People Ex Rel. Rodgers v. . Coler

Oases decided

IN THE COURT OF APPEALS OP THE ' oe

State New York, 26, COMMENCING 1901. FEBRUARY rel. ex William of the State New York as v. Bird S. Respondent, Comptroller Rodgers, Coler, of New City York, Appellant. Appeal — Discretionary 1. Allowance Mandamus. Where discretion, grant below has the court to matter of mandamus as a allowing in Appeals. its-action the writ is not reviewable the Court of Non-compliance — 2. Constitutional Law with Labor Law as Prevailing Wages, Rate no Defense to Mandamus Com- pel Payment Municipal municipal of Amount Due on A Contract. performed fully contractor who has grading his contract for street therein, and, provided proper as has received from the authorities a certifi- showing price earned, agreed cate the contract has been he mandamus, compel city pay although amount due by he stipulation comply required with his (L. failed the Labor Law 3, 415, 1899, 1897, 192, ch. 567), pay amd. L. that he will his chs. § locality, workmen not less than the rate of and u in void, Law, he fails to such rate shall he the Labor so since Mrst, case, it relates to such a in far as unconstitutional: because its actual permits expenditure money it operation requires and of the city purposes; second, property owner for other than or that local rights liberty property and invades in that it denies to the because agree employees the contractor the with their the measure compensation, compels an arbitrary of their them all cases expressed vague language, uniform rate difficult to define which is third, causes; subject change artificial or ascertain and to constant virtually property rights all contractor under because confiscates statute, engagement obey for breach of his contract which, themselves, attempts penal to make acts omissions effect, It, imposes penalty and harmless. exercise innocent Bodgers [Feb., ex eel.

Statement case. [Vol. agree employees city right contractor of the their by the or the with upon employment. the terms and conditions of the op Agreement that Contract Shall eor Void Violation Depense Proceeding. Law The fact that the Labor no contractor stipulated that the contract should be void in the event of a violation of proceeding, obligation is no defense to the the Labor Law since the and the legal promise engagement imported effect of a into a force contract statute, parties whereby contracting agree' obey of execute law, depends upon law, validity stipulation some and such a founded, upon cannot survive the statute it is with falls it. Coler, Rodgers App. 98, ex rel. Div. affirmed. 7, 1901; 26, (Argued January February 1901.) decided Appeal an order of the Division of the Appellate Court first made Decem- department, Supreme judicial ber order of Term 14, 1900, reversing Special denying relator’s motion for .writ of mandamus com- peremptoi'y to deliver to him a warrant on the comptroller manding chamberlain of New York for the city payment the amount earned relator under a $2,863, and with One Hundred and regulating grading street from Amsterdam avenue to the Thirty-fifth Boulevard, motion for the and relator’s writ. granting The which the relator made the papers application that on 5th show he made day 1900, February, entered a contract with the into regulating grad- that of the above street described. The contract ing part that order to provided prevent disputes litigation chief in all should, determine the cases, engineer highways amount and of the several kinds of work which quantity for under the were and all contract, questions relation to his work and construction and that his thereof, estimate and decision final should be and conclusive contractor and condition to his to receive precedent under the contract. It is the relator any money alleg.ed out this contract and perform carry prior 2Droceeded had the same application performed according and to the satisfaction promise commissioner; the chief subsequently engineer work charge Rodgebs ex bel. Coleb. Rep.] H. Y. Statement oí case.

the commissioner made writ- certificate highways that there was earned under the in accordance ing contract, the terms the relator and thereof, then payable the sum of him, This certificate was filed in the $2,863.00. office who drew his warrant on comptroller, thereupon the chamberlain for that but refused to deliver the same to sum, or, to make the under the relator, contract. payment refusal is based the fact comptroller entirely upon the relator in the of the contract alleged performance violated certain Labor Law provisions 415 of the (Chap. of Laws amended 1897, by chap. chap. .567 of Laws 1899).

The folio in are, of this substance, stat- wing, provisions ute far as have so relation to the they case: any present

1. The for a as herein- Avages day’s work, legal to all of defined, before classes such or laborers, workmen all mechanics such Avorkor material to upon public any upon or in be used connection therewith shall not be less than upon rate for a work the same trade or day’s in the Avithinthe state where such occupation locality public on, about or in work connection Avitliwhich such labor is per- final formed or form is to erected completed situated, or used. Each said contract hereafter made a shall contain that each such workman or mechanic stipulation laborer, such contractor, or other employed sub-contractor, person on, about or work such shall receive such upon public Avages herein for. provided

2. Each contract work hereafter made shall con- public tain a that the same shall be void and no effect provision unless or or person corporation making performing same shall with the of this and no such provisions act, comply or shall be to receive entitled nor person corporation any sum, or shall of the state or of munic- officer, any employee agent same or authorize its from ipal corporation pay payment the funds under his or control to such or charge any person for work done contract in its form corporation upon any manner of or violates section. this performance provisions Rodgers [Feb, Oolee. 166.

Statement case. [Vol. of this or of or officer, state, Any agent employee to act therein, municipal having duty corporation the vio- who evades or violates, premises, knowingly permits of this shall be act, lation or evasion of any provisions or and shall be office, of malfeasance guilty suspended or removed having appoint authority remove or otherwise such officer, agent employee, gov- of this state maintain ernor. citizen may proceedings Any or officer, or removal such suspension agent or maintain an action for the purpose employee, which, the cancellation or avoidance of any securing this or for its terms or manner of violates act, performance, or officer, any employee purpose preventing agent or such municipal authorizing corporation paying done for work money thereupon. payment any public with these was framed The contract compliance provis “The of the law and contains ions following stipulation: for a as hereinbefore work, to be paid legal day’s workmen mechanics laborers, to all classes such defined, material used all to' be work, shall be less than the or in not therewith, connection upon, work in the same trade for a or rate day’s occupa prevailing tion in within the state where such work public locality with- which is in connection labor performed about or on, is to be erected or used. situated, its final or form completed that each such workman or It is laborer, further agreed or such sub-contractor contractor, mechanic employed work shall receive other about in, person It further that this set forth. is hereinafter agreed wages no and of effect unless be void person contract shall the same shall with or performing comply making corporation * "x" * Law. The contract is Labor the provisions unless the rate of no effect void and of wages specified is Labor Law where laborers three of said section paid, to citizens is state given employed preference thirteen thereof.” in section York, provided Hew him to the persons employed by contractor paid The People Rodgebs 5 v. Colee. n Rep.] N. Points of Y. counsel.

execution of the contract fixed as to amount mutual wages and it conceded he all that agreement, was demanded him or that he But since it was agreed pay. conceded that contractor did not all cases pre- the court at rate, Term held the contract vailing Special and the law were violated relator was not entitled to the writ. The a divided Division, Appellate court, reversed the order and the relator’s granted application, this from order the to this court. corporation appealed Whalen, John Counsel Corporation (Theodore Connoly Terence Farley counsel), appellant. By express of section 3 of of the Laws 567 of 1899 the provisions chapter defendant relator’s prohibited complying the. (The Marie demand. 2 Lowell Celeste, The S.], 316.) [U. did show clear to a relator mandamus. legal right (Mat ter 148 ex N. Y. rel. v. Freel, 165; People Mayor, etc., 144 ex ; N. Y. 63 rel. 34 v. Div. People Coler, App. 167; 533; ex 18 rel. v. Board Misc. Aldermen, Mat Rep. v. ter Sheehan 11 Misc. Island Long City, Rep. 487; v. 158 N. Y. Merrill on ; Weston 274 Man Syracuse, City of Extra. damus, 17; Relief, 1375; on Spelling’s Extra. High § § 14 Rem. 339 Wood on & ; Mandamus, 68; Am. Leg. Eng. § 176; v. 14 R. Wilson, L. A. Law, Ray 773.) Ency. the Labor Law contractors or munici provisions requiring workmen and laborers, mechanics corporations pal (Wil rate of is not unconstitutional. 304; v. U. S. Matter liams 170 Protestant E. Eggleston, Y. v. 136 46 N. Y. School, 181; N. 554; Phyfe, Md. v. 436; v. Frederick Groshen, Frederick City, Groff v. 3 Ind. 43 67; Bank Madison, ; 44 Md. State Luehrman Dist., 425; Berlin v. Taxing Lea, Gor Shelby County 34 The can be N. H. sus ham, legislation question 266.) that the on the tained business making repair ground is affected interest, with as public highways ing prescribed by police regulations subject 94 v. U. S. Illinois, 113; the state. (Munn Allnutt 6 People Eodgees [Feb., v. Colee.

