City of Cleveland v. Clements Bros. Const. Co.

• Decision Date: 02 December 1902
• Parties: CITY OF CLEVELAND v. CLEMENTS BROS. CONST. CO.
• Court: Ohio Supreme Court

65 N.E. 885

67 Ohio St. 197

CITY OF CLEVELAND v. CLEMENTS BROS. CONST. CO.

Supreme Court of Ohio.

December 2, 1902

Error to circuit court, Cuyahoga county.

Action by the Clements Bros. Construction Company against the city of Cleveland. Judgment for defendant was reversed by the court of common pleas, and defendant brings error. Affirmed.

It was alleged by plaintiff in its petition that the city had, on July 31, 1900, entered into a contract with the plaintiff for the construction of a sewer in Wellington avenue, in said city, and promised to pay the plaintiff for the material furnished and work and labor done by it in the construction of said sewer as specified in the contract; that the chief engineer of said city was directed to and did make an approximate estimate of the work done and materials furnished under said contract, which estimate amounted to $9,808.72 that said estimate was duly approved by the director of public works, and filed with the city auditor; that all of said amount was paid by said city to the plaintiff, except the sum of $320; that said city, without valid reason, and contrary to the terms of the contract, retained said sum, and refused to pay the same to the plaintiff; wherefore the plaintiff prayed judgment for said sum of $320, with interest thereon from December 15, 1900. The city's answer to the petition admitted the contract, the estimate, that said estimate was duly approved by the director of public works and filed with the city auditor, the payment of all of the amount of said estimate except $320, the retention by it of that sum, the plaintiff's demand, and its refusal to pay. It, however, denied that such retention and refusal were contrary to the terms of the contract, and without lawful or valid reason, as alleged in the petition; and averred that it refused to pay the plaintiff said amount by authority of an act passed by the general assembly of the state of Ohio April 16, 1900, entitled ‘ An act to provide for limiting the hours of daily service of laborers, workmen and mechanics employed upon public works, or work done for the state of Ohio, or any political subdivision thereof,’ etc. 94 Ohio Laws, p. 357. Defendant, in its answer, further averred that, in accordance with the provisions of section 2 of said act, a certain stipulation attached to the answer, and made a part thereof, and marked ‘ Exhibit A,’ was made a part of the contract between the plaintiff and defendant, and that in violation of the stipulation and of the law the plaintiff required or permitted laborers, workmen, and mechanics to work more than eight hours in one calendar day upon the work mentioned in the contract, and that the work so done was not done by reason of any emergency, or upon any work mentioned in the act and exempted from its operation that said act and stipulation provided that a penalty of $10 for each day in which any laborer, mechanic, or workman labored more than eight hours should be paid by plaintiff and withheld by defendant; that the plaintiff did require 32 laborers to work more than eight hours on one certain day that in accordance with the provisions of said act defendant retained $10 per day for each violation of the act, amounting to $320; wherefore it prayed to be dismissed. To this answer the plaintiff demurred, alleging as grounds of demurrer: (1) That said answer is insufficient in law on its face; (2) that said answer does not state facts sufficient to constitute a defense to plaintiff's cause of action; (3) that the statute referred to in said answer is unconstitutional. This demurrer was overruled by the court of common pleas, and judgment given for the defendant. The case was taken to the circuit court on error, which court reversed the judgment of the common pleas for error in overruling said demurrer. The circuit court sustained the demurrer to the answer, and defendant not desiring to plead further, rendered judgment against the city of Cleveland for the amount prayed for. This proceeding is prosecuted to reverse the judgment of the circuit court and to affirm that of the common pleas.

