People v. Crane

• Decision Date: 25 February 1915
• Citation: 214 N.Y. 154,108 N.E. 427
• Parties: PEOPLE v. CRANE.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 154

108 N.E. 427

PEOPLE

v.CRANE.

Court of Appeals of New York.

Feb. 25, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Clarence A. Crane was convicted of employing aliens as laborers in the performance of a contract for the construction of a municipal sewer, and from a judgment of the Appellate Division (165 App. Div. 499,150 N. Y. Supp. 933) reversing solely for errors of law the conviction, the People, by permission, appeal. Judgment of Appellate Division reversed and conviction affirmed.

Collin, J., dissenting.Charles Albert Perkins, Dist. Atty., of New York City (Robert S. Johnstone, of New York City, of counsel), for appellant.

Edward M. Grout, of New York City, for the People.

Jeremiah A. O'Leary, of New York City, amicus curiae.

CARDOZO, J.

The defendant is a contractor with the city of New York. His contract was for the construction of sewer basins. In doing the work, he employed laborers not citizens of the United States. One of them was an Italian. The nationality of the others is not shown. Because of the employment of these aliens, he has been convicted of violating section 14 of the Labor Law (Laws 1909, c . 36; Consol. Laws, c. 31). The section reads as follows:

‘Sec. 14. Preference in employment of persons upon public works. In the construction of public works by the state or a municipality, or by persons contracting with the state or such municipality, only citizens of the United States shall be employed; and in all cases where laborers are employed on any such public works, preference shall be given citizens of the state of New York. In each contract for the construction of public works a provision shall be inserted, to the effect that, if the provisions of this section are not complied with, the contract shall be void. All boards, officers, agents or employés of cities of the first class of the state, having the power to enter into contracts which provide for the expenditure of public money on public works, shall file in the office of the commissioner of labor the names and addresses of all contractors holding contracts with said cities of the state. Upon the letting of new contracts the names and addresses of such new contractors shall likewise be filed. Upon the demand of the commissioner of labor a contractor shall furnish a list of the names and addresses of all subcontractors in his employ. Each contractor performing work for any city of the first class shall keep a list of his employés, in which it shall be set forth whether they are naturalized or native born citizens of the United States, together with, in case of naturalization, the date of naturalization and the name of the court where such naturalization was granted. Such lists and records shall be open to the inspection of the commissioner of labor. A violation of this section shall constitute a misdemeanor and shall be punishable by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment for not less than thirty nor more than ninety days, or by both such fine and imprisonment.’

[1] The Appellate Division has held that this statute violates both the state and the Federal Constitution. Its effect, we are told, is to deprive the excluded aliens of their liberty without due process of law, in that they are denied the right to labor on the public works. Const. U. S. Amend. 14; Const. N. Y. art. 1, § 6. The effect also is, we are told, to deny to the excluded aliens the equal protection of the laws. Fed. Const. U. S. Amend .14. It is true the defendant is not within the excluded classes. Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 545, 34 Sup. Ct. 359, 58 L. Ed. 713. He is charged, however, with a crime, and the crime is said to have been the refusal to discriminate, and nothing else. The laborers whom he has employed are within the excluded classes; and, if they had a right to serve, he on his side had a right to employ. To refuse to give effect to an unlawful discrimination, and to do this at the instance of those against whom the discrimination is aimed, cannot constitute a crime. The question whether this statute does discriminate against aliens in violation of the Constitution is therefore, we think, before us.

[2] The moneys of the state belong to the people of the state. They do not belong to aliens. The state, through its Legislature, has given notice to its agents that in building its public works it wishes its own moneys to be paid to its own citizens, and, if not to them, then, at least, to citizens of the United States. The argument is made that in thus preferring its own citizens in the distribution of its own wealth it denies to the alien within its borders the equal protection of the laws.

