10 Misc. 77 | Superior Court of Buffalo | 1894
Lead Opinion
When this case was before the general term of the-supreme court on an appeal from the judgment of conviction, that court reached the conclusion that the statute in question was a valid exercise of legislative power. People v. Warren, 77 Hun, 120, 28 N. Y. Supp. 303. I concur in that opinion, and would not now deem it necessary to add anything further to the discussion did not my associate take a radically different view of the question involved. I do not understand that the views expressed by the supreme court respecting the obligations and rights of employer and employé and the relation of each to the state are questioned. But the claim is that such rules have been misapplied. It was decided in U. S. v. Martin, 94 U. S. 400, that the government had the right to determine the number of hours which should constitute a day’s labor for its employés, and that a statute which fixed the number of hours was to be regarded as forming the basis for all labor contracts made with the government, and constituted a direction by the government, as principal, to its agents. The statute then under consideration did not prohibit a contract for more hours of service in a day, and ffik was held that such was not its intention; that no change in the law respecting the right of parties to contract was contemplated^ and that a contract for more hours of service than the statutory period was valid. The importance of the decision, as applied to the facts here, is the recognition of the right that the government Ms the power to determine what hours, for it, shall constitute a day’s labor. The principle did not need an authority to support it, but iff was made more sure of application by judicial recognition. If the government has the power of determination in this regard, them IS must follow that it has also the power to make its determination effective, and provide by penalty the enforcement of the law. This is the ordinary and frequent exercise of governmental power. Consequently all agents of the government become subject to the penalty if they infringe the law. Does this in any wise interfes®
It is said that defendant is an independent contractor, and consequently the rules we have invoked have no application to the case. If this were conceded, it might not be possible to answer the claim. But the assertion itself, as I "view the facts, is far from being true. In the sense that the defendant is doing work for the city of Buffalo under a contract to furnish all material and labor in making a public improvement for a given sum, it is the fact; but that it is relieved from the obligations imposed by the statute upon the city of Buffalo, and assumed by it, is not true as matter of law. Had the city itself performed this work, it would have been within the rule we have announced, and subject to the obligations imposed by the law. How can the defendant plead exemption from such statute, when it has voluntarily, in terms, incorporated it in its contract, and agreed to be bound by and carry out its terms? The city said to the defendant, and to all other contractors, when it invited bids for the performance of the work: “The statute is one of the conditions which must be complied with, and an obligation which must be assumed by the contracting party.” The defendant was not obliged to bid. The conditions imposed applied equally to all who should bid. The act of bidding was with full knowledge and voluntary. Under these conditions defendant made its bid, and, when awarded the contract, voluntarily executed the same, and assumed the obligations imposed upon the city by the. statute. How can it be said that he was an independent contractor, freed of obligations? He was an independent contractor, but he is not independent of the obligations imposed by the contract. He has chosen to substitute himself in the place and stead of the city in this regard, and therefore becomes subject to the same obligations and duties which the law imposed upon it. Defendant, by bidding and accepting the contract, became the recipient of all the benefits which accrued therefrom, and he should not now be heard in repudiation of lawful obligations assumed thereby. It is said in Bertholf v. O’Reilly, 74 N. Y. 517:
“A party cannot object upon constitutional grounds to a liability which he has voluntarily assumed, in consideration of a benefit conferred; and ■one may renounce even a constitutional provision made for his own benefit.”
