v.

ORANGE COUNTY ROAD CONSTRUCTION COMPANY, Appt.

(175 N. Y. 84.)

1. The state cannot forbid independent contractors, performing work for it, to require their employees to labor more than a specified number of hours per day, either under its police power, or on the ground that the legislature may prescribe rules for the manner in which state work shall be performed.

2. A statute prescribing a penalty for requiring more than a certain number of hours' labor from employees engaged in performing work for the state, which is void because applying to all persons generally, cannot be enforced, even against persons who have contracted not to exact more than specified labor.

3. An indictment for violating a statute prohibiting the breach of a contract not to exact more than a specified number of hours of labor per day from persons engaged on state work must show the existence of an express contract, or that the accused was bound by an implied one, by force of statute or otherwise. (Haight, J., dissents.)

(April 28, 1903.)

NOTE.-Limitation of hours of labor by statute or ordinance.

of the Appellate Division of the Supreme Court, Second Department, reversing a judgment of the Orange County Court which sustained a demurrer to an indictment charging defendant with violation of the statute limiting the hours of labor. Reversed.

The facts are stated in the opinion. Mr. William D. Guthrie, for appellant:

The statute deprives the defendant corporation of liberty and property without due process of law, and denies to it the equal protection of the laws, and, therefore, is in conflict with the state and national Constitutions.

Holden v. Hardy, 169 U. S. 366, 395, 398, 42 L. ed. 780, 792, 793, 18 Sup. Ct. Rep. 383; People v. Lochner, 73 App. Div. 120, 76 N. Y. Supp. 396; People v. Phyfe, 136 N. Y. 554, 19 L. R. A. 141, 32 N. E. 978; Com. v. Hamilton Mfg. Co. 120 Mass. 383; Wenham v. State, 65 Neb. 394, 58 L. R. A. 825, 91 N. W. 421; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 46 Am. St. Rep. 315, 40 N. E. 454.

The constitutional guaranty was adopted for the purpose of securing individual rights, and protecting all persons against

II. Constitutionality of statute.

a. Under Federal Constitution.

1. In general, 38.

2. Due process of law, 40.
3. Equal protection of the laws,
42.

4. Impairing obligation of contract,
42.

b. Under state Constitution, 42. III. Police power of state, 44. IV. Right to extra compensation for labor in excess of limited time, 46.

V. Criminal liability for violation of statute, 50.

I. General construction and application of statute.

In the following division will be found the

offend any of the provisions of either the Federal or a state Constitution.

Where a state statute provides "that eight hours shall constitute a day's work for all laborers, workingmen, 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, except in cases of extraordinary emergency, etc.," an ordinance of a city which requires male residents between the ages of twenty-one and forty-five years to perform two days' work of ten hours a day on the public streets, or pay $3 in lieu thereof, is invalid as being obnoxious to the provisions of the statute. Re Ashby, 60 Kan. 101, 55 Pac. 336.

A city, in contracting to pave a public street, exercises delegated authority, and acts as an

Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 560, 46 L. ed. 679, 690, 22 Sup. Ct. Rep. 431; Cotting v. Kansas City Stock Yards Co. 183 U. S. 79, 87, 46 L