Department of Labor and Industry v. Cruz

• Decision Date: 08 July 1965
• Docket Number: No. A--124,A--124
• Citation: 212 A.2d 545,45 N.J. 372
• Parties: , 9 Fair Empl.Prac.Cas. (BNA) 1334, 1 Empl. Prac. Dec. P 9716 DEPARTMENT OF LABOR AND INDUSTRY of the State of New Jersey, Plaintiff-Respondent, v. Evaristo CRUZ, t/a Cruz Construction Company, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 372

45 N.J. 372

212 A.2d 545, 9 Fair Empl.Prac.Cas. (BNA) 1334,

1 Empl. Prac. Dec. P 9716

DEPARTMENT OF LABOR AND INDUSTRY of the State of New Jersey Plaintiff-Respondent, v. Evaristo CRUZ, t/a Cruz Construction Company, Defendant-Appellant.

No. A--124.

Supreme Court of New Jersey.

Argued May 18, 1965.

Decided July 8, 1965.

William B. Kaufman, Elizabeth, for appellant (David A. Weinstein, Elizabeth, on the brief, Kaufman, & Kaufman, Elizabeth, attorneys).

Morris Yamner, Deputy Atty. Gen., for respondent (Donald L. Raff, Deputy Atty. Gen., on the brief, Arthur J. Sills, Atty. Gen., attorney).

The opinion of the court was delivered by

FRANCIS, J.

On or about October 17 and 18, 1963 defendant Cruz, trading as Cruz Construction Company, was engaged in laying a trunk line for the Pompton Lakes municipal sewer system. The work was a public project performed at public expense under a contract between Cruz and the Borough of Pompton Lakes, New Jersey. On those dates Cruz employed 14 Portugese aliens as laborers on the project. Although they were not United States citizens, they were legally in this country and held alien registration cards. A complaint was filed in the Municipal Court by the Department of Labor and Industry charging violation of R.S. 34:9--1, N.J.S.A., which prohibits employment of aliens on public works. Cruz was found guilty on each of the 14 counts and fined $1,400 plus costs. The statute fixes a penalty of $100 for each violation. The County Court affirmed the conviction, and on our own motion we certified the ensuing appeal before it was argued in the Appellate Division.

On this appeal defendant claims the statute transgresses the equal protection clause of the Fourteenth Amendment of the Federal Constitution, and Art. 1, 5 of the New Jersey Constitution of 1947. He contends further that R.S. 34:9--1, N.J.S.A. was impliedly repealed by subsequent inconsistent legislation which we shall discuss hereafter. We find it unnecessary to deal with the constitutional problems because we are satisfied the contention of implied repealer is sound and requires a reversal of the convictions. But on the issue of constitutionality, compare People v. Crane, 214 N.Y. 154, 108 N.E. 427 (Ct.App.1915), affirmed 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915), and Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206 (1915), with Takahashi v. Fish & Game Commission, 334 U.S. 410, 419--420, 68 S.Ct. 1138, 92 L.Ed. 1478, 1487 (1948), and see 'Constitutionality of Restrictions on Aliens' Right to Work,' 57 Colum.L.Rev. 1012 (1957); Note, '1947--1948 Term of the Supreme Court: The Alien's Right to Work,' 49 Colum.L.Rev. 257 (1949); 'National Power to Control State Discrimination Against Foreign Goods and Persons: A Study in Federalism,' 12 Stan.L.Rev. 355 (1960); Agreement with Portugal on passport visa fees, Feb. 24, 1950 (1950), 1 U.S.T. & O.I.A. 461, T.I.A.S. No. 2084.

The statute, R.S. 34:9--1, N.J.S.A., which provided the basis for defendant's prosecution was adopted in 1899. L.1899, c. 202. So far as pertinent, it provides 'It shall be unlawful for the state or any county, municipality, board, committee, commission or officer thereof, officer, body or organization having charge of any public work * * *, whether the same be a building, excavation, pipe-laying, bridge or dock-building, sewer or drainage construction, road building, paving, or any other form or kind of public work, which shall be undertaken and done at public expense or for any person or corporation, to employ as a mechanic or laborer upon such public work or construction, or any part thereof, any person who is not at the time of such employment a citizen of the United States * * *.'

Penalty for violation is fixed at $100.

