McMillen v. Browne
| Decision Date | 10 July 1964 |
| Citation | 251 N.Y.S.2d 641,200 N.E.2d 546,14 N.Y.2d 326 |
| Parties | , 200 N.E.2d 546, 50 Lab.Cas. P 51,136 Foster McMILLEN, as a Taxpayer of the City of New York, Appellant, v. Roger J. BROWNE, as Commissioner of Purchase of the City of New York, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Jerome Doyle and Henry G. Bisgaier, New York City, for appellant.
Leo A. Larkin, Corp. Counsel (Pauline K. Berger, New York City, of counsel), for respondents.
'shall contain stipulations by which the contractor agrees * * * (t)hat all persons employed by the contractor and 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 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 laws relate to such subjects, to legislate with respect to 'the transaction of its business' and 'the wages or salaries, the hours of work or labor, and the protection, welfare and safety of persons employed by any contractor or subcontractor performing work, labor or services for it'. (Emphasis supplied.) 1 In this regard, the section presently under attack does no more than announce the 'terms and conditions', with respect to wages, which the city has elected to include in certain of its contracts. Its enactment reflects a determination by the city that the work performed for it, as well as the products to be manufactured and furnished for its use, will be of a higher quality and that the work will not be interrupted or delayed by labor unrest if the persons employed by city contractors and subcontractors in the performance of their agreements are paid no less than the specified minimum rate. Such specifications are as much an incident of the city's power to contract and be contracted with as is its right to specify the quality of the materials to be used under its contracts and, in establishing them, the city acts not as a lawmaker regulating private parties or businesses but 'in its capacity as proprietor, issuing a mandate to its own agents' as to the mode of performance of its contracts. (People v. Crane, 214 N.Y. 154, 169, 108 N.E. 427, 432, L.R.A.1916D, 550, affd. 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218; see Perkins v. Lukens Steel Co., 310 U.S. 113, 127-129, 60 S.Ct. 869, 84 L.Ed. 1108; Ellis v. United States, 206 U.S. 246, 255-256, 27 S.Ct. 600, 51 L.Ed. 1047; Dougherty v. Folk, Mayor, 70 Ohio App. 304, 310-311, 46 N.E.2d 307; Wagner v. City of Milwaukee, 180 Wis. 640, 644 et seq., 192 N.E. 994, dsmd. for want of jurisdiction 266 U.S. 585, 45 S.Ct. 124, 69 L.Ed. 454).
Although the powers delegated to a city by the provisions of the Constitution and the City Home Rule Law, to which we have referred, are exceedingly broad, they are, of course, conditioned on their exercise not being 'inconsistent' with any State enactment. And it is the plaintiff's principal contention that such an inconsistency eixsts between the challenged provision and section 220 of the Labor Law which declares that persons employed on 'public works' either directly by a city or by its contractors and subcontractors must be paid a minimum wage equal to 'the prevailing rate of wages' (supra, p. 330, 251 N.Y.S.2d p. 643, 200 N.E.2d p. 547). By establishing a rigid minimum wage of $1.50 an hour for 'all persons employed' by city contractors or subcontractors, including those employed on 'public works', the plaintiff argues, subdivision a of section 343-9.0 of the Administrative Code comes in conflict with the State's more flexible 'prevailing rate' standard and must fall as inconsistent therewith under the principles laid down by this court in Wholesale Laundry Bd. of Trade, Inc. v. City of New York, 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623, affg. the reasoning in 17 A.D.2d 327, 234 N.Y.S.2d 862. Our decision in that case holding invalid a local law requiring every employer in New York City to pay to all of his employees a higher minimum wage than that prescribed by a provision of section 652 of the State's Labor Law can have no application to the local legislation before us, limited as it is to a particular employer, the city.
Whether the minimum wage provisions of section 343-9.0, if applied to employees working under contract or subcontract with the city on 'public works', would be inconsistent with the standard prescribed in section 220 of the Labor Law which, as we have observed, provides for the payment of prevailing rates, is a question with which we need not now concern ourselves, for it is quite clear that the Administrative Code provision has no such application. As previously remarked, the Rules and Regulations of the Board of Estimate, promulgated soon after enactment of the local law, expressly exclude from its scope any and all employees covered by the provisions of the State Labor Law and, in addition, the 'Standard Form of Contract' used by the city explicitly recites that, 'Except for those employees whose minimum wage is required to be fixed pursuant to Section 220 of the Labor Law', all persons employed by the contractor or subcontractor will be paid not less than the specified minimum wage of $1.50 an hour. (Emphasis supplied.) The fact that section 343-9.0 refers, in terms, to '(e)very contract' by the city and 'all persons' employed thereunder is not decisive where it is clear, as it is here, that the city did not intend the section's provisions to apply to employees covered by existing State law. (See, e. g., Matter of Tuschinsky v. City of New...
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