Ryan v. City of New York

• Decision Date: 29 January 1904
• Citation: 177 N.Y. 271,69 N.E. 599
• Parties: RYAN v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

177 N.Y. 271

69 N.E. 599

RYAN

v.CITY OF NEW YORK.

Court of Appeals of New York.

Jan. 29, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Pierce Ryan against the city of New York. From a judgment of the Appellate Division (79 N. Y. Supp. 599) affirming a judgment for defendant, plaintiff appeals. Affirmed.

O'Brien, Bartlett, and Vann, JJ., dissenting.

David B. Hill, Carlos C. Alden, and Ingle Carpenter, for appellant.

George L. Rives, Corp. Counsel (Edward J. McGuire, of counsel), for respondent.

PARKER, C. J.

There are two questions presented by this review. The first is: Has the Legislature power to provide that its employés and those of the several municipalities shall receive ‘not less than the prevailing rate’ of wages in the locality? In other words, has the Legislature-which possesses all the power of the sovereign not expressly withheld by the Constitution-power to provide that work done for it or its several subdivisions shall be paid for at such a rate as individuals and corporations in the same locality pay? That question was before this court some years ago in so far as it affects the right of the Legislature to fix the rate of wages of laborers upon the works of the state. Clark v. State of New York, 142 N. Y. 101, 36 N. E. 817. In 1889 the Legislature passed an act (Laws 1889, p. 508, c. 380) providing that the rate of wages upon the public works of the state should be $2 a day. That was more than the then prevailing rate, and there were those who questioned the power of the state to interfere with its agents in fixing the wages of men working under them. They thought the superintendent of public works had the sole power of fixing wages of employés in that department, and therefore could defy the direction of the Legislatureas to the amount of compensation to be paid, although he could disburse such moneys only as were appropriated by the Legislature; and they entreated the Attorney General to commence an action to have the court declare the impotency of the Legislature to interfere on the important subject of compensation to laborers. But when the case reached this court in 1894 the Attorney General was unable to point to the provision of the Constitution which divested the representatives of the people for all matters of legislation of this power, and vested it in the several inferior officials having charge of certain administrative duties conferred upon them in the majority of instances by acts of the same Legislature. The court-unaffected, as was its duty, by the argument that the statute was unwise, and mindful that its duty was discharged fully, and could only be discharged by declaring whether the Legislature had the power to enact the statute complained of-unanimously held that the power belonged to it. Judge O'Brien, writing for the unanimous court, says (142 N. Y. 101, 105,36 N. E. 817, 818): ‘There is no express or implied restriction to be found in the Constitution upon the power of the Legislature to fix and declare the rate of compensation to be paid for labor or services performed upon the public works of the state.’ The principle of that decision controls this one. There the Legislature undertakes to fix arbitrarily the sum to be paid to every employé of the state. Here the Legislature undertakes to provide for the payment of not less than the prevailing rate of wages, not only to the direct employés of the state, but also to its indirect employés working in its several subdivisions-the cities, counties, towns, and villages. In the administration of the affairs of those subdivisions, as well as in those of the state at large, the Legislature is unrestrained, unless by express provisions of the Constitution. As expressed in Rodgers' Case, 166 N. Y. 1, 29,59 N. E. 716, 726,82 Am. St. Rep. 605, 52 L. R. A. 814: ‘The authority of the state is supreme in every part of it, and in all of the public undertaking the state is the proprietor. For convenience of local administration the state has been divided into municipalities, in each of which there may be found local officers exercising a certain measure of authority, but in that which they do they are but the agents of the state, without power to do a single act beyond the boundary set by the state acting through its Legislature.’ Thus all of these agencies and employés in the several municipalities are doing the work of the state, which is the sovereign and master.

