legislature could make it a criminal offense for a baker to permit his workmen to work more than ten hours in the day (People v. Lochner,
I have a word to say with respect to the latter part of the opinion. The proposition that a law cannot be unconstitutional which simply requires a party to perform his contract before he can recover upon it cannot of course be disputed, and if that is what this statute means, and all it means, it is probably about as harmless and useless a law as ever was enacted. I assume that the legislature never supposed that it was necessary to pass a statute forbidding a party to enforce a contract that he had himself violated or had not performed. That has been the law from time immemorial, and of course is the law still. If the relator in this case has not performed his contract, he cannot recover and is entitled to no relief. If he has not performed his contract it is not of the slightest consequence whether the statute in question is constitutional or not. In that aspect of the case the statute is not involved in the discussion. But the relator has performed his contract. He has produced and delivered to the city the property which was the subject-matter of the contract and the city neither refused to accept nor offered to return it, or made any objection on the ground of non-performance. Even if such an objection could survive delivery and acceptance of the property, it would have no basis whatever in the facts of this case. *436 If we inquire wherein or in what respect the relator has failed to perform, the answer is that he stipulated not to permit his workmen to work more than eight hours a day. That is the head and front of his offending. That is the breach and the only breach that is claimed. It was not of the slightest consequence to the city whether he permitted his workmen to labor eight hours or nine, so long as he produced and delivered the property that he agreed to deliver. It is a fair test of the importance of that objection to inquire whether the city could have maintained any action against the contractor for the so-called breach. Of course, it could not, for the plain reason that the act of the relator in regulating the hours of work was immaterial and entirely foreign to the subject-matter of the contract. If the contractor had stipulated that his workmen should wear black hats and boots instead of shoes, a breach of that condition, if it is a condition, would not furnish the city with any cause of action or any ground of defense. The obstacle that is in the relator's way when he seeks to recover the $28,000 which the city agreed to pay him as the price of the property delivered is not the stipulation in the contract, but the statute. I doubt if any one would even suggest that if there was no eight-hour statute that the stipulation in the contract would be regarded as of the slightest importance. A breach of contract can never be urged as a cause of action or defense unless the breach is of some stipulation that is material considering the subject-matter of the contract. Stipulations with respect to some extraneous matter, or such as that now under consideration, are not material.
Finally it ought to be observed that this very question was presented, discussed and decided in the Rodgers case. The last paragraph of the opinion is devoted entirely to that question, and it was held that the omission on the part of the contractor to keep this stipulation was entirely immaterial, and no obstacle to his right to enforce the contract. We held that if the statute was not valid the stipulation was not binding, and I fail to find anything in the Atkin case that overrules what we then decided in that regard. *437
Dissenting Opinion
I did not agree to the conclusion reached by this court in the case of People ex rel. Rodgers v. Coler (
Neither the question of public policy nor of the health law was raised or determined in the Rodgers case, and, therefore, I do not regard it as controlling upon the determination of the questions raised in this case.
WERNER, J., concurs with CULLEN, Ch. J.; MARTIN and VANN, JJ., concur with O'BRIEN, J.; HAIGHT, J., reads dissenting opinion; GRAY, J., absent.
Orders reversed, etc.