Dissenting Opinion
(dissenting). The Barber Asphalt Paving Company is a West Virginia corporation engaged in the business of paving streets in the city of Buffalo, under contracts with it, and the relator is the superintendent of the paving company. In the fall of 1893 the paving company was paving Delaware avenue, one of the public streets of the city, under a contract with the city, which, in compliance with the charter, contained a provision that the company should employ only citizens of the United States, or those who had legally applied for citizenship, and were permanent residents of the city of Buffalo, as laborers in paving said street; and, further, that it (the company) should not accept more than 8 hours as a day’s work to be performed by its laborers within nine consecutive hours; and, further still, that it would not employ any man or set of men for more than 8 hours in 24 consecutive hours, except in case of necessity. The relator hired and discharged the laborers of the company. During the progress of the work he hired one Brown to work, and Brown did work for the company as a laborer for more than 8 hours in 9 consecutive hours, and for more than 8 hours in 24 consecutive hours, to wit, for 10 hours in 24 consecutive hours, and not in a case of necessity. The relator and Brown were both citizens of the United States, and permanent residents of the city of Buffalo. It is for thus employing Brown that the relator has been adjudged to be guilty of a crime, and is now suffering imprisonment. As the charter prescribes no penalty for its violation, section 155 of the Penal Code, as the respondent claims, characterizes the offense as a misdemeanor. The sole question presented for our consideration is whether or not the provision of the charter above referred to conflicts with our national and state constitutions. The constitution of the United States provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; and our state constitution provides that no member of this state shall be deprived of any of the rights or privileges secured to citizens thereof, unless by the law of the land or the judgment of his peers. ¡Neither instrument defines in terms all the privileges and immunities possessed by citizens, nor will the courts attempt to define them in any general way, but will deal with each case on a consideration of its particular facts when it is presented. Conner v. Elliott, 18 How. 591; 2 Story, Const, p. 085. The rights and privileges thus guarantied, but not defined, therefore, are not created by, but exist independent of, constitutional law. The provision that no member of the state shall be deprived of such a right or privilege, except by the law of the land or the judgment of his peers, means only that it cannot be taken from him, nor be declared forfeited, without a proceeding for that purpose, conducted in accordance with the forms and methods and by the means prescribed for the enforcement of law. ¡No such right can be taken from a
We think it is common knowledge that the great mass of our citizens who represent the bone and sinew, the intelligence and patriotism, of the nation, labor more than eight hours a day in the “ordinary callings of life;” that the great majority cherish the privilege so to labor as above all price, and may rightfully regard any abridgment of it as an infringement of their right. If the business of laying pavements in our streets can be said to be nocuous, or that, if it is not regulated and controlled by the legislature, the lives, health, or welfare of those engaged .in it, or the welfare in general of society, will be endangered thereby, it.will be exceedingly difficult to name any calling of life that should not be thus regulated and controlled. With equal propriety such legislation may be extended to all classes of workers, and for all practical purposes that
In considering this case upon its merits I am not unmindful of the fact that our supreme court has held the legislation in question to be
“By means of the statute in question the hours of employment of laborers on contract work for the city of Buffalo are fixed on the part of the city, and it remains for the laborer seeking employment to accept or refuse those terms. If he insists upon working more than eight hours a day, he may seek other employment, either for the whole or for the excess of his time. His liberty of choice is not interfered with, nor his right to labor infringed.”
The sense of the statement is that, because a laborer is not compelled to work in the field referred to at all, unless he voluntarily chooses to do so, his liberty of choice is not interfered with, nor his right to labor infringed. The conclusion reached does not seem to me to logically follow the premises upon which it is based. By the charter the contractor is prohibited, on pain of fine and imprisonment, from accepting more than eight hours as a day’s work; and the laborer is prohibited, under a like penalty, from working more than eight hours a day. In exercising their liberty of choice, Brown worked, and the relator accepted, more than eight hours a day as a day’s work; and it is in consequence of having' exercised their liberty of choice that the statute has been violated, and the relator is imprisoned. How, then, can it be said that the liberty of choice has not been interfered with? To say that Brown was at liberty to find work in other fields does not, as it seems to me, meet the case. His right is to labor in fields of his choice, so long as his employer chooses to employ him there, and he does not interfere with the equal right of others. The statement of the case by the supreme court itself makes it plain to my mind that the liberty of choice as to the relator and Brown is interfered with by these provisions in the charter. The only authority relied upon by the supreme court