The people, viewed as an organized unit, constitute the state. Penhallow v. Doane's Ad'm, 3 Dall. 54, 100,1 L. Ed. 507;Texas v. White, 7 Wall. 700, 720, 19 L. Ed. 227. The members of the state are its citizens. United States v. Cruikshank, 92 U. S. 542, 549, 23 L. Ed. 588;Minor v. Happersett, 21 Wall. 162, 22 L . Ed. 627. Those who are not citizens are not members of the state. Society thus organized is conceived of as a body corporate. Like any other body corporate, it may enter into contracts, and hold and dispose of property. In doing this it acts through agencies of government. These agencies, when contracting for the state, or expending the state's moneys, are trustees for the people of the state. Illinois Central R. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018. It is the people-i. e., the members of the state-who are contracting or expending their own moneys through agencies of their own creation. Certain limitations on the powers of those agencies result from the nature of the trust. Illinois Central R . R. Co. v. Illinois, supra. Since government, in expending public moneys, is expending the moneys of its citizens, it may not, by arbitrary discriminations having no relations to the public welfare, foster the employment of one class of its citizens and discourage the employment of others. It is not fettered, of course, by any rule of absolute equality; the public welfare may at times be bound up with the welfare of a class; but public welfare, in a large sense, must, none the less, be the end in view. Every citizen has a like interest in the application of the public wealth to the common good, and the like right to demand that there be nothing of partiality, nothing of merely selfish favoritism, in the administration of the trust. But an alien has no such interest; and hence results a difference in the measure of his right. To disqualify citizens from employment on the public works is not only discrimination, but arbitrary discrimination. To disqualify aliens is discrimination, indeed, but not arbitrary discrimination; for the principle of exclusion is the restriction of the resources of the state to the advancement and profit of the members of the state. Ungenerous and unwise such discrimination may be. It is not for that reason unlawful.

[3] The power of a state to discriminate between citizens and aliens in the distribution of its own resources is sanctioned alike by decisions of the courts and by long-continued practice. Neither aliens nor the citizens of other states are invested by the Constitution with any interest in the common property of the people of this state. McCready v. Virginia, 94 U. S. 391, 394, 24 L. Ed. 248. It has been held, therefore, that a state may deny to aliens, and even to citizens of another state, the right to plant oysters or to fish in public waters. McCready v. Virginia, supra; People v. Lowndes, 130 N. Y. 455, 462,29 N. E. 751;Commonwealth v. Hilton, 174 Mass. 29, 54 N. E. 362,45 L. R . A. 475. It may restrict to its own citizensthe enjoyment of its game. Geer v. Connecticut, 161 U. S. 519, 529, 16 Sup. Ct. 600, 40 L. Ed. 793;Patsone v. Pennsylvania, 232 U. S. 138, 145, 34 Sup. Ct. 281, 58 L. Ed. 539. It may discriminate between citizens and aliens in its charitable institution, or in other measures for the relief of paupers. Freund on the Police Power, § 712; State Charities Law (Laws 1909, c. 57) § 17. It may make the same discrimination in the distribution of its public lands (McCready v. Virginia, supra); its mines (Justice Mining Co. v. Lee, 21 Colo. 260, 40 Pac. 444,52 Am. St. Rep. 516); its forests; or other natural resources. It may deny to aliens the right to hold or inherit real estate, except where the right has been secured by treaty. Blythe v. Hinckley, 180 U. S. 333, 341, 21 Sup. Ct. 390, 45 L. Ed. 557. The origin of this last disability is historical (1 Pollock & Maitland History of English Law, 445), but the policy underlying it is akin to the policy that underlies the others. The principle that justifies these discriminations is that the common property of the state belongs to the people of the state, and hence that, in any distribution of that property, the citizen may be preferred.

[4] To defeat this law it must, therefore, be held that the Constitution gives to the state a narrower liberty of choice in the expenditure of its own moneys than in the use or distribution of its other resources. I can find no justification for the supposed distinction. The construction of public works involves the expenditure of public moneys. To better the condition of its own citizens, and, it may be, to prevent pauperism among them, the Legislature has declared that the moneys of the state shall go to the people of the state. The equal protection of the laws is due to aliens as to citizens (Yick Wo v. Hopkins, 118 U. S. 356, 369, 6 Sup. Ct. 1064, 30 L. Ed. 220;Lem Moon Sing v. United States, 158 U. S. 538, 547, 15 Sup. Ct. 967, 39 L. Ed. 1082); but equal protection does not mean that those who have no interest in the common property of the state must share in that property on the same terms as those who have an interest.

[5] In saying this, I assume that the purpose of the...