193 A.D. 135 | N.Y. App. Div. | 1920
Lead Opinion
Defendant upon conviction was sentenced to pay a fine of twenty dollars which fine was paid. The defendant appeals from such conviction, claiming, first, that certain articles manufactured and finished, to wit, babies’ bibs, were not wearing apparel within the provisions of the statute. The appellant also contends that the statute itself is unconstitutional as discriminatory and denying certain classes of people, and particularly the defendant, the equal protection of the law guaranteed by section 1 of the Fourteenth Amendment to the Federal Constitution.
Section 104 of the Labor Law (as amd. by Laws of 1913, chap. 260), for the violation of which the defendant has been convicted, provides as follows:
“ § 104. Manufacturing of certain articles in tenements prohibited. No article of food, no dolls or dolls’ clothing and no article of children’s or infants’ wearing apparel shall be manufactured, altered, repaired or finished, in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person, in a tenement house, in any portion of an apartment, any part of which is used for living purposes.”
The penalty imposed upon the defendant for the violation of said section is provided by section 1275 of the Penal Law (as amd. by Laws of 1913, chap. 349), which provides that any person violating a provision of the Labor Law is guilty of a misdemeanor and upon conviction is punishable for the first offense by a fine of not less than twenty nor more than fifty dollars. Upon defendant’s conviction the minimum sentence provided by said law was imposed.
The evidence shows that the defendant had a factory at 2292 Arthur avenue, borough of The Bronx, New York city,
It is the contention, as before stated, of the defendant, appellant, that the articles in question were not articles of “ infants’ wearing apparel ” within the meaning of the statute; and, secondly, that if the statute can be construed as applying to the articles in question, to -wit, babies’ bibs, it is ■unconstitutional.
The law is of course, enacted as a health measure, for the protection of the health of infants, and the very purposes of the statute have been violated by the acts of the defendant in the case at bar. There can be no question but that the bibs which the defendant was manufacturing were articles of wearing apparel. The cases are many holding that similar articles are wearing apparel, and that wearing apparel is not confined to clothing, hats and shoes, but that any article intended and adapfied to be worn on the person and necessary and proper for the protection of the person or for the person’s personal comfort comes within the definition of wearing apparel. There can be no question but that the bibs manufactured by the defendant were to be worn as a part of the apparel of infants. A thin lace collar to be worn on a woman’s neck has been held by the courts to be wearing apparel, although worn merely for ornamentation. (Matter of Evans & Co., 158 Fed. Rep. 153; Arnold v. United States, 147 U. S. 494; Matter of Steele, 22 Fed. Cas. 1202.)
The appellant devotes a large part of his brief in an attempt to argue that the bibs manufactured by the defendant were not wearing apparel. It seems to me that the proposition is too. plain to require any extended discussion. The articles themselves, as before stated, are worn by infants and a contract made for their manufacture in tenement houses and in unclean surroundings comes directly within the intent and meaning of the statute.
As to the constitutional question upon which the defendant
However, it seems to me that section 104 of the Labor Law was entirely constitutional and a valid exercise of the police power of the Legislature. It was enacted purely as a health measure in order to protect the health of children, a matter of the utmost importance. The statute reads that “ No article of food, no dolls or dolls’ clothing and no article of children’s or infants’ wearing apparel shall be manufactured, altered, repaired or finished, in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person in a tenement house, in any portion of an apartment, any part of which is used for - living purposes.”
The appellant raises the point that the statute is discrimi- ■ natory in that it prohibits the manufacture in tenement houses of the articles of wearing apparel for infants only in cases where such manufacture is for a factory, and that under the statute an individual not a factory would have the right to engage in the manufacture of such articles in the prohibited places. I do not think the statute is susceptible of the interpretation which the defendant attempts to put upon it. By section 2 of the Labor Law (as amd. by Laws of 1917, chap. 694) a "factory” is defined as including "any mill, workshop, or other manufacturing establishment and all buildings, sheds, structures or other places used for or in connection therer with, where one or more persons are employed at manufactur- ■ ing, including making, altering, repairing, finishing, * * * . any article or thing, in whole or in part, except dry dock plants engaged in making repairs to ships,” etc. Further, that “ work shall be deemed to be done for a factory within the meaning of this chapter [Labor Law] whenever it is done at
I think that a statute of this sort should be most liberally construed to carry out the evident purpose of the Legislature, and that it is our duty if possible in the interest of justice and of humanity to affirm the conviction of the defendant.
It is also the claim of the appellant that section 104 of the Labor Law should be read in connection with section 100 (as amd. by Laws of 1913, chap. 260) which provides that no tenement house nor any part thereof shall be used for manufacturing, altering, repairing or finishing any articles except for the sole and exclusive use of the person so using any part of such tenement house or the members of his household, without a license therefor as provided in article 7 of the statute, but that nothing therein contained shall apply to collars, cuffs, shirts or shirt waists made of "cotton or linen fabrics that are subjected to the Iaundrying process before being offered for sale. Defendant contends that this section should be read in connection with section 104, and "where it appears
I do not think there is anything in appellant’s point that the statute (Labor Law, § 104) deprives the defendant, appellant, of liberty or property without due process of law. (U. S. Const. 14th Amendt. § 1. See, also, State Const, art. 1, § 6.) As before stated, the statute was a legitimate exercise of the legislative power for the purpose of protecting the health of infants. (People ex rel. Nechamcus v. Warden, etc., 144 N. .Y. 529.) “ When the sole object and general tendency of legislation is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property.” (Matter of Viemeister, 179 N. Y. 235, 238; Health Department v. Rector, etc., 145 id. 32.)
