People ex rel. Cossey v. Grout

• Decision Date: 29 November 1904
• Citation: 179 N.Y. 417,72 N.E. 464
• Parties: PEOPLE ex rel. COSSEY v. GROUT, Comptroller.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 417

72 N.E. 464

PEOPLE ex rel. COSSEY

v.GROUT, Comptroller.

Court of Appeals of New York.

Nov. 29, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the people, on the relation of Harry Cossey, for writ of mandamus against Edward M. Grout, comptroller of the city of New York. From an order of the Appellate Division (89 N. Y. Supp. 1113) affirming an order of the Special Term denying a motion for peremptory mandamus, relator appeals. Reversed.

Haight, J., dissenting.

L. Laflin Kellogg and Alfred C. Petté, for appellant.

John J. Delany, Corp.

Counsel (Theodore Connoly and Terence Farley, of counsel), for respondent.

CULLEN, C. J.

In October, 1903, the relator entered into a contract with the city of New York by the commissioner of street cleaning whereby he agreed to construct and deliver to the city 10 scows for the sum of $5,225 each. By his contract the relator agreed to comply with the provisions of chapter 415, p. 461, of the Laws of 1897, as amended, known as the ‘Labor Law,’ so far as they were constitutional and applicable thereto, and that no laborer, workman, or mechanic should be required to work more than eight hours in any one calendar day except in the case of extraordinary emergency. The relator was to be paid from time to time in installments as the work progressed. Under this contract he constructed and delivered six scows to the city authorities, which have been accepted and retained by those officers, and he received proper certiflcates establishing the performance of his work. The respondent, the comptroller of the city, resisted payment of relator's claim on the sole ground that the relator had permitted his workmen to work for more than eight hours a day in the absence of any extraordinary emergency. An application for a writ of mandamus to compel the comptroller to pay the relator for the scows delivered was denied by Special Term, as stated in the order, ‘on a question of law only, viz., that the presumption is in favor of the constitutionallty of the eight-hour provision of the labor law referred to in the motion papers herein, and not in the exercise of the discretion of this court.’ This order was affirmed by the Appellate Division by a divided court. As the writ was not denied in the exercise of discretion, the order is appealable to this court.

The validity of the so-called labor legislation recently enacted in many of the states has been the subject of much litigation and controversy both in the state and in the federal courts. In this court there have been radical differences of opinion among its members on the questions presented by such statutes. Several cases have been presented to and decided by the court. In those cases are to be found exhaustive discussions of the questions involved, and the opinions there delivered show that the members of the court approached the examination of the subject from very divergent points of view. While, as I shall show hereafter, there is no inconsistency in the several decisions made by us, so far as the propositionsactually determined are concerned, it may be frankly admitted that in the arguments used to sustain the conclusion reached there are at times found in the opinion in one case dicta in conflict with that found in the opinion in another. None of these conflicting propositions. however, was necessary to the determination of the particular case in which it was asserted. As these cases have been so recently before the court, it seems to me that no good purpose would be subserved by now reopening the whole discussion of the subject, nor does there appear much prospect that by such action we would finally reach harmony among ourselves. I think the wise course is to adhere strictly to the decisions actually made by the court without further examination of the general questions involved, and regardless of the individual opinions of our several members. In this spirit I shall approach the question now before us.

The earliest case under the labor law which came before us was that of People exrel. Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716,52 L. R. A. 814, 82 Am. St. Rep. 605. That was an application by a contractor with the city to compel the payment of his claim. It was resisted on the ground that the contractor had failed to comply with the labor law so far as it required payment by him to his employés of the prevailing rate of wages. It was held that the labor law, so far as it required that in contracts with the municipality the contractor should agree to pay his employés the prevailing rate of wages, was unconstitutional and void, and that the contractor was entitled to pay ment, though he had failed to comply with that provision. That case differs from the one now before us in but one respect. There the contractor had failed to pay the prevailing rate of wages; here the contractor permitted daily labor in excess of eight hours. This difference in circumstances would not justify a distinction in principle and therefore the decision in the Rodgers Case must control the disposition of the present case, unless the Rodgers Case has been overthrown by the subsequent cases in this court or in the Supreme Court of the United States.

In this connection it is necessary to refer to only three of the cases cited by the counsel for the respective parties. The flrst is that of People v. Orange County Road Construction Company, 175 N. Y. 84, 67 N. E. 129, 65 L. R. A. 33. That case has in reality no bearing on the question now before us. Section 384h of the Penal Code made any one contracting with the state or a municipality, who should require more than eight hours' work of an employé, guilty of a misdemeanor, and punishable by a fine. As is pointed out in the opinion rendered in the case, the statute did not assume to punish a contractor for violating his contract, but for doing the prohibited act; i. e., requiring more than eight hours' labor from an employé, regardless of whether or not he had agreed by his contract not to require such a term of labor, and even though his contract might have been made years before there was any legislation on the subject. It was held that this penal enactment could not be sustained as a police or health regulation, because of the arbitrary distinction drawn between workmen employed on a state or municipal work and those performing similar labor under other contracts. The question of the effect of a violation of a provision of the contract not to employ workmen for more than eight hours was not involved in the case nor passed on by the court.

The next case to be considered is Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148. There a statute of Kansas enacted that any one who, having thereafter contracted with the state or a municipality for the performance of a public work, should require or permit any workman to work thereon more than eight hours in a day, should be punishable by fine and imprisonment. The relator was convicted and punished under this statute. His conviction was upheld by the Supreme Court of the state of Kansas (67 Pac. 519,94 Am. St. Rep. 343), and the case was taken to the Supreme Court of the United States by a writ of error. As the case came from the state court, the only question cognizable by the Supreme Court of the United States was whether the legislation of Kansas was in conflict with the federal Constitution. The question whether the legislation was in conflict with the Constitution of Kansas was not before the federal court, nor did that court have any jurisdiction to pass upon it. The Supreme Court sustained the conviction. It held substantially two propositions: First, that, so far as the federal Constitution was concerned, a municipality is a mere agency of the state, and subject to the absolute control of the Legislature, second, that the constitutional liberty of the contractor was not violated, because he had no right to contract with the state or municlpality except on such terms as the Legislature might prescribe. This case doubtless disposes of all claim that labor legislation of the kind now before us is in contravention of the Constitution of the United States, but it does not necessarily impair the authority of the decision in the Rodgers Case, though it does affect part of the reasoning by which the conclusion in that case was reached. The prevailing opinion in the Rodgers Case proceeded on two grounds: (1) That the labor law invaded the constitutional rights of the municipality; (2) that it invaded the constitutional rights of the contractor by depriving him of his liberty to contract with his employés and in contiscating the stipulated price for his work in case he falled to comply with its provisions. The second ground-the supposed invasion of the rights of the contractor-is entirely swept away by the decision in the Atkin Case, because, as pointed out by the Supreme Court of the United States, no man has any right to contract with the public, any more than with an individual, except on such terms and conditions as the state chooses to prescribe; and, so far as the contiscation of his property, the contract price, is concerned, he never acquires any right to such payment except on the performance of the terms of his contract. The first ground of the decision in the Rodgers Case-that the labor law was an unconstitutional vlolation of the city's rights and powers-is not, however, determined by the Atkin Case. Though a municipality has no rights, as against the state, protected by the federal Constitution, its relation to the state government and the extent of the power of the Legislature to control it are to be determined exclusively by the provisions of the state Constitution, which may bestow upon a municipality such degree of autonomy as the people see fit. Hence, so far as the decision in the Rodgers Case rests on this ground, it is in no way impaired by the Atkin Case.

The last case we...