Nevertheless, we find that the argument is again made, as in 1894 in Clark's Case, that the Legislature is without power to interfere with the agencies it has created for the government of the municipalities. And this is said in the face of the decision in Clark's Case, and notwithstanding the fact that the Legislature has the power at any time to absolutely change the form of government of a municipality, to blot out of existence any municipal charter, or to consolidate several municipalities under a single charter, as it did in the creation of Greater New York. And this argument is made in spite of the many well-known illustrations of the power of the Legislature to control the affairs of municipalities. The scope of that power is illustrated by the construction of the new aqueduct by a board created by the Legislature, the expense being charged upon the city of New York, although not a single officer of the city had a voice in controlling the expenditure of the millions that its construction involved; and by the act compelling the elevation of the Harlem Railroad tracks in the city of New York, and the imposition of one-half of the expense, amounting to several millions, upon the city of New York, the work all being done through an agency created by the state.

Not only does the Legislature fix the salaries of the principal municipal officers throughout the state, but in the city of New York, where this case arises, it fixes the rate of compensation for many laborers. The street-cleaning department will serve as an illustration. The charter provides for the payment of definite sums in some cases, and for a maximum sum in others, for a force numbering over 5,000 employés in that department, and including 3,100 sweepers [177 N.Y. 275]and 1,600 drivers, hostlers, and stable foremen. The charter in this respect has the support of Clark's Case, supra. Now there are a few mechanics connected with the department whose compensation is not fixed by the charter, and who, therefore, come under the prevailing rate provision of the labor law. Their compensation could be fixed, of course, at a definite sum, as that of the other employés is, but instead it is provided in effect that they shall be paid at a rate not less than that paid by others for similar services in that locality. Certainly no one can argue that the Legislature can provide that the street sweeper shall be paid, for example, $2 a day, but cannot provide that he shall be paid the prevailing rate of wages when that happens to be $2. But if one can be found who will attempt to make such an argument, surely it can be safely said that he cannot find a constitutional provision upon which to rest it.

Since the foregoing was written, the opinion of the United States Supreme Court in Atkin v. State of Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148, has been brought to our attention. It is in point, and decides the question in accordance with the views we have already expressed. A Kansas statute (Gen. St. 1901, §§ 3827-3829) provides that: ‘Eight hours shall constitute a day's work for all laborers, workmen, mechanics or other persons now employed, or who may hereafter be employed by or on behalf of the state of Kansas, or by or on behalf of any county, city, township or other municipality of said state. * * * Not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics and other persons employed by or on behalf of the state of Kansas, or any county, city, township or other municipality of said state. * * * All contracts hereafter made by or on behalf of the state of Kansas, or by or on behalf of any county, city, township or other municipality of said state, with any corporation, person or persons, for the performance of any work or the furnishing of any material manufactured within the state of Kansas, shall be deemed and considered as made upon the basis of eight hours constituting a day's work.’ A violation of the statute is a misdemeanor. Atkin made a contract with a municipality (Kansas City) to pave a street. He was convicted under the statute, and the conviction affirmed by the Kansas Supreme Court. It was argued before the United States Supreme Court that the statute violates the fourteenth amendment, in that it deprives the contractor of his liberty and property without due process of law, and denies him the equal protection of the laws. The court holds that the statute does not violate the fourteenth amendment, and in the course of the opinion, written by Mr. Justice Harlan, says: “If a statute,' counsel observes, ‘such as the one under consideration, is justifiable, should it not apply to all persons and to all vocations whatsoever? Why should such a law be limited to contractors with the state and its municipalities? * * * Why should the law allow a contractor to agree with a laborer to shovel dirt for ten hours a day in performance of a private contract, and make exactly the same act under similar conditions a misdemeanor when done in performance of a contract for the construction of a public improvement? Why is liberty with reference to contracting restricted in one case and not in the other?’ These questions-indeed, the entire argument of defendant's counsel-seem to attach too little consequence to the relation existing between a state and its municipal corporations. Such corporations are the creatures-mere political subdivisions-of the state for the purpose of exercising a...