Points of counsel. [Yol. 12 v. v. Inglis, East, 527; 1; 117 N. Y. Budd Budd, People v. 143 U. S. State, 517; Beekman v. S. & S. R. R. 3Co., Paige, B. & R. v. 94 B. 45; Q. 155; Co. U. S. E. Chicago, Iowa, R. R. v.Co. B. St. R. R. Y. Co., 132; S. 111 N. Perrine v. C. & D. C. 50 U. S. v. 24 Co., 172; State, Freeholders ; N. J. L. Snell v. 130 Ill. 718 Labor 413.) Chicago, is not unconstitutional' Law because of the provision. eight-hour (P v. 136 48 N. Y. State v. eople 554; McNally, Phyfe, Ann. 1450 14 La. Holden v. 169 U. S. ; Utah, 71; Hardy, Utah v. 14 v. B. B. 366; Holden, Utah, Short & C. 96; Pac. 336; M. 57 720 Matter 59 Pac. Co., ; Dalton, Rep. Rep. v. 94 U. S. 99 U. Illinois, 123; Cases, Munn Fund Sinking S. on Const. Lim. Westervelt v. 718; Cooley 202; [6th ecL] 12 Y. v. 96 209; N. Davidson New U. S. Orleans, Gregg, Whether the act be constitutional or not, 102.) question relator is bound the terms of and, his contract, .the having illegal. that it is received benefits, estopped claiming v. 113 N. Y. etc., Sonneborn, 423; ayor, City (M v. 134 Y. L. v. 532; N. B. G. Co. Balcom, Claffy, Buffalo v. 10 151 N. Y. ex rel. Misc. 24; Beck, 79; People Rep. v. N. Y. The relator 74 O'Reilly, 517.) Bertholf adequate remedy at law. ex rel. v. Bd. (People Education, 148 Y. 60 N. Hun, 487; 766.) C. Petté for L. Kellogg respondent. Laflin Alfred of the contract contractor to

The provisions requiring ” “ Law are and the the so-called Labor illegal, comply insertion 415 of the Laws of statute (Chap. requiring is unconstitutional void. v. (Holden 1897 amended) N. art. 1, 6; 169 U. S. Const. Y. Const. 366; 1, Hardy, §§ Curran, 14 Wend. 10; v. 1; Fisher, art. 14, People U. S. § H. v. 152 N. Y. Butchers’ U. S. Co. Crescent 33; Galen, v. ; 111 U. S. 746; Matter 98 N. Y. 98 Jacobs, Co., City 109 N. Y. v. N. Y. 389; Lisk, Colon Gillson, v. The relator has N. Y. Hawkins, 188; 1.) waive constitutionality could not question into the contract contain- voluntarily entering statute by n 7 People Eodgees ex eel. Court, O’Brieií, per Opinion Rep.] Y. J. N. the with that he would pro comply ing illegal provision “ should be and that

visions of Labor Law,” was the rate of void and of no effect unless specified paid. Ill. 545; v. on Lim. 72 335; Const. Phelps Phelps, (Cooley N. C. Ill. Branch v. 77 Tomlinson, Recht v. 82 147; Kelly, 249; 110 Utah, v. v. 22 N. Y. 388; Newcomb, Kneettle Hopt The M. v. 163 M. Y. Shinn, U. S. Nat. Bank 574; 360.) the contract, received certificate relator, required having mandamus was entitled to a delivery directing peremptory of his claim. and the of warrant by comptroller payment ex v. 148 Y. rel. (Matter Freel, 165; Mayor, N. People ; 144 ex v. 34 Div. 167 Coler, N. Y. rel. etc., 63; People App. 533; ex v. 18 Misc. Aldermen, rel. Board Rep. People 487; v. 11 Misc. Matter Sheehan Island City, Rep. Long ex rel. v. ex rel. v. 26 Misc. Coler, 509; People Rep. v. 158 125 ex rel. Van Education, Board N. Y. ; People N. Y. Wyck, 495.) There is no to the facts dispute respect

O’Brien, all admitted which this They controversy depends. the record and the involves only appeal questions law. On the fifth the relator entered 1900, day February, into a written contract with the administrative officer proper of Mew York he undertook to whereby regulate street. The law work should grade required done contract. It was local be expense improvement, was to and of which ultimately charged paid local owners. was authority agency property but since it was for the benefit work, inaugurate or their whole or owners private property prop- part liable for the cost. That relator became ultimately erty in the contract is not work embraced actually performed The certificate of the officerin denied or disputed. charge the terms of the to be evidence contract, the street was, by and that and filed with certificate was performance, given that the contract defendant, comptroller, price showing had been earned, stipulated only ground [Feb., Eo doers Ooleb. O’Brien, Opinion Court, per of the J. [Vol. which the defendant has based his refusal to is that the relator has not the a certain contract, kept stipulation which has no relation whatever to the actual performance of. the work, to matters other w'ords, extraneous. In entirely the asserts while the relator comptroller that, per actually formed the work and earned the under the con compensation he has tract, forfeited the to demand since he right payment, has not observed the of the He terms Labor Law. contends that it that the work, relator has the enough performed to the unless he according contract, per specifications formed it the means and therein by ; very stipulated agencies that the means and the contract were by agencies prescribed not mere matters of form but matters of substance. The duty the the of which is comptroller, enjoined upon performance commanded the if and the relator writ, ministerial, was by was not entitled to the writ and as matter of legal absolutely the court had it in the below exercise right, power grant discretion, the action of the court in having it, granted that is not here. ex rel. reviewable Steinson respect (People v. Board 125 ex ; N. Y. rel. Jaco Education, bus v. The had Van 157 N. Y. court below Wyck, 495.) the the it is of no grant writ, power, haying if even true as that the reasons be consequence, alleged, action are untenable. given It must admitted that attitude of the authorities in this a curious and anomalous situation respect presents which involves results. If some startling they taken, must follow that the must position accept made receive the benefit of the con- improvements tractors to the extent of thousands of dollars, or millions that the work done, though honestly precisely conceding contract, according specifications yet may refuse to if it is show that the contractor has not, able to ¡Day in all the execution workmen contract, him what rate is called employed by wages. The the citizens work and accept enjoy city may for- treat price benefit it and something -y. ex bel. Kod&ers Opinion Court, Itep.] per O’Brien, Y. 3Y feited the contractors for their benefit. It is obvious that leads to such a reasoning result must argument at some It is not point inherently faulty. possible can be sanctioned courts state injustice where the of the common law are principles recognized.

fact certain Labor Law were provisions actually into the contract incorporated contractor cannot signed by add to the change anything strength position assumed The relator is not city. estopped by when there is no element of in agreement estoppel case, and is with to the question respect validity the statute and not the construction or effect of the in that contract If the law is valid it regard. governs the contract and the of the whether rights parties actually into the since all are incorporated not, contracts writing assumed to made with a view to laws on the sub- existing is If it not valid the contractor has not it ject. made so in to it and stipulating by writing obey prescribing penalty his own disobedience which is the forfeiture of all rights under the It is not in the agreement. legisla- ture invalid from law protect judicial scrutiny by pro- it that must receive the assent of the viding parties every to which it contract relates. The that the relator is argument assent to the bound terms of the contract voluntary would force to the equal apply city estop now before since us, certificate of question raising th.e its own officers that amount claimed is due to the justly the terms of relator, -contract, according question is deemed to be' settled. The parties performance stipulated final that this should be is conclusive, certificate and it not for fraud or Courts in such cases are invalidity. impeached mere must look at the not bound but substance of forms, this transaction idle and so would he viewing things, with the idea that the to deceive ourselves attempt question out of the of the involved in this arises stipulations appeal the contract or is rather than the by them, parties governed is in The contract the form that statute. we provisions Bodgebs [Feb., O’Bbies, Opinion Court, per of the [Yol. find not because the so elected to but contract, it, parties reason the statute not them to contract would permit other way.

Hor is it true that the statute is mere direction entirely of its to con- to one own sovereign authority agencies tract in certain cases It is all that no particular way. doubt and much since affects and muni- very more,- personal directions that are of more cipal rights many vastly import- ance than the mere form of a perform municipal work. It is true that a is an state enough city agency some of the these functions discharge government, terms do not its true describe relations to state adequately or the people.

