People v. Orange County Rd. Const. Co.

• Decision Date: 28 April 1903
• Citation: 67 N.E. 129,175 N.Y. 84
• Parties: PEOPLE v. ORANGE COUNTY ROAD CONST. CO.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 84

67 N.E. 129

PEOPLE

v.ORANGE COUNTY ROAD CONST. CO.

Court of Appeals of New York.

April 28, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

The Orange County Road Construction Company was indicted for violating the eight-hour law. From an order of the Appellate Division (77 N. Y. Supp. 16) reversing an order of the county court sustaining a demurrer to the indictment, defendant appeals. Reversed.

Haight, J., dissenting.

William D. Guthrie, L. Laflin Kellogg, and William Vanamee, for appellant.

A. H. F. Seeger and A. V. N. Powelson, for the People.

CULLEN, J.

The appellant was indicted for having, in violation of subdivision 1, § 384h, of the Penal Code, required more than eight hours' work for a day's labor from certain of its employés; it being at the time a contractor with the county of Orange for the performance of a contract entered into by the latter with the state for the improvement of a public highway. The defendant demurred to the indictment on the ground that the facts stated therein did not constitute a crime, because the section of the Penal Code quoted was unconstitutional and void. The county court sustained the demurrer. The Appellate Division reversed the judgment and overruled the demurrer. From the order of the Appellate Division, this appeal is taken.

It seems to me to be entirely clear that the statute cannot be upheld as an exercise of the police power vested in the Legislature. I should think the proposition too plain for debate. But if this assertion be considered dogmatic, then I say that the question is settled by the decisions both of this court and the Supreme Court of the United States. While the filed for the exercise of the police power, subject to which all property is possessed by the citizen, and all his callings or vocations must be pursued, is very broad-so broad that no court has sought to define accurately its extent-still it is subject to recognized limitations. In the interest of public health, of public morals, and of public order, a state may restrain and forbid what would otherwise be the right of a private citizen. It may enact laws to regulate the extent of the labor which women and children or persons of immature years shall be allowed to perform, and prohibit altogether their employment in dangerous occupations. Commonwealth v. Hamilton Manufacturing Co., 120 Mass. 383; Tiedeman's Police Power, § 85. It may limit the hours of employment of adults in unhealthy work (Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780), and it may be that it could prohibit the performance of excessive physical labor in all callings. But as said in Matter of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636, and People v. Gillson, 109 N. Y. 389, 17 N. E. 343,4 Am. St. Rep. 465, while it is generally for the Legislature to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, such measures must have some relation to these ends. In Matter of Jacobs, a law prohibiting the manufacture of cigars or preparations of tobacco in tenement houses was held unconstitutional because it bore no relation to the healty of the occupants of tenement houses. If there were three families or less in the tenement house, however numerous their members, the manufacture was allowed, while if there were more than three families, however few their members and however large and extensive the house, the manufacture was forbidden. The statute now before us does not deal with the character of the work, the age, sex, or condition of the employés, nor even the personality of the employer, but applies only to the case of a contract with the state or a municipality. What possessible bearing on the health or security of the employés or on public health has the fact that the employer is executing a contract for the construction or performance of a state or municipal work? The defendant might be constructing in the next town a road for a turnpike company or for its own use. In this work it could require labor for a many hours a day as it saw fit, and could get workmen to perform. Yet the same action, involving exactly the same character of work, when done in performance of a contract with the public, is by this statute made criminal. If we assume that a general statute forbidding in all cases the performance of physical labor for more than 8 hours out of the 24 would be constitutional,that concession would not sustain the validity of the act before us. The vice of the statute is the arbitrary distinction drawn between persons contracting with the state and other employers. In Gulf, etc., R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, a statute which authorized the award of judgment in actions against railway companies of costs not given in suits against other defendants was held vold, as violating the equal protection of the law guarantied by the federal Constitution, in that it singled them out from all citizens and corporations. It was there said: ‘Classification for legislative purposes must have some reasonable basis upon which to stand. But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the fourteenth amendment forbids this.’ To the same effect is Cotting v. Kansas City Stockyards Company, 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92, and the recent case of Connolly & Dee v. Union Sewer Pipe Company, 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679, in the latter of which cases it was held that a statute of Illinois which forbade business combinations for certain purposes was void because there was excepted from its application agriculturists and live stock dealers. The same doctrine has been recently held by this court in Matter of Pell's Estate, 171 N. Y. 48, 63 N. E. 789,57 L. R. A. 540, 89 Am. St. Rep. 791. See People ex rel. Tyroler v. Warden, 157 N. Y. 116, 51 N. E. 1006,43 L. R. A. 264, 68 Am. St. Rep. 763;Colon v. Lisk, 153 N. Y. 188, 47 N. E. 302,60 Am. St. Rep. 609.

It is urged that the work is a state work, and that the Legislature may prescribe rules for the manner in which it is to be performed. As a general proposition, this is doubtless true. The state may prescribe regulations for the conduct of its employés. Those employés must comply with the mandate of the Legislature. If, in the case of a private person, his foreman or manager should, in intentional violation of the master's command, exact more than eight hours' work a day from the men working under him, the master might discharge him, even though his contract of employment was for a definite term. In the case of the state, the employer being not only master, but sovereign, it may be that it could go further, and make the violation of its mandates criminal. This statute, however, does not deal with employés-at least not exclusively with them. The section reads: ‘Any person or corporation who, contracting with the state or a municipal corporation, shall require more than eight hours' work, for a day's labor * * * is guilty of a misdemeanor.’ The statute does not define the meaning of ‘contracting with the state or a municipal corporation.’ Doubtless a person who is a mere employé of the state or of a municipal corporation contracts for the performance of his service. I suppose, however, the statute was intended to apply to the case of what is known in law as an ‘independant contractor’; that is to say, one who contracts to perform the work at his own risk and cost-the workmen being his servants, and he (not the state or corporation with whom he contracts) being liable for their misconduct. If it does not apply exclusively to such contractors, it includes them. If not, that is the end of this case, for it does not appear in the indictment that the defendant was not an independent contractor. Now, while, as I have said, if the state itself prosecutes a work, it may dictate every detail of the service required in its performance-prescribe the wages of workmen, their hours of labor, and the particular individuals who may be employed-no such right exists where it has let out the performance of the work to a contractor, unless it is reserved by the contract. The state in this respect stands the same as its citizens. Its rights are just as great as those of private citizens, but no greater.

As the law cannot be upheld either as a valid exercise of the police power, or because the work was being done for the state, to sustain it,...