14 N.Y.2d 326, McMillen v. Browne

Citation:14 N.Y.2d 326, 251 N.Y.S.2d 641
Party Name:McMillen v. Browne
Case Date:July 10, 1964
Court:New York Court of Appeals

Page 326

14 N.Y.2d 326

251 N.Y.S.2d 641

Foster McMILLEN, as a Taxpayer of the City of New York, Appellant,


Roger J. BROWNE, as Commissioner of Purchase of the City of New York, et al., Respondents.

New York Court of Appeals

July 10, 1964.

Page 327

[251 N.Y.S.2d 642] Jerome Doyle and Henry G. Bisgaier, New York City, for appellant.

Page 328

Leo A. Larkin, Corp. Counsel (Pauline K. Berger, New York City, of counsel), for respondents.

Page 329

FULD, Judge.

Section 343-9.0 (subd. a) of the Administrative Code of the City of New York, enacted in 1961, requires the insertion in city contracts and subcontracts of certain stipulations pertaining to the wages and working conditions of employees of such contractors and subcontractors. Insofar as relevant, this local law recites that

'Every contract for or on behalf of the city for the manufacture, furnishing or purchase of supplies, material or equipment, or for the furnishing of work, labor or services',

entered into by public letting, pursuant to section 343 of the City Charter,

'shall contain stipulations by which the contractor agrees * * * (t)hat all persons employed by the contractor and [251 N.Y.S.2d 643] any subcontractor in the manufacture or furnishing of the supplies, materials or equipment, or the furnishing of work, labor or services, used in the performance of the contract will be paid * * * not less than the sum of one dollar and fifty cents an hour.'

Another provision of section 343-9.0 empowers the city's Board of Estimate 'to adopt such rules and regulations as may be necessary to carry out the purposes of this section (§ 343-9.0, subd. e). Under an administrative regulation duly promulgated soon after the enactment of the section, the board directed and there has been compliance with its direction that the minimum wage stipulations were not to be inserted in city contracts or subcontracts 'for those employees whose minimum wage is required to be fixed by Section 220 of the Labor Law

Page 330

of the State of New York (Consol.Laws, c. 31).' (Board of Estimate, Resolution, April 5, 1962, Cal.No. 122). The latter section provides, in part, that 'laborers, workmen or mechanics' employed by a municipality or its contractors on 'public works' must be paid a minimum wage equal to 'the prevailing rate of wages' in the same trade or occupation in the locality where the work is being done. (See, e. g., Matter of Gaston v. Taylor, 274 N.Y. 359, 9 N.E.2d 9.)

The Administrative Code provision is challenged in this taxpayer's action (General Municipal Law, Consol.Laws, c. 24, § 51) as illegal and void on the grounds that it is in conflict with existing State legislation and that, in any event, it deals with a subject completely pre-empted by the State.

Before treating these specific arguments, we would but say what seems quite plain that the challenged local law is within the scope of the powers granted the city by both Constitution and statute. Thus, the State Constitution (art. IX, § 12) and the City Home Rule Law, Consol.Laws, c. 76 (§ 11, subds. 1, 2) expressly confer upon every city the authority to adopt local laws, not inconsistent with State Constitution or statute, 'relating to its property, affairs or government' and, whether or not such local...

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