Campbell v. City of New York 

• Decision Date: 23 February 1927
• Citation: 244 N.Y. 317,155 N.E. 628
• Parties: CAMPBELL v. CITY OF NEW YORK et al. (two cases). MORSE v. DELANEY et al.
• Court: New York Court of Appeals Court of Appeals

244 N.Y. 317

155 N.E. 628

CAMPBELL

v.CITY OF NEW YORK et al. (two cases).

MORSE

v.DELANEY et al.

Court of Appeals of New York.

Feb. 23, 1927.

Two actions by Jasper A. Campbell against the City of New York and others, and action by Frank H. Morse against John H. Delaney and others. From judgments of the Appellate Division (218 App. Div. 826, 219 N. Y. S. 782, 867), affirming judgments of the Special Term dismissing the complaints for failure to state a cause of action, plaintiffs appeal.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Isidor J. Kresel, of New York City, for appellant Campbell.

John F. Collins, Franklin Nevius, Harry S. Bandler, and Alfred C. Pette, all of New York City, for appellant Morse.

George P. Nicholson, Corporation Counsel, of New York City (J. Joseph Lilly, Arthur J. W. Hilly, and Joseph L. Pascal, all of New York City, of counsel), for respondent City of New York.

Wm. G. Fullen, Ralph R. Monroe, George E. Coughlin, and John F. X. McGohey, all of New York City, for respondent Board of Transportation of the City of New York.

CARDOZO, C. J.

These are taxpayers' actions under General Municipal Law, § 51 (Consol. Laws, ch. 24), to restrain the city of New York, its board of estimate and apportionment and the board of transportation, from perfecting or awarding proposed contracts for the construction of sections of a subway. The wages to be paid by contractors, subcontractors, or others to laborers, workmen, or mechanics engaged upon the work are regulated in the contracts by provisions which are assailed as wasteful and illegal. The question is whether the complaints state the essentials of a cause of action.

By the Labor Law of the state (Consol. Laws, ch. 31, § 220) every contract to which the state or a municipal corporation or a commission appointed pursuant to law is a party, and which may involve the employment of laborers, workmen, or mechanics, shall contain a provision for an eight-hour day of labor except in cases of extraordinary emergency. By the same section:

‘The wages to be paid for a legal day's work, as hereinbefore defined, to laborers, workmen or mechanics upon such public works, or upon any material to be used upon or in connection therewith, shall be not less than the prevailing rate for a day's work in the same trade or occupation in the locality within the state where such public work on, about or in connection with which such labor is performed in ist final or completed form is to be situated, erected or used and shall be paid in cash. Such contracts shall contain a provision that each laborer, workman, or mechanic, employed by such contractor, subcontractor or other person about or upon such public work, shall be paid the wages herein provided.’

Violation of any provision of the section is a crime, punishable by fine or imprisonment, or both, and in addition forfeiting the contract illegally performed, and, in case of a second offense, the payments earned thereunder (section 220, subd. 5).

Following the requirements of this section, the proposed contracts provide:

‘That the wages to be paid for a legal day's work as hereinbefore defined to all classes of such laborers, workmen or mechanics upon the work contemplated by this contract or upon any material to be used upon or in connection therewith, shall be not less than the prevailing rate for a day's work in the same trade or occupation in the locality within the state where the work hereby contemplated about or in connection with which such labor is performed in its final or completed form is to be situated, erected or used, and shall be paid in cash; and that each such laborer, workman or mechanic employed by the contractor or by any subcontractor or other person on, about or upon the work contemplated by this contract, shall receive such wages herein provided for.’

The framers of the contracts did not confine themselves, however, to the foregoing provisions which are substantially a repetition of the language of the statute. They added other provisions with a view to greater certainty. ‘Locality within the state’ was to be understood as signifying the city of New York. ‘The prevailing rate’ of wage was to be the ‘rate paid to a majority of the laborers, workmen or mechanics engaged in the same trade or occupation in the city of New York.’ If there was not a majority paid at the same rate, ‘then the rate paid to the greater number of such trade or occupation in the city of New York’ was to be accepted as the prevailing rate, ‘provided that such greater number constitute at least 40 per centum of the laborers, workmen or mechanics engaged in such trade or occupation in the city of New York.’ If less than 40 per centum were paid at the same rate, then the prevailing rate was to be the average rate paid to such laborers, workmen, or mechanics in the same trade or occupation. Those employed under the proposed contracts were to be included with others in reckoning the total number.