The argument of the appellant that the statute discriminates against citizens of New York in favor of those of foreign States is without force. (Conner v. Elliott, 18 How. [U. S.] 591; Paul v. Virginia, 8 Wall. 168; Slaughter House Cases, 16 id. 36.)
It seems to me that section 104 of the Labor Law is a valid exercise of the police power by the Legislature. The bibs in question were wearing apparel within the meaning of the statute. The defendant should not be permitted to escape or the statute to be circumvented through technicalities in the nature of those raised by the appellant.
The judgment of conviction should be affirmed.
Clarke, P. J., and Dowling, J., concur; Laughlin, J., dissents.
Concurrence Opinion
I concur with Mr. Justice Laughlin that the defendant can raise the question of the • constitutionality of the statute in this court. A criminal conviction of an offense arising under an unconstitutional statute would be contrary to law, and this court is empowered to reverse such a conviction. I
Dissenting Opinion
The appellant has been convicted under section 1275 of the Penal Law (as amd. by Laws of 1913, chap. 349) for violating the provisions of section 104 of the Labor Law (as amd. by Laws of 1913, chap. 260). He was the proprietor of the Belmont Embroidery Works, 2292 Arthur avenue, borough of The Bronx, which concededly was a factory within the contemplation of said section 104 of the Labor Law, and as such proprietor he contracted with one Theresa Arena to finish twenty-four dozen babies’ bibs, at her apartment in a tenement house, at No. 2540 Cambrelling avenue, in the borough of The Bronx, and they were manufactured by her for the Belmont Embroidery Works pursuant to said contract, in her apartment which was used for living purposes. It is quite clear, I think, that these bibs constituted wearing apparel for children or infants within the provisions of said section 104 of the Labor Law. The facts plainly bring the case within the prohibition of said sections, and I have no doubt but that it was competent for the Legislature, under the police power of the State, and as a health measure, to prohibit the manufacture of such wearing apparel in a tenement house apartment used for living purposes; but I am of the opinion that the section is unconstitutional and void on the ground that it only prohibits such manufacture of wearing apparel “ for a factory,” and such manufacture for department stores, and others, not having a factory, is not prohibited. A “ factory ” is defined by section 2 of the Labor Law (as amd. by Laws of 1917, chap. 694) as follows: “Whenever used in this chapter: * * * the term ‘factory’ includes any mill, workshop, or other manufacturing establishment and all buildings, sheds, structures or other places used for or in connection therewith, where one or more persons are employed at manufacturing, including making, altering, repairing, finishing, * * * any article
■ _ By the use of “ factory ” in said section 104 the Legislature necessarily meant a factory as so defined by section 2 of the same enactment. It is manifest. that the danger to the public health which the Legislature attempted to prevent arises from children or infants wearing the garments, and that danger is precisely the same regardless of who has the wearing apparel thus manufactured in the tenement, or is . the agency through which the wearing apparel is sold to the public. The statute, however, limits the prohibition of such ' manufacture to manufacturing for a factory. It is, therefore, open to all, who have no factory, to procure the manufacture of such wearing apparel in such tenement house apartments and to sell the garments to the public. The statute, therefore, plainly discriminates between dealers in this class of wearing apparel in the same locality. The manufacture of such wearing apparel for factories only is prohibited while the manufacture in such places of the same class of wearing apparel for all other persons and to be used for the same purposes is not prohibited. If the Legislature had prohibited the manufacture of all such wearing apparel in such places, or of such wearing apparel intended for sale or distribution to the public, then the statute could be sustained for it would operate equally upon all dealers in such garments, but by limiting the prohibition to one class of such dealers, namely, those who have factories and place the orders for their factories or to orders placed by other factories, it has unjustly discriminated
The learned deputy assistant district attorney, while maintaining the constitutionality of the statute, also contends that the defendant has waived his right to declare the statute unconstitutional by not taking the specific objection at the trial, and, as authority therefor, he cites People v. Ostrander (144 App. Div. 860) and Dodge v. Cornelius (168 N. Y. 242). The learned counsel for the appellant, answering this contention, says that the proceedings on the trial were informal and summary, and that the facts were not controverted; but that the prosecution was defended on the ground, as appears by the record, that the defendant could not be convicted under the law. The record shows that statements made by counsel for the defendant at the trial were to the effect that the defendant, if convicted, intended to appeal, and that he claimed that the statute, if applicable to the defendant, works a hardship for the reason that firms in New Jersey and in Europe are competing here in the market with the defendant and others similarly situated, and that the defendant, if required to manufacture wearing apparel in his factory, cannot compete with such competitors. Were it necessary to take the objection on the trial, 1 think it was sufficiently taken, for the sole ground on which the prosecution was defended was that the defendant, who conceded the facts, could not be convicted under the statute.
For these reasons I vote for reversal and for the annulment of the conviction.
Judgment affirmed.