A officer a local not municipal directing improvement of the state. He is the and the agent the city city agent alone is for his or misconduct. If responsible negligence authorities of a streets charge agents state, held for their liable acts or city ought omissions. Hew York exists under charters and laws as old the state while itself, clothed with extensive to administra- powers respect tion of local are there some its government, things beyond The cannot authorize or a power. legislature compel city to of its or or to its any loan give money property, credit for to nor of its any private purpose, expend any money, for or other than If directly city indirectly, any purposes. should statute to enter into legislature require city or contracts whicli secure benefits to directly indirectly pri- vate or classes of individuals, citizens, not particular the statute would be as in void conflict purposes, purely city if with the All letter, Constitution. spirit, must of be for and that expenditures money city purposes it far so as authorized to devote to the alone, funds except relief of or which poor said to be a may charity, in A sense. statute which tends to city purpose largest divert or or local money property city, city devotes it owners, strictly purposes property Rodgers v. Colee. O’Brien, Court, Opinion per T. Rep.] N. tlie interests of or interests,

directly indirectly private from the whole body, as some class of persons distinguished the form of made assume the transaction is pay whether with the in conflict else, spirit ments of or something Constitution. (People of these provisions policy 128; 53 Y. v. N. Batchellor, ex rel. W. & P. R. R. D., Co. The 55 Y. Albertson, ex rel. N. legis Bolton 50.) unrestricted bind city lature does not possess affairs. all its and foot with local business hand respect it must fix statute the It cannot pay price that it or the materials or need, compensation may property that it that it or other services must for labor increase at least when such to employ, regulations obliged in the ordi cost which would be obliged beyond all these If it could do course of business. things nary for such of all the revenues of could virtually dispose and local would best, self-government purposes thought The constitutional but a sham and delusion. be nothing to the restrictions cities with expenditure respect avail if can no mandatory money legislature . frame laws the officers or governing body compel of individuals in the interest or for the benefit contracts classes. all the of cor- is a powers corporation possessing and cannot be property deprived

porations generally than a more or due of law its consent without process used its revenues must be and since can, corporation private how the it is to see difficult for municipal purposes, for it whicli involve make contracts expenditure can both sides its consent. Counsel revenues without these it seems to be assert, undisputed, this controversy in now city consequence there are pending against claims of the statute aggregating violations question, alleged in the the difference million dollars, six representing over accepted to employees, actually city amount paid by and what is assumed made, them under contracts voluntarily by it be statute. If under the rate of be the Rodgers [Feb., v. Colee. Court, per O’Brien, Opinion of the [Yol. assumed that the statute this vast sum requires city in addition to what it under its contract with these paid and which the latter employees, it would be accepted, freely very difficult, if not that such is show impossible, payment for and thus city purpose, compelled by municipality the statute to violate the This situation would Constitution. seem to that either the statute must prove or Constitution To the extent of the sum which the disregarded. city pays under this statute in excess that which actually the work under contracts made in the course of fairly ordinary business, of the Constitution provision limiting expendi- tures of is violated. These limitations money city purposes cities as well to the upon payment money: by apply of the What the Constitu- power legislature. city tion forbidden to it is not for the do, competent legislature authorize or either and the command, directly'or indirectly, vice the statute is to found in fact question for a to some one, provides provide gratuity per- more class some of citizens. haps properly exists under its ancient charters as modified or modern enactments for the of local self- enlarged by purpose While the so conferred government. powers upon rights or modification subject supreme change of the state cannot be It is power they wholly destroyed. not true that the internal affairs of cities this state are to the will of the The Consti- absolutely subject legislature. tution their existence as recognizes political corporate and has various restrictions bodies imposed powers to interfere of local matters government. is without It officers, appoint city though may pro- vide for their election the local or their electors, appoint- ment some local It cannot dispose authority. prop- nor disburse its however municipality, revenues, erty not' to local administra- acquired, purpose joertaining or local tion government. amendment

The recent to the Constitution, confers cities and the mayor larger mayor govern Bodgees ex v. Ooleb. bel. Court, O’Beien, Opinion per Rep.] K. Y. be what may tire others

ing body interpose right relat called a of the state veto acts legislature qualified cities their local possess ing affairs, implies plainly limited, certain however kind of which, political autonomy at pleasure. (1 not invade or destroy legislature may can Dillon- It on Munic. may regulate Corp. 71-74.) §§ Constitution, inherent not destroy powers recognized by ,in effect cities of the state. The plain purpose law contractors was to city question deprive matter of all exercise of and discretion judgment all works. to be to workmen employed upon the statute Both the and the contractor city deprived all to deal with that and, question, consequently, power con all in that most vital interests power protect regard tract or is conceded otherwise. The which every right in the state individual and every private private corporation is denied to make their own contracts own bargains if and, moreover, to cities and to work ; contractors earned on to assert latter attempt right money without the contract is declared to forfeited decree. the intervention of any legal process judicial such a with exercise of inconsistent principles power of which was and enforcement civil liberty, preservation the main in view when the was enacted. Constitution purpose their con cities and If has power deprive rates tractors their workmen upon agree the same with respect compensation, why That to all and all corporations? private persons private this court can be answered in question language was under similar used when case with features somewhat “ invade class of : one Such consideration legislation may if be sanc can to-morrow, and another to-day rights time we far removed while Constitution, tioned under the from those far statesmanship will not away practical the building when governmental prefects supervised ages and the of seed cattle, of houses, rearing sowing ordinances regulated governmental grain, reaping Eodgebs [Feb, Court, O’Bbien,

Opinion per of the J. [Yol. the movements and labor of the rate of artisans, wages, the diet and price food, of the and a people, clothing of other affairs in all large since civilized lands range long as outside of regarded functions.” re (In governmental 98 N. Y. It "a Jacobs, was once maxim that the 98.) political best which It is government possi- least. governs governs ble that we have now idea but it was an that was outgrown it, : to the minds men of the who framed the always present Oon and it stitution, courts to bear it mind when proper that instrument. The master expounding power deprive and servant of the the rate of right agree wages upon the latter was to receive is one of the which can be things the f undamental law regarded impliedly prohibited by upon consideration of its whole and, as well as the scope purpose restrictions and If the is not guaranties city expressed. per mitted enter into fair contracts with its for their employees on such terms as services, individuals or private ¡irivate corpo rations it is disabled from the duties performing enjoined may, law from the restrictions of Constitu obeying tion. Even the in the civil service of the ordinary employees are the Constitution from the exercise of protected by absolute power by legislature. Appointments promo tions in such service must reference to merit be made with and fitness to ascertained be when practicable competitive examinations. The has no to enact legislature power per missive laws in that conflict with mandatory principle. These and others which illustrations, might given, prove thac the their internal cities and affairs are proposition to the will of the and that it absolute subjected legislature, has the this or to command to do power municipality as it think far from correct. There are best very limitations its and others to be many express nature local of the implied right self-govern very ment the fundamental law. The conferred legislature make the contracts of cannot officer to city, appoint it cannot do what it own cannot do appointee through made direct action. In this case the legislature Eodgees O’Bbien, Court, Opinion per Rep.] N. T. at least so far as it relates to employment rate

workmen and their The prevailing wages. must from its nature a of fact, very governed by question conditions and which the contractor circumstances over no control. cannot him to decide compel at him it at his question set peril by depriving rest by agreement employees.

But the statute also invades other various private rights directions. The local who are the owners, property parties that in the end bear the must of the expense improvement, are entitled to the benefit of best and discretion judgment officers in of the contract for the work. To city making the extent that such and discretion is taken judgment away in enactments not their in favor of by arbitrary interest, their constitutional interests, of and opposing- rights liberty are invaded. When the of the property expense improve- ment is actual and reasonable under beyond cost, enlarged business conditions, as be under the statute ordinary is taken without due 'question, of property process law. contractor is a individual private engaged (The business. When he enters into a fair private and honest contract for some that municipal contract is improvement, entitled to the same other property protection any prop- It is not for the erty. competent to deprive him of the of benefit this contract burden- by imposing some conditions with to the means of respect perform- the rate ance, or of which he regulate shall wages pay to his or to withhold the workmen, when price conditions are not such with in the complied judgment he When is not left free to select his city. own workmen terms as he such can upon they he is fairly agree upon, of that of action and deprived liberty accumulate right embraced within the property guaranties Constitution, since his" the free use of all his faculties the pursuit an honest vocation is so far. A statute which abridged.^ enables has entered into a contract city with him for of some work to receive performance public and accept Rodgees eel. ex [Ml, O’Bbien,

Opinion Court, per tli,e [Vol. fruits his labor and at the same time refuse pay rate that he omitted to ground to his asked all he workmen, they though all interfer- he would seem to be agreed pay, arbitrary ence not within legiti- liberty property, statute mate that the It not claimed sphere legislation.^ has relation to the morals, any health, public public the other within public safety, scope objects and it is a remarkable fact somewhat police power, learned this has counsel, who support appeal argued of this has for which statute, state attempted purpose it was but leaves that enacted, point wholly conjecture.

