The Barber Asphalt Paving Company is a West Vir_ ginia corporation engaged in the business of paving streets in the cities of this state under contracts with the municipal authorities. In June, 1894, the paving company entered into a contract with the city of Buffalo to pave Kensington avenue, a public street in said city. The defendant was the superintendent of the company, and as such hired and discharged its laborers on that work. During the progress of the work Warren employed an alien Italian as a laborer, and for that he has been indicted, tried, and convicted. No question is made as to the defendant’s liability, although he acted solely as the agent and servant of the paving company in employing the alien.
The appellant contends—First, that the facts stated in the indictment do not constitute a crime; second, that the statute under which he is adjudged to be a criminal is repugnant to our state and national constitutions, and to the treaty between the United States and the king of Italy.
Section 1 of article 1 of our state constitution provides that no member of this state shall be deprived of any of the rights or privileges secured to any citizen thereof unless by the law of the land or the judgment of his peers. Section 6 of article 1 provides that no person shall be deprived of liberty or property without due process of law. Article 5 of amendments to the federal constitution provides that no person shall be deprived of liberty or property without due process of law, and section 1 of article 15 provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and that no state shall deprive any person of liberty or property without due process of law. By article 3 of the treaty with Italy it is provided, in substance, that resident Italians in the United States shall enjoy the same rights and privileges in respect to their person and property as are secured to our own citizens.
The only way by which a member of the state, whether citizen or alien, can be deprived of the rights and privileges thus secured to him is by due process of law,—namely, a proceeding for that purpose conducted in accordance with the forms and methods, and by the means. prescribed, for the enforcement of law. The relation of the paving company to the city of Buffalo was that of an independent contractor, and while engaged in the transaction of its business in this state it is entitled to the same protection and enjoys the
It will not be profitable, as it seems to me, to argue at length the foregoing propositions of law. If, however, authorities are deemed necessary, see dissenting opinion in the case of People v. Beck (Super. Buff.)
The position thus assumed by the people is novel, and not altogether lacking in plausibility. It is undoubtedly true that, if the state engages in the construction of public works, it may employ and refuse employment to whom it will. It can do that in precisely the same way and to the same extent that an individual member of the state may exercise the same right in reference to his private and individual affairs. The right is the same in either case. It is at this point, as it seems to me, that the respondents fall into error. The contention is, as we have seen, that the state owns the street, and that, therefore, notwithstanding the pavement in it is being constructed under a contract between the municipality and an individual member of the state, the act of employing laborers is one of dominion over and regulation of its own property by the state. The statement of the case carries with it a complete destruction of the theory upon which the claim is made. That the state surrenders its public and governmental functions, and stands on an equal footing with an independent contractor with it, as to such work as that in question here, and that, as a state, it exercises no dominion over the property or control over the employment of laborers upon the work being done, is well stated by Dillon, in his work on Municipal Corporations, as follows:
*945 “Bach one of the United States in its organized political capacity, although it is not in the proper sense of the term a corporation, yet it has many of the essential faculties of a corporation: * * * Private rights, the power to sue. and the like. * * * Like corporations, * * * a state can make contracts, * * * maintain actions to enforce its rights, and redress its injuries. While the power to contract is a necessary constituent of the sovereignty of a state, when it enters into a contract with a private individual it relinquishes its sovereign character by such transaction, and, as a general rule, can claim no exemption from the rules of law applicable to the contracts of private parties under like circumstances. Delafield v. Illinois,2 Hill, 159 ; Indiana v. Woram,6 Hill, 33 ; Lloyd v. New York,5 N. Y. 374 opinion of Foot, J.; People v. Stephens,71 N. Y. 549 ; Patton v. Gilmer,94 Am. Dec. 665 .”
The right by virtue of which the state regulates the use of its property is one of dominion and sovereignty, as clearly appears from the case of McCready v. Virginia,
If the views here expressed are sound, the statute in question seeks unlawfully to interfere with the personal liberty of the individual. I think it does, and that it is in conflict with our federal and state constitutions, and the treaty with Italy as well; and, until compelled by judicial authority to yield assent to such legislation as that in question here, I shall esteem it a privilege and solemn duty to stamp it with my disapproval.