The complaints allege in substance that the ‘prevailing rate’ of wages under Labor Law (section 220) is a variable quantity, uncertain, indefinite, and not susceptible of ascertainment; that the statute, in so far as it prescribes the payment of such wages, is unconstitutional, for the reason that its command is unintelligible; that the contracts made thereunder, in so far as they repeat the same command, are invalid for the same reason and to the same extent; that the added definitions illegally depart from the form established by the statute, and, even if otherwise permissible, do not correct the uncertainty; and finally that bidders for the proposed contracts will be unable to bid with understanding, and will be driven to increase their bids as a protection against obligations unknown and unknowable, with resulting waste and injury to the city and its taxpayers.

The public policy of the state declared by successive Legislatures during a period of 30 years (L. 1897, ch. 415; L. 1899, ch. 567; L. 1900, ch. 298; L. 1906, ch. 506; L. 1909, ch. 292; L. 1913, ch. 494; L. 1916, ch. 152; L. 1921, ch. 642) exacts the payment of the rate of wages prevailing in the vicinage to laborers and mechanics employed upon the public works. We trace in judicial decision and constitutional amendment the tides of thought and sentiment. People ex rel. Rodgers v. Coler (1901) 166 N. Y. 1, 59 N. E. 716,52 L. R. A. 814, 82 Am. St. Rep. 605, held an early statute void. A majority of the court discerned an invasion of the constitutional rights of the municipality itself. The same majority discerned an invasion of the liberty of the contractors and a denial of due process of law when the privilege of hiring labor on any terms obtainable was obstructed or withdrawn. Atkin v. Kansas (1903) 191 U. S. 207, 24 S. Ct. 124, 48 L. Ed. 148, undermined this last position so effectually that there has been little attempt since then to occupy the weakened ground. A sentence states the argument:

‘It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the state.’ 191 U. S. at page 222 (24 S. Ct. 127).

Following that decision came limitation and distinctions. Ryan v. City of New York (1904) 177 N. Y. 271, 69 N. E. 599, drew a dividing line between the regulation of wages to be paid to the servants of contractors and the regulation of wages to be paid to servants of municipality or state. People ex rel. Cossey v. Grout (1904) 179 N. Y. 417, 423,72 N. E. 464,1 Ann. Cas. 39, gave over the objection that the contractors had suffered in their liberty. ‘No man has a right * * * to a contract for work except on just such terms and conditions as the other contracting party prescribes.’ 179 N. Y. at page 428 (72 N. E. 468). Nothing was then left except some immunity supposed to be inherent in the municipality itself. Whatever vestige there was of this disappeared with the constitutional amendment of 1905. ‘The Legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare and safety of persons employed by the state or by any county, city, town, village or other civil division of the state, or by any contractor or subcontractor performing work, labor or services for the state, or for any county, city, town, village or other civil division thereof.’ Constitution, art. 12, § 1; People ex rel. Williams Engineering & Contracting Co. v. Metz (1908) 193 N. Y. 148, 85 N. E. 1070,24 L. R. A. (N. S.) 201.

The plaintiffs would have us hold that from the throes of this long struggle there emerged a statute without meaning, a futile and deceptive gesture. Connally v. General Const. Co., 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322, decided by the Supreme Court of the United States in January, 1926, is said to point to that conclusion. An injunction was there sought to restrain the law officers of Oklahoma from the enforcement of a penal statute. The wages paid by the employer were $3.20 per day. The commissioner of labor complained that $3.60 should be accepted as the ‘current rate.’ His own investigation showed, however, that wages varied in the locality from $3 at one extreme to $4.05 at the other. These were conceded facts, for the case was heard upon demurrer to the bill. In such circumstances, the decision was merely this, that in its application to that employer, the statute, which is very similar to our own, was too obscure and indefinite to sustain a charge of crime. Obscurity was thought to be inherent in the standard of ‘a current wage,’ with a mulititude of gradations between minimum and maximum. Obscurity was thought to be inherent also in the ‘locality’ of the work. There was thus, in the view of the court, ‘a double uncertainty,’ fatal to the validity of ‘a criminal statute.’ ‘Penal statutes prohibiting the doing of certain things, and providing a punishment for their...