It could see how such impossible promote legislation true and not interests of the local or that'of the taxpayer, city tend to difficult to see how in its actual would operation' it is increase the cost of Indeed, local every improvement. all the law conceded ón the effect of sides been ew of R expense improvements refused to Tork. very ground upon was that the contractor did not labor per- pay enough mil- over six formed. If the claims referred to, aggregating lions must then that this law will of be it is dollars, ¡laid, plain that cost the sum without additional any correspond- The these claims would benefit. funds to necessary ¡Day ing than of for other Jfjnvolve money city purposes. expenditure would benefit ^It was no the law doubt, wage supposed^ it is not clear can if consider how we but earners, class of con- as a A law that restricts freedom of citizens body.' cannot servant tract on both master part Thajaw to forbids the benefit either. end operate is than a rate of other what from contractor paying 'although is willing rate the laborer ~called accept all occa- on It calls for the it. payment, practically, highest price, must' hence, market compel ; and, sions are workmen competent the contractor employ only makes no It rate of to i earn the very compensation. highest ^ of efficiency,and capacity the various allowance degrees Bodgees v. Colee. O’Bbien, Rep.] Opinion Court, ÍT. T. per that must exist in so always community. part large A less whatever person than his competent neighbor cause cannot be a uniform rate must be because employed without conditions of into account the taking varying life and a law Such degrees indeed capacity. may benefit for a time the favored few who possess largest to earn this view it capacity largest wages, said that it But survival the fittest. provides only the effect of the law all must those who are too young or too or for old, other reason less than competent must be neighbors, of all to secure deprived opportunity on all works in their employment respective callings, and so the of such check individual tendency legislation exertion industrial freedom. contractor suppress is not make only such contracts with deprived his workmen as would be mutually acceptable beneficial, he required selecting employees give preference to citizens of this state. Citizens of other states and resident aliens are thus to harsh' The citi- discrimination. subjected zens of each state are entitled all and immunities privileges of citizens in the several states under the Federal Constitution, still unnaturalized are persons protected by broad of international law. It is not principles necessary inquire how if at states far, all, citizens other rights seeking those of who have here, or aliens come here to employment their condition and improve to,earn an honest living, or restricted have not this statute. These ignored questions been raised or remark that it-reverses' and we will argued, only the settled of this from the earliest times. The state policy York Hew been to welcome policy only always citizens of our sister from abroad states, emigrants in all the and equal participation opportunities advantages its business If in and industrial life. indicated the policy statute and now under consideration had been formulated carried into a it be that half earlier, may operation century and of the state would not be growth subject progress it is of so all the much as as pride people gratifying 3 (cid:127) People Bodgebs [Feb.,

18 v. Colee. Court, per O’Brien, Opinion [Vol. now. These result from that have been conclusions principles often stated this court when paternal legislation Jacobs, 98 character was under re same consideration. (In N. Y. 99 Y. v. 98; Gillson, v. N. Marx, 378; People People 109 N. Y. 153 v. 389; 188; Colon v. N. Y. Lisk, Warden, N. Y. ex rel. v. Hawkins, 1; etc., 157 Tyroler from N. Y. be cited Numerous other cases 116.) might other the views tend expressed. jurisdictions support in and are referred to and of counsel briefs They quoted it is them to comment unnecessary upon generally.

These of statutes 'deal with cases, variety however, great in' th'e at consti line with one case bar. They involved to the tute a to the valuable contribution law with respect limits all of them statutes In scope power. legislative in from that under con no now essential differing principle were as in with constitutional sideration held void conflict feature in restrictions, express implied. prominent an the discussions is condemned legislation employer employee infringement them in some of enter into in their own contracts way, that such was was said attempt put legislation insulting was not under laborer tutelage only legislative to his but subversive of manhood, rights degrading' as. all be for the The statutes considered citizen. profess but was earner his wage rights, securing purpose them. The follow were subversive of shown they really condemned, thus are few the laws considered ing enactment in in line be seen that were all will they from An act withholding forbidding employers question: imperfections employees engaged weaving wages 155 Mass. An act to secure v. Perry, work. (Com. 117.) mines and certain manufactories the coal payment operators intervals and lawful at money. regular 113 Pa. v. 431; v. St. State Good Wigeman, (Godcharles v. & Id. Co., W. Va. Fire Creek C. C. 179 State ; 188.) will, An to miners employed act payment wages relating of coal mined. the basis (Ramsey quantity Rodg-ebs 19 Rep.j H. T. Opinion O’Bbieh, Court, per of the ant, 142 Ill. People, 380.) for provide payment ,An wages money system in and nroliibit the of truck stores and money to prevent deductions trom advanced except wages 171.) (Frorer v. 141 People, Ill. An act to provide weekly payment An wages by corporations. (147 66.) act it unlawful for in declaring persons engaged mining otherwise than in v. Loomis, money. (State Mo. A 307.) ordinance that laborers should enacting receive not less than and that $1.50 should dáy, per day not exceed rel. hours. ex (State eight Bramley Norton, Ohio N. P. R. The case cited last is not 183.) distinguish able from the at one bar. involves Indeed, very ques while it and is not decision of the tion, court of the highest it is based and the state, doctrines of the authority other cases cited and that seems to be reasoning at unanswerable. The case bar differs from these cases, cited from the courts of other in the circum highest states, only stance that here the has made use of legislature municipal corporations which were there con accomplish purposes demned. But it must be obvious what the legislature cannot do it cannot do cannot directly It make indirectly. use of its over powers to subvert municipal corporations rights and liberty Constitution. property guaranteed

Thq over authority compulsory municipal in to matters of concern corporations regard general duties which several localities owe to the people is state at control mat- large questioned. Legislative ters is while But complete. political governmental use made state and in corporations governments, state that character other control, have subject they objects at the state local, peculiarly purposes large, exercise, except conferring regulating than it is in the no more concerned individual and legally pri- and it from the citizens, vate concerns its several stand- state interest but local interest not of point cities and most of incorporating distinctly necessity villages With contract rights respect property appears. People Bodgees

20 ex eel. [Feb., Colee. v.

Opinion Court, per O’Bbiek, J. [Yol. interfere local to concern, state has no exclusively right and control the action of municipal by compulsory legislation The of the state at corporations. people through large, have no more to dictate to representatives, authority form which contracts shall framed or the its be that it shall an laborers than have to dictate to to they individual what he shall' drink or A eat, wear. municipal in matters and its corporation, affecting property private the same rights, enjoys practically immunity interference benefit of legislative private corporations or individuals as is accorded to business corporations pri vate 28 Detroit, citizens. rel. Park Comrs. v. ex (People 655; Mich. v. U. S. Loan Assn. 87 228; Topeka, [20 Wall.] ex W. R. R. Co. v. Batchellor, rel. & P. D., supra ; Weismer v. 64 N. Y. Board 91; Village Douglas, Ill. Education v. 441.) Blodgett, cited N. Y.

The case of v. State Clark (142 101), the views is not conflict with learned counsel, corporation that the this decided- was All that case herein expressed. to be to-declare statute state had compensation power in the absence its own to employees agreement to make con a different rate. But right providing less to whether for the greater tracts paid, compensation conceded than the rate, recognized statutory expressly that under the it is obvious Con throughout opipion, since the to could not be power abrogated, stitution right instrument is conferred upon super labor employ implies intendent of works. power employ the statute and while the' compensation, power agree made, was where no such was agreement applied cases conferred could not superintendent deprive v. ex rel. Killeen him the Constitution. (People under con The statute which was 109 N. Y. 564.) Angle, to interfere with in that did not sideration case attempt contracts; make to devote time that have been able’ In the brief we to con- examination this case, practicable would Rodgers O’Briek, Court, Rep.] Opinion, per N. Y. oí the all sider to determine the features of the law and special that are and those that are It will parts good objectionable. be sufficient for all of this case in so far that, purposes say as the statute invoked to shield the from the obligation relator the it is not valid due money him, for the reason that some of its material defense, most provis- are in ions conflict Constitution.

1. in Because its actual it operation permits requires of the of the or that of expenditure the local money city owner for other than property city purposes. in that l

2. Because invades rights liberty property it denies to the and the contractor tlie city right agree their their upon the measure of employees compensation, and/j in all them cases to and uniform rate compels arbitrary T] which is in difficult expressed to define or vague language, ascertain and to constant subject from artificial causes. change

3. Because confiscates all of the virtually property rights under contractor his contract for breach of his engagement and it statute, make acts obey attempts omissions in are which, innocent penal, themselves, harmless. It, a effect, imposes exercise or penalty upon city the contractor of the with their agree employees the terms and conditions of the employment. .We have seen that isit no answer already to the relator’s is claim to what due to him to that he has justly say consented contract that it should be forfeited to the in the event of'a violation of the city Labor Law. The ques- tion does not originate any agreement made, but voluntarily arises out of the and the or statute, validity invalidity is the enactment fundamental Neither the nor question. city the contractor had interest in these any stipulations. They are in the contract force mandate of the only by statute, unless had to frame the and, contract in is of no The respect, presence consequence. not maintain action for could for violation any damages these for the contractor, reason that stipulations by plain it was sustain impossible under cir- any damages eel, Rodgees [Feb, ex Laedoe,

Opinion per [Yol. "a cumstances. Those provisions part n element of lack the one most essential form since only, they the consent of contract, namely, parties. every or of a effect promise engagement- obligations legal statute, case, into a contract force of this imported or execute some obey parties whereby agree contracting law. law, Every validity depend entirely the law bound obey any express irrespective person he but does not incur to that effect, on part agreement or for breach of an obey penalty agreement liability cannot survive void law. Such promise agreement must fall with founded, it, which it since statute upon no existence from the consent it can have independent arising of minds. one would claim No parties meeting the relator from the of the contract that the terms precluded the law him for the work'but for what is due to recovery statute was to make it. The effect this is behind or instrument for enforcement a trustee it the whose benefit was in the interests of persons law thus the and functions of enacted, municipality powers to those for which they are purposes foreign employed and exist under Constitution. created were Division should affirmed, The order of Appellate with costs. I J. I O’Beies-. concur