Syllabus by the Court

1. The act of April 16, 1900 (94 Ohio Laws, p. 357), entitled, ‘ An act to provide for limiting the hours of daily service of laborers, workmen and mechanics employed upon public work, or of work done for the state of Ohio, or any political subdivision thereof, providing for the insertion of certain stipulations in contracts of public works; imposing penalties for violations of the provisions of this act, and providing for the enforcement thereof,’ -is in conflict with sections 1 and 19 of article 1 of the constitution of Ohio, because it violates and abridges the right of parties to contract as to the number of hours' labor that shall constitute a day's work, and invades and violates the right both of liberty and property, in that it denies to municipalities and to contractors and subcontractors the right to agree with their employés upon the terms and conditions of their contracts. Said act is therefore unconstitutional and void.

2. Said act is not a valid exercise of the police power, it not appearing that the services and labor to be performed were unlawful or against public policy, or that they were of such character that such limitation and restriction as to the number of hours' labor that should constitute a day's work was necessary to the public welfare.

3. Said act being unconstitutional, in an action brought by a contractor against the city to recover an amount due him for labor performed for said city under a contract containing a stipulation, as required by said act, that said contractor should not require or permit any of his employés to labor more than eight hours in any one day, and providing as penalty for a violation of such stipulation the forfeiture of $10 for each employé who should be so required or permitted to work more than eight hours in any one calendar day, where, by way of answer, and as and for its only defense, such city relies upon and pleads its right to withhold and retain from such contractor by way of forfeiture, and as penalty for his breach of such stipulation, an amount equal to the amount claimed by said contractor to be due him on said contract, such answer does not state a sufficient defense, and is bad on general demurrer.

4. Where a statute peremptorily requires certain stipulations or agreements to be inserted in a contract, and the same are, by force of such statute, and because of its provisions, inserted by the contracting parties in their contract, the obligatory and binding force of such stipulations and agreements so inserted depends upon the validity of the statute requiring their insertion; and where such statute is itself unconstitutional such stipulations and agreements. although incorporated in the contract, are in law without any obligatory or binding force upon the parties to said contract.

M. W. Beacom and Babcock, Payer, Gage & Carey, for plaintiff in error.

Weed & Miller and Wilcox, Collister, Hogan & Parmely, for defendant in error.

CREW, J. (after stating the facts).

In this case the city of Cleveland, defendant in the court below, for answer to the claim made against it by plaintiff below, the Clements Bros. Construction Company, pleaded by way of justification, and as its only defense, the provisions of an act of the Ohio legislature passed April 16, 1900, and entitled ‘ An act to provide for limiting the hours of daily service of laborers, workmen and mechanics employed upon public works, or of work done for the state of Ohio, or any political subdivision thereof, providing for the insertion of certain stipulations in contracts of public works; imposing penalties for violations of the provisions of this act, and providing for the enforcement thereof.’ 94 Ohio Laws, p. 357. The sufficiency of this answer as a defense was challenged by a demurrer filed thereto by plaintiff. Whether such answer was and is sufficient, and the matter so pleaded defensive, depends entirely upon whether said act of April 16, 1900, is a valid and constitutional enactment. The provisions of this law are as follows:

‘ Section 1. The service of all laborers, workmen and mechanics employed upon any public works of, or work done for the state of Ohio, or for any political subdivision thereof, whether said work is done by contract or otherwise, shall be, and is hereby limited, and restricted to eight hours in any one calendar day; and it shall be unlawful for any officer of the state, or of any political division thereof, or any person acting for or on behalf thereof, or any contractor, or subcontractor for any part of any public works of, or work done for such state, or political subdivision thereof, or any person, corporation or association whose duty it shall be to employ or to direct and control the services of such laborers, workmen or mechanics, or who has in fact the direction or control of the services of such laborers, workmen or mechanics, to require or permit them, or any of them, to labor more than eight hours in any one calendar day, except in cases of extraordinary emergency, caused by fire, flood or danger to life and property, and except to work upon public, military or naval works or defenses in time of war, and except in cases of employment of labor in agricultural pursuits.

‘ Sec. 2. Each any every contract to which the state of Ohio, or any political subdivision thereof, is a party, and every contract made for or on behalf of the said state, or any subdivision thereof, which contract may involve the employment of laborers, workmen or mechanics, shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor, or any subcontractor doing or contracting to do any part...