It has been said that the evil at which statutes of this nature were aimed originally was the importation of foreign labor to work for wages amounting to peonage. See Bureau of Statistics of Labor and Industries of New Jersey Seventh Ann.Rep. (1884), c. iii, 'Importation of Foreign Labor Under Contract,' pp. 274--281; also c. iv, 'Immigration and the Labor Problem,' pp. 284--296. Such immigration practice was not only considered detrimental to the dignity and freedom of aliens as human beings, but the competitive force it produced was deemed inimical to the welfare of the laboring class of citizens of this country.

Since enactment the statute has remained on the books in its original form. We have been unable to find any reported cases where it has been considered, applied or attacked. In 1931, however, its harshness was ameliorated but without any specific reference to the statute. L.1931, c. 27 and c. 402 provided that in the performance of any form or kind of public work preference in employment 'shall be given to citizens of the State of New Jersey (who have resided and been domiciled therein continuously for a period of one year.)' The bracketed portion was added by c. 402. But both chapters authorized employment of persons 'other than citizens of the State of New Jersey * * * when such citizens are not available.' L.1934, c. 92 added the requirement that the one-year domicile in New Jersey be immediately prior to such employment. The statute as amended in 1934 is still in force, appearing as R.S. 34:9--2, N.J.S.A.

Thus it may be said on the basis of the legislative mosaic, that at the end of 1934 it was no longer unlawful to employ an alien on a public work or construction project if citizens of the State were not available.

The suggestion has been made that the purpose of the 1931 and 1934 acts was to give preference in such employment to citizens of New Jersey, and thereafter to permit employment of citizens of other states, but not to alter the 1899 prohibition (R.S. 34:9--1, N.J.S.A., supra) against employment of aliens. We consider that to be an unduly restrictive analysis. Obviously if the lawmakers' intent was simply to secure a preference for New Jersey citizens over citizens of sister states, it would have been a simple matter to say so. Instead, upon creating the preference for our citizens, it provided that 'persons' other than citizens of New Jersey may be employed when such citizens are not available. 'Persons' is a word of broad connotation; in context it may include citizens and aliens. Restriction on the right of a person lawfully in this country to earn a living ought to be soberly regarded and construed strictly rather than expansively. See Takahashi v. Fish & Game Commission, supra (334 U.S. at pp. 419--420, 68 S.Ct., at pp. 1142--1143, 92 L.Ed. at p. 1487).

In 1933 another act, L.1933, c. 277, now, as amended, N.J.S.A. 10:2--1, was adopted which broadly covered the subject of discrimination in public employment. It required every contract between the State, county, city, township or other municipality and a contractor for the construction, alteration or repair of any public building or public work to contain provisions by which the contractor agrees that in the hiring of laborers, workmen or mechanics neither he nor any subcontractor will discriminate by reson of 'race, creed or color' against 'any citizen of the State of New Jersey who is qualified and available to perform the work to which the employment relates; * * *' L.1933, c. 277, § 1(a). (Emphasis added)

Paragraphs 1(c) and (d) required further stipulations that a penalty of $5 a day shall be deducted from the amount payable under the contract for each calendar day for each person discriminated against; that in case of such discrimination the contract may be cancelled or terminated by the public body involved; and all money due or to become due may be forfeited for 'a second or any subsequent violation' of the provisions against discrimination.

The 1933 act was amended by L.1945, c. 171 by the addition to paragraph 1(a) of a requirement for further stipulation in the contract for public work that the ban on discrimination in employment against New Jersey citizens would include 'national origin or ancestry' as well as race, creed or color. N.J.S.A. 10:2--1.

As a matter of statutory evolution it should be noted that the amendment was approved and became effective on April 16, 1945. On the same day a new and related statute was approved and became effective. This new statute was designated 'Law Against Discrimination.' L.1945, c. 169, now, as amended, N.J.S.A. 18:25--1 to 28. In section 3 the Legislature declared that the

'practices of discrimination against any of its inhabitants, because of race, creed, color, national origin or ancestry, are a matter of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.'

Section 4 said that the opportunity to obtain employment without discrimination because of race, creed, color, national origin or ancestry 'is recognized as and declared to be a civil right.' Section 11 listed certain unlawful employment practices, among them refusal by an employer of employment to any individual because of race, creed, color, national origin or ancestry. Section 11(a), now, as amended, N.J.S.A. 18:25--12(a). And a Division Against Discrimination was created to administer, police and enforce the statute.

Obviously these two enactments born the same day were intended to...