Landon, opinion Judge considerations which I state some suppose think it proper pertinent: and the business has a capacity, city The governmental 1. does not to it. Its capacity incidental governmental capacity their shall servants, to the private persons extend wages fix such in its business it cannot capacity wages. and hence of his contract, care relator, part The taking The business. minding private exclusively engaged his failure to ren- him interfere except upon cannot city the work or of some connected der performance proper convenience safety. affecting requirement Bodgees Landón, Opinion per Eep.] R T. to hire and thus he free contractor,

Hence independent his own workmen as other may. person the state with a city 3. In business contracts .person, j on is on one contract and other.) side person Each should render to the other the equivalent. promised all the Here the contractor has rendered to equivalentj in* more it It ask for has to receive. cannot capacity behalf others,! behalf of assumes itself, grievance free' of whom it is neither nor trustee. They guardian ask a hear-' hear them when men. It will be they timely than the The thus asks for more equivalent prom- ing. j thrust is that it seeks to ised to it. vice of its j position to its con-' into business addition contract, subject-matter, j relations with other trol over contractor’s independent | It does- not hire his cannot servants, and, therefore, people. ! fix their wages. the kind 4. The like an contract for state, individual, may in a of materials to be furnished construction; quality given I otherwise not what wants. It false is, submit, get it has the like to dictate to the to assume analogy he shall his workmen. are not contractor They contract; to the it is not made for benefit; parties cannot them can- and, therefore, state directly give gratuities, do so much less contractor; indirectly through masked under the to contract. extortion Conceding sentiment of concern in the has benevolent state that sentiment no relation to matter of workmen’s wages, the contractor has deliver; agreed subject-matter it has claim of state has no none, contrary because for a certain kind of work basis. The contract calls just it is the relator. If he furnished of no more busi- it, Bodgers than the individual whether he to the state ness concern tooth furnished his workmen with brushes or meantime has them extra wages. paid a force which An officer is

5. personal part administers and makes its thinks, Con- acts, determines, state an arm of He is laws effective. stitution operative Rodgers [Feb., ex bel. v. Ooler. per Lakdoe, Opinion 166. [Yol. the state and on side. always laborer contractor, deals at arm’s employee with and is state, length always on his own side, to the but with state, necessarily'opposed his service no respect oath-bound but owing duty, simply the contractual as he has duty perforin do. The agreed state can fix the salaries will its officers, but no more than the individual fix can it will wages pay employees; — fix the can it will offer and its is to fix them wages policy — to secure the workmen high enough accejfiance by without such acceptance cannot fixed. wages They must remain matter of contract; to fix the rate, as it, includes low rate distinguished offering as well as a and thus becomes one, how- high despotic substance, ever dormant in exercise. When an contractor with independent t-he state or city his work on time, detail performed complete every free from contract, to. lien and incum-

according every if the state or brance, then, can him escape paying has not because he voted certain made ticket, contribution to a certain his workmen political party, more paid than work state can for, him they agreed compel his choose between or his natural losing earnings liberty make such honest contracts fellow-men serv- for their ices to make with him. To an inde- they willing deny contractor such others is to pendent liberty protect it, him the of the laws. deny equal protection enact that less than the To no rate prevailing wages T. shall such contractor is an indirect method paid from his those can earn who some- excluding employment he but not so since will not hire can- much, those who thing, the work of an not do able-bodied man. is admitted that the

8. It contractor less than the pre rate of Ro doubt that true if the vailing wages. highest rate best workmen is test. But what is the among rate % Is it the rate that the best work or the men or mass workmen, workmen, largest average can ? Does it ? If so, command depend upon ability Eodgebs v. Golee. Y., Rep.] Dissenting opinion, per 1ST. Parker, Ch. J. ? Or number’s? If is all

grade upon so, majority or of a class? And of a of which class,- class, why? if What have those who do not come within the dominant rights ? class Does it fair and demand ? depend upon supply Upon can ? How we tell Must ? we not conclude competition simply says prevailing1’rate wages a statute which is too meaning to be indefinite its made the test or condition a, or forfeiture? statute leaves doubtful penal When penalty pf denounces the accused hind act it to the is entitled Up benefit of the dnnM Ciat.n-h ami ^fist self-respect state from inflict doubt the out refrain should ing penalty. Ch. which the (dissenting). reasoning by

Parker, about be decision to made to be fails to sought supported me that it is than other encroachment persuade judicial for is that and less if the legislative prerogative; nothing statute does not offend either the Federal the State against If the Constitution. which seems to statute, be regarded by as in its some vicious tendency, attempted regulate ques- as between citizens tion state so to affect even basis on which one citizen should con- slightest degree then another, tract with not would much of the discussion only statute this has invoked which be but the relevant, decision to made would about sound. The unquestionably legis- intended lature, however, and the statute kind, nothing omits to it is so care- only express any purpose, as to leave no room doubt that the fully guarded legisla- the limits of ture, intended to and appreciating authority, with that those did who work provide simply certainty directly the state or within works shall receive upon public state, which be termed in which going wages locality work is carried on as will at once being any particular so statute, much of which as is reading appear to the under discussion set out in the question being germane facts. In other words, statement legislature, to direct the conduct of the business vested Rodgebs [Feb., 26 ex v. Colee. bel. .

Dissenting opinion, per Pabkbb, Oh. J. [Yol. the has declared of this statute state, operations by only n the it to be the the of state as to pre- policy proprietor pay several rate of but has its agents vailing upon wages, enjoined attack the of An this agencies duty policy. executing aas this the the state assails of statute, therefore, right who either as it chooses those proprietor wages pay (cid:127) work for it or work of construction directly, upon any which it bemay engaged.

ISToone has the an individual of presumed challenge if .either to rate or, of locality, wages he concludes to have his refuse to work done contract, award ato contractor who will not agree going to all that the work. bo wages employees may engaged upon But the state seems some as having regarded quarters less as a than an that so what power individual, proprietor individual contract to do in the of his own may performance itself the role the state not do when assumes work, the construction proprietor attempts important work. called the fact the statute

JSTow, attention to that having its terms is limited to laborers expressly employed in its some work of which state, entirety through is we thereof, subdivision come to ques- proprietor, . is tion whether there of either the Federal any provision that far restricts the or State' Constitution so power the state in or other public buildings constructing has action than one of its less works, liberty as as a least, citizens. That it much has, say of which its as individuals citizenship any proprietor seem a self-evident would to be comprised, proposition. is not that it not so But evidence regarded wanting must consideration. In have some others subject and after statute legislature provided by laborers the act day employed passage than two dollars should not be less officer state, thereof, It is difficult 380 of the Laws 1889.) day. (Chapter per born source idea have been from what could imagine Rodgers opinion, Hep.] Dissenting per T. Parker, N. Oh. J.

that this statute was in view the fact that unconstitutional, it was known of all men had fixed always of its compensation executive, judicial legislative and had officers, from the what provided compensa beginning if should tion, to all officers any, county the state. throughout Indeed, compensation every kind and character service of whatsoever had been always fixed either the or by legislature directly, through agencies created the it, source in all of cases original power being the there Nevertheless, were those who con legislature. the ceived absurd idea that there was some distinction between the for laborers and the compensation for day compensation all others in the service of the the and so engaged state, demand one of Clark, who was the for canals, employed Upon the fixed the was compensation and legislature, challenged came this to where the court, at finally was rest question put “ a unanimous decision, held that There is no or restriction to in implied be found the Constitution express the the of fix to the rate of declare power legislature be to for labor or services compensation paid performed upon the works the state. That is doubtless public legislation to criticism from the sound open standpoint policy but the courts have to do with these expediency, nothing as is so not in conflict with the questions long Constitution, we think that a law the general regulating compensation the of laborers state or under its employed by by officers which disturbs vested no or contract, was authority, the be enact, within whatever power legislature (Clark policy.” Y., its as to wisdom or said State N. Y. 142 N. 101.) it need not be if the Constitu Now, that, certainly argued “ contains no restriction the

tion the power legisla the rate to fix declare for ture be compensation paid the state,” or -services on works of the labor performed public in the is Constitution restrict the there nothing power “ in rate of the legislature declaring compensation or labor service on the works of be performed public Bodg-ees [Feb, Coles.

Dissenting opinion, per Pabker, Oh. J. [Vol. ” “ the state shall less not be' (in language statute) than the rate work in the same trade prevailing day’s in occupation within state where such locality public work in on, about or connection with which labor per formed, its final or form to be situated, completed erected or used.” if be have the So, we needed, authority of this court that authority provide of the state shall be policy rate of in which going wages public locality

work is to be done and to command its agents obey directions'in that For illustration: Were it now regard. in the erection of a new officer engaged capítol, officers having charge construction'by appointment under Clarh legislature, would, authority case, rate of obliged Albany, should if, course of construction, determined to do some contract, work was case part in last work those during year capítol, having the construction would he in the charge obliged provide contract that the contractor suould rate' of in Of a contractor would not be. course, Albany. wages a under such contract but accept terms; certainly obliged if do so he would wished the for the state as wrork, proprietor would have the terms it as choose impose might a condition of as an contract, individual awarding just do. Terms thus be which would be wise might imposed might or foolish for both the state and in very contractor, estimation of the latter it is the- ; but to be proprietor’s right if unwise he so in the state is wills, which respect perhaps with its on an citizens. both theory practice equality that he effect, provision requiring, should would, course, interfere going wages to hire men for lower a So liberty wages. provision a certain he must use brand cement which is no better more than other brands would interfere with his costs liberty first at a lower than the class cement brand named. buy price that some all of the cut A work out of provision figure Rodg-ebs ex bel. Rep.] Dissenting N. opinion, per Y. Pabkeb, Oh. J.

stone should be done workmen from would Italy, perhaps interfere with the at men less employment expense equal skill at.home who greater could do or better equally good and to that work, extent his to so contract as to make liberty without greater profit himself, injury proprietor, would be interfered is interfered with with; only because he assents to the wishes contracts proprietor’s that it shall be and hence his so, is not interfered with liberty at within all for he has sol Constitution; meaning covenanted in his emnly that he at shall not be agreement to do liberty the course anything performance contract that shall be to the wishes of the contrary proprietor in the written expressed contract.

I have to hear an yet offered argument any quarter for the purpose state as showing proprietor could not in the erection, of a new fix instance, capítol, to be its contractors, provide should sculptors come from its decorators from Paris, Italy, its stone from specific and its quarries Massachusetts cement from when England, better results could be perhaps obtained should residents of only this state be employed the material within purchased its own borders. But it is said that this statute further and goes applies only work undertaken the state at but also to large, pub lic works carried on in the several of the. municipalities state, case before particular out court growing contract made between the of New York and the relator, which the latter West 135th agreed regulate grade street in that from Amsterdam avenue the city Boulevard. of the state, in authority however, supreme part every itof and in all of the the state is the public undertakings For convenience proprietor. of local administration the state has been divided into in each of which there municipalities, be found local officers a may certain measure of exercising in but authority, which do are the but they they agents of the without state, to do a act the single beyond the set state boundary by acting through legislature. Rodgebs [Feb., Oolee. per Parker,

Dissenting opinion, Oh. J. [Vol. created Charters are of which to cities means given by crea the what are known as municipal corporations; the work of tion. is the for the of solely doing purpose crea state in the affected, particular locality the number tion of these designates agencies legislature called, of determines what shall be officers, prescribes1 they shall what each work particular portion municipal a method do, fixes compensation provides cler of assistance, which shall be a amount chosen proper time ical and from the work, otherwise, perform fields of labor to time restricts the or enlarges enact time several it also from time to special officers; ment of authorizes importance, public undertakings large of the char at the time of contemplated perhaps granting it. If the of ter or at the time of a revision legis general of a with lature dissatisfied working becomes general for it is one, it or create a new pos charter may change which the method sessed of authority provide supreme what and to determine affairs shall be conducted municipal If it shall undertaken. if shall be works, any, great of pure that the need of supply determine large city and wholesome water, legislature legislature, that result which may alone, machinery by may provide may In the be accomplished. doing the work the details of devolve the administration existence, officers the local already municipal wishes even without consulting another select agency the case as was voters city, either taxpayers which was the new .authorized aqueduct, building “ An act entitled 1883. The was 490 of Laws chapter and new dams reservoirs, aqueduct, new act to provide thereto, for supplying purpose the appurtenances and whole pure an increased supply York with of Hew the execution full authority It contained water.” some did was expected this vast undertaking, millions of dol York many very of Hew cost named in commissioners of six the direction under lars, Rodgers ex bel. Parker, opinion, per Y. N. Dissenting Oh. J. Rep.] devolved, and the the the both whom was act, power the the duty legislature effectuating purpose of course, The Constitution has, statute. expressed such, some restrictions power, imposed legislative shall authorize as that the instance, legislature con railroad without the construction of street surface cent of the sent of local authorities abutting fifty per or in lieu thereof the consent of owners, Appel property But the incor late Division of Court. Supreme prior into the Constitution, of such provision legisla poration ture and until 1850 exercised it, had the authorizing power, street surface the consent railroads without construction either the authorities as will local or the owners, property an referred to examination of statutes appear at v. Nassau N. Y. Railroad Ingersoll (157 page Company 466). instances almost multi

Similar without number be might all that the of which would serve as illustrations plied, merely state has absolute acting through legislature state, all control over works within the undertaken public and carried on with the work funds, whether the state at and that those by municipality large, who let the audit contracts, construction, superintend bills and are in such work but them, agents whether the of a be created state, provisions agency charter or enactment. If be needed authority by special Williams v. this be found support proposition, may U. S. At 310 the court “A (170 says: Eggleston 304). page is,.so far as its rela municipal corporation purely municipal of the state for tions conduct concerned, simply agency affairs and as such ing government, subject control legislature.” to the same effect also found in cases

Authority of which National BankN. this court Tenth Mayor (111 is a In that case the was Y. 446) type. question presented whether Rew York could be compelled by the Tenth Bank that it Rational moneys Rodgers [Feb, v. Oolee.

Dissenting opinion, per Parker, Ch. J. [Yol. had advanced without to the law commis- authority county sioners which were the bal- part them, misappropriated by ance of the used in the construction of the court moneys being ¡New house in York The act of the city. legislature requiring to the bank the advanced was moneys upheld in this in the course of court, and the court said: opinion “ ¡Municipal creatures of the state and exist corporations and act in subordination sovereign power. legisla- ture determine what raise and may moneys they may expend, and what taxation for municipal purposes may imposed; and it does not exceed its constitutional certainly authority when it which debt compels municipal corporation has some meritorious basis to rest on.”

Other authorities in which is in effect either proposition decided or asserted that a municipal corporation simply of the state for the conduct of affairs of agency govern to the ment, and, therefore, control of the subject in all as limited respects except expressly Constitution, are : In re Protestant School N. Y. Ter Episcopal (46 178); rett v. v. Taylor (9 Cranch, (16 Treadwell 43); Payne Cal. Jones v. Town Lake View Ill. (151 221); 663); Mayor, etc., Frederick v. Groshon Md. v. (30 436); Mayor, Groff Md. Frederick State etc., Bank v. City (44 Madison 67); 43); Ind. Paterson E. U. M. (3 City Society N. (24 L. ex rel. ; J. State Cleveland v. Board 385) etc. Finance, J. L. In re Dalton N. Pac. (38 259); (59 Rep. 336).

In the latter was case arrested for petitioner violating 114 of Laws of 1891 of the state of provisions chapter' Kansas, hours should constitute a provided eight work for mechanics and other laborers, workmen, day’s per- sons or on behalf of the state of Kansas, employed by or on behalf of or other munici- any county, city, township in the state. He to be relieved trial pality sought’ habeas that the act was through corpus proceedings, claiming unconstitutional. The court the statute was con- thought and in the course the court said: stitutional, opinion “ to its Whatever orders the state own may give directly Rodgees ex bel. Oh. Bep.] Dissenting opinion, per Pabkeb, 1ST.T. of its instrumen- subdivisions,

agents require political talities of said cities, counties, government, townships. These subdivisions are or civil merely involuntary political divisions of the created statute to aid adminis- state, ‘ tration of A is one the civil divis- government. county ions of a created country judicial political purposes, the the state its own without by will, sovereign power the consent concurrent action of the solicitation, particular who a which for the it; inhabit local people organization, of civil is invested certain func- administration, with purpose tions of existence.’ It has for been held corporate competent the a to establish state road and cast the cost and legislature thereof road which the lies with-

expense county out the consent the officers And, county. people in like build a certain manner, may to require county kind or number of at another bridges specified places, county build roads a and another to build particular locality, and for this other public buildings; purposes public counties other a could be municipalities required levy make other for the tax, of such provisions payment Indeed, improvements. everything relating manage- ment of cities and counties, not defined and limited townships the Constitution be taken by may state, away by acting its and as these divisions and through legislature; political has the same that it agents, power pos- sesses conclude, over state officers. We that the therefore, statute under consideration is a mere state direction and a its exercise of its in that agents, proper respect.” If the views so far it would sound, seem expressed follow that the taken state in this position by enacting statute is like that of an individual who for precisely rea- any son that if be a more determines little than as that honest, term is it is more than a usually employed, just pay it is worth, what fairly should thing principle well as labor to applied compensation pay- and hence that in ment for decides material, construction work S Rodgers [Feb., v. Colee. Parker,

Dissenting opinion, per Oh. [Vol. he will The state determined price. having .market such a course of statute, action .this directs agents wherever the state be situ- agencies, throughout they ated, that a work shall pay doing they work, whenever the work is to be done going wages by day’s and whenever it is to be then the done contract, agent, wherever shall into the contract that executes situated, put of the state a that the shall contractor authority provision such rate.

There are no authorities in this state militate against that I have as there taken. On the position contrary, (7 Hun, 120) Warren it. In support defendant had been before charged police magistrate violation of section 504,' 105 of Laws of 1891, chapter “ entitled An act to revise of Buffalo.” the charter of things, That charter “in provided, among-other contract to .ha-done work tlm clause required city, ing shall be inserted that the.fiontra.ntor submitting proposalslshaTl performance work .nnt^to-d.is^ of such HimXhimself wages against ofL either as to members workmen or criminate eight or to hours as more than laboroi’ganizations. accept conRp.cntlg&.b.0LURfi.” performed nine work, a to be within day’s The an taken defendant been was convicted, appeal having the fifth was General where the Term, argument department, made that the statute was because unconstitutional offending 14 the article Constitu section 1, against provisions - States, 1, tion of the of section United and of provisions It article Constitution of the York. State Hew held constitu unanimous that the statute was was court by tional was affirmed. Subse conviction judgment an unsuccessful was made to secure different quently attempt writ of result of a habeas instrumentality corpus. through I take an extract from the which was written by opinion, it is in next because on proposition Judge point Hatch, “ an is It is defendant that I discuss. said propose have the rules we contractor and consequently independent con- to the case. If this were no invoked have application ' Bodgees . ex bel. v. Colee. Pabkeb, Rep.] Dissenting opinion, per N. Y. Oh. J.

ceded it But not be to answer the claim. might possible the assertion as I is far from itself, view facts, being true. In the sense that is work for defendant doing of Buffalo to furnish all material and labor city it is a sum, for a fact. making improvement given But it is relived from the state imposed obligations not true as of Buffalo and assumed city * * * matter of law. said to the defendant to all other contractors when invited bids for the per formance of the the statute is one of the conditions work, which must an with and which must be complied obligation assumed The defendant was not contracting party. to bid. The conditions obliged imposed applied equally all who should bid. The act of was full knowl bidding Under these defendant edge conditions made voluntary. its bid and when awarded the contract executed voluntarily same assumed the imposed obligations the statute. How can it he be said that was an independ ent contractor, freed % He was an obligations independent contractor, but he is not independent obligations the contract.” rel. imposed by ex Warren Beck, (People 10 Misc. Rep. 77.)

It should be said to the before consideration of also passing the contract that the before this whom matter came at judge Term was of the "that Special the act constitutional, opinion and while there awas difference of view the Appellate Division as to certain not one of that questions, judges court the state so far as directed expressed opinion its insert in that the the contract agents provision pre- rate of should be its acted vailing paid, power. beyqnd in the it is said : “I am Indeed, satisfied prevailing opinion .the, power proscribe that the of .form con- legislature fe„madah-Y_-mTOlcipjLJCQrn.oi,ations_.with Tiracirwffich shall those into Ho is contracts it. one bound entering ebhUThU"¥iTcira contract or to do for a work cor- municipal but when he he does must the terms of the poration, accept contract as and if he makes a law, prescribed by voluntarily Bodgees [Feb., opinion, per Parker,

Dissenting Oh. J. [Vol. of which he is to receive condition upon pay only his he certain or work doing agrees performing obligations to do in a certain the cannot com- contractor certainly way, if the refuses to plain except upon compliance with the terms of the engagement.”

Since the there has evolved the notion been argument the few the constitutional limitations the state upon power to control at affairs of will action all the through legislative the in the some out contention municipalities, way helps that the state is not the the majority proprietor grading construction of the It seems to me street question. the effect of the if these is to rule, prove proof exceptions that the state it can do what chooses needed, respect pub- lic the whether within borders, improvements anywhere limits in the rural sections affected be within or territory the limi- that it does not transcend the state, provided only tations that the have seen fit to that power people place upon means the will be Constitution. That instrument in vain the searched restrictions the upon or improve legislature grade highways. for the over streams may provide bridges separat- building at towns, or or both. It do this counties, may expense ing at or of the towns or of state, affected, expense or the in such counties, adjoining expense maybe apportioned manner as the state It roads sees fit. build improve may imme- at the of the state and the more joint expense locality benefited the construction of the road, diately part individuals be assessed may expense upon property cities may abutting upon improved highway; and the entire determine to have streets graded improved assessed which property expense neighborhood assess benefit by improvement; may supposed the cost the entire sum between city,.or apportion But however moneys two. necessary state raised, of such an expense improvement selects that authorizes agency by improvement, determines source from which it is conducted. and alone Rodgebs ex bel. Eep.] E. T. opinion, per Pabkeb, Dissenting Oh. J.

tlie needed to shall money and its come, pay expense power in that has no limitation whatever. respect discuss a which is not prevailing opinions question up whether the decision, has the namely, legislature power that the provide authorities shall to their municipal pay As employees the-discussion which that going wages. ques- tion has received is, I shall not refer to my opinion, obiter, it further than to that I dissent from the views say expressed in relation thereto on the the statute offends no ground of the Constitution when it provision undertakes to provide that the shall rate those prevailing who work for it. Who denies the of the power legislature fix the rate of for the compensation mayor, comptroller, police commissioner, clerk, attendant 'and mes- ? If one does I senger have not heard him. Why may it not then fix the rate of of the compensation engineer of its charge its skilled heating apparatus, ventilating mechanics or its street ? Where the Constitution sweepers is to be found the that so discriminates provision between the classes into which the service is divided as to allow the provide certainty stability compensation as to the one and denies a similar as to the other ? My attention has not been called to such a nor have I provision, been able to find it after search. diligent

I have considered the constitutionality statute, because it has been as I think insisted, that the erroneously, feature of the statute which is in here is controversy uncon- But on stitutional. the other if, were hand, to be conceded that it is tin's I do not see unconstitutional, how it could avail If the contract relator. were silent on the and the subject, was that the claim made contractor could not recover for work he because had not with the performed complied provisions the statute contractors to requiring rate of prevailing then he be in would to attack wages, only position but an statute, that it constitutionality was adjudication would relieve him unconstitutional from the necessity pay- rate of But that is not this wages. case. ing Bodgebs [Feb.. ex bel. Golee. v.

Dissenting opinion, per Paeiceb, Oh. J. [Yol. In it is the contract between the and this relator agreed in terms as that the for a work, be paid legal day’s “ all workmen hereinbefore classes of such laborers, defined, material or mechanics all such or work, upon public upon any less used or in shall not be connection therewith, upon the trade or than the rate for a in same work day’s prevailing where such the within the state locality occupation work with which about or connection labor on, performed, form, erected or in its final or is to be situated, completed “ that this con- used.” And it was further terms agreed or cor- and of no effect unless the tract shall be void person the same shall comply poration making performing that not terms the of the Labor Law.” So only provisions rate of the did the contractor wages, prevailing agree in effect made the also provisions agreement Labor Law a contract. part the statute was unconstitutional not, Whether, therefore, this relator from was consenting there nothing prevent the statute into the incorporation phraseology that and executed when he did and, voluntarily contract, as an as in this he cannot contract, case, effectively plead inasmuch as cer- that, of his contract for the violation excuse in a when statute, are void embodied of its tain provisions into a voluntarily- are also void when incorporated they contract. executed that of the ApipelIate--&iwi&ÍGn--ag-i?eed

Whjile tha.majority provided was constitutional in so far foii-the— statute wages,,and also rate of "payment he enti- cbntract, executed voluntarily TelatorTTTaving condition of for work done only tled to payment were of opinion still they stipulations, performing the officers of a "mandamus because entitled to was the relator avoid the failed to had the municipal corporation the institution proceeding. prior in this was respect, wrong If conclusion majority at succeeded Special that the defendant rightly conceded they I was clear wrong, as it seems to be very Term, and, Kodgees ex eel. opinion, per Parker, Rep.] Dissenting Y. Oh. J. N.

shall of the reasons, content with brief presentation myself and shall omit all also discussed, reference to question, whether contract became void direct operation statute the contract and its conceded breach. If statute court result, purported accomplish that it I shall not con- be unconstitutional. But thought might sider whether it does to result or accomplish purport if it would offend the whether, Constitution, did, against as I view the is not before us. for, it, question Certainly this if what the cannot affect the of matter disposition comp- did to the I troller avoid contract. It is because operated that the think he did all situation order to enable required the relator’s of the the to take breach con- advantage that me to different result than that reached tract leads by alike the we on constitu- Division, the agree Appellate so as it is of the far involved statute, proceed- tionality the contract. effect of binding every provision ing that It is not to admits the easy appreciate argument contract; violation relator; by validity open that is clear that concedes provision unambiguous null the event of such declares shall be and void a viola- and still contends that a be had in the face tion, recovery defense that by method, viz., urged every legal recover because contract become relator cannot void his act. was What act it do necessary comptroller the defense the relator had fur- to take order advantage first refuse to nished other than afterwards that the contract was void, on the owing defend ground It has not been has been violation it, relator’s suggested. that the doubt, no comptroller, found easier, say out than to had to do point thing fiscal officer, something he had to do. which entitles the violated

It is relator’s agreement that no effect. this contract any to claim longer defendant this that relator comes into court it must not be For forgotten contract he has violated the by failing admitting Eodgebs [Feb, ex bel. Ooleb. opinion, per Parker, Dissenting Gli. J. [Vol. rate of as he his do, agreed contract he that the effect of his failure to do so should agreed cause the contract to and of no effect. become void a mandamus the relator entitled to argument because he had not avoided con- against comptroller tract me with- before this was seems to instituted, proceeding out It that the was force. appears affirmatively comptroller until, not informed that the relator was violating the 19th and that he set on foot inves- 1900, day April, for the the truth of the matter tigation purpose learning thereafter, the result that the information immediately him received was confirmed. certificate made Eow, fully the commissioner of to the correctness highways certifying a balance relator’s to secure account, due, showing for which this was warrant was dated instituted, proceeding after four 23rd, 1900, was April only days comptroller first advised him act the rela- suspect leading tor these facts it is was contract. From violating apparent that there was situation to the conclu- nothing justify him sion that the allowed on his with work comptroller go after on the it was knowledge part comptroller that his to avoid the on within contract behalf of the munic- (cid:127) it is that On. the no ipality. contrary, apparent part work for which a warrant is claimed was after the performed of the relator’s default. This knowledge pro- comptroller’s instituted about three weeks was afterwards, ceeding it is manifest that far as this hence so claim is concerned the relator has the conduct of the nothing complain comp- that a without of that troller, admitting, complaint assuming, have character could value towards any legal restoring general to life a void contract. was

This instituted proceeding against comptroller he refused to deliver to the relator a warrant for the because of the certified account. The set amount reason for is up is in his effect the relator had executed return, he had that in the event of a contract his agreed certain of its terms the con- perform and.conditions, failure to Bodgebs ex bel. IIaioht, opinion, per Rop.] Dissenting J. N. Y.

tract should that he had failed comply be void; is void city and that hence terms, that the if else comptroller liable. there How, anything rid order get was bound to do under the circumstances a contract due under the amount claimed to be paying out. He that had it has not been void, become pointed after the commencement resisted both before and payment had become that the contract on legal proceedings ground is all and that void of the conduct of the contractor, because he relieve the was to do order to making city obliged further under void contract. payments at

If the facts as assumed the learned were judge that the authorities with Division, Appellate city knowledge of the violation of a authorized the contract which treat as void nevertheless the contractor to go permitted on with work which the amount was earned, question well that a court of would undertake might very equity to relieve a from the result loss would otherwise party on the that it was the officers ground duty not to hide intentions for the speak purpose work for out of the contractor. But those getting nothing considerations have no in a mandamus, place proceeding where the can relator succeed clear only by establishing legal which he demands.

I advise reversal of the order of the Division Appellate and an affirmance of that of Term. Special If the Labor so Law, called, (dissenting).

Haight, that the construed be properly opinion may prevailing wages provided reached is If the conclusion justifiable. laborers has reference to...those paid statute to be only life, full

"who are in the and in the prime possessiormoL powers, physical then its effect be to exclude from their livelihood, and the means earning laborers employment partial prime life, have and have who suffered a passed _thus of their create a class physical powers, and impairment —Q Rodgers ex bel. [Feb, opinion, Haight,

Dissenting per [Vol. _ objectionable distinction which is not vicious. I, only do 'however, tliat the statute should such a receive tinnJc construction. It first fixes the shall number hours that be “ deemed a and then day’s work, legal provides to be for a work as paid hereinbefore legal day’s defined to all classes of such laborers, workmen or mechanics all such or material public works, to be or used, in connection shall therewith, not be less than th%prevailing for a rate work trade same or in the day’s occupation within the state where such work about locality on, or in connection with which such' is in its final labor performed is to be erected It will completed form, or used.” be situated, ” “ observed the statute relates to all classes of expressly laborers. This includes old and as well as the young, their, middle and those the full aged possession powers. it is But claimed that all must be the same they paid wages per and that this will to exclude from day, operate employment all those wThohave are unable who passed prime as much labor as' those who are perform strong but such does not to me the mean to-be vigorous; appear It statute. does not that each laborer ing provide sha,11 they . shall same It paid wages. “ ” “ prevailing What The fien rate.” is the rate \ prevailing ” “ “ Dictionary defines word tury prevalent; current, common.” is the current; general; It prevailing, general is the In words.'it common rate. other market rate worth. or that which the services fairly reasonably therefore, must, wha.t his services are Eachlaborer be paid locality. in that worth market If he is in the prime in the full life, of his manhood and able vigor perform he full work is entitled receive the value day’s large If thereof. lie'has conse passed prime vigor so still cannot earn much he is entitled receive the quently value such services as he is If the able perform. pre or the market rate means reasonable value, vailing it, absence of a rate, fixing expressly just which a of law award as court would in an amount damages Rodgers ex bel. n opinion, Rep.] Dissenting per Haight, N. Y.

action to recover services to this extent rendered, is but the re-enactment a of the common provision part this law. Under construction of the statute there is nothing its that is harmful. It or provisions objectionable merely to the that which he laborer earns and more. gives nothing is what It morals demand. It renders only justice good the servant that which is and does not his, properly deprive state or of its or municipal governments any money it. It be that statute was belonging property intended to of contracts the rate prohibit making fixing at a than that less sum which the labor was wages fairly but I know of no of the worth, Con reasonably provision either Federal or State, which stitution, prohibits legisla a ture, from sustaining just public policy, enacting'that state or or contract municipal thereof, persons governments therewith for the shall performance work, ing public not, contract or take otherwise, of the necessi through advantage ties of the classes and them to take poor laboring compel less than their services employment fairly worth in the reasonably locality.

The statute under consideration contains a clause requiring contracts for the work to making public persons doing a in the contract insert provision requiring payment at the rate. laborers can- Possibly not indirection that which is accomplish through prohibited if am I correct in directly; view, doing my legis- lature a direct may, part public policy, by provision, full value of services ren- require payment the state division dered to or or thereof, upon any works therein. This view of the is an statute answer the contention that authorizes the appropriation aof other than city money property government city who for a The laborer work performs city govern- purposes. works of the ment upon public city value receive the of his services and so rendered, entitled him a sum as the required greater long and such is not an is for purpose, payment payment People Kennedy Beady. [Feb., ex bel. 44 v. n of case.

Statement [Vol. for other I favor a reversal of appropriation purpose. the order of the Division. Appellate concur with Vann, JJ., and Lan-

Bartlett O’Brien also don, JJ., O’Beien, J., concurring Landon, J., affirmance, and concurs witli J., J.; Martin, O’Beien, Oh. read J.,- J., opinions. dissenting Parker, Haight, Order affirmed. People of New York ex rel. James F.

The of the State Commissioner Respondent, v. Kennedy, Thomas Brady, for the of Manhattan and the Bronx, Buildings Boroughs Appellant. City — New York When Certiorari Not Lie Will to Review Department Buildings.

Removal of Subordinate in The removal, by department the commissioner in buildings York, position holding competitive of a subordinate subject New Law, opportunity examination under the Civil who has an Service had explantion, make an where the reasons for the removal are stated in writ- ing, department in entirely are filed their face are sufficient it, character, justify is, judicial is not a act in nature there- fore, not reviewable certiorari.' People Kennedy 279, Brady, App. ex rel. v. Div. reversed. 1901; (Submitted February 26, January 8, 1901.) decided Appeal from an order of the Division of the Appellate Court first entered Supreme judicial department, Sep- on certiorari the tember determination of 26, 1900, reversing the defendant relator from the position removing of New department messenger buildings him in that York and reinstating position. material,

The so far as are stated facts, opinion. John Counsel Whalen, Corporation (Eugene Otterbourg commissioner of appellant. buildings counsel), them subordinate officers and remove appoint opportunity making explanation. being given (L. ch. ex rel. 1897, 1543; 378, 648, Campbell, §§ Div. 82 N. Y. ex rel. v. 247; 483; Cruger, App.

Case Details

Case Name: People Ex Rel. Rodgers v. . Coler

Court Name: New York Court of Appeals

Date Published: Feb 26, 1901

Citation: 1901 N.Y. LEXIS 1236

Court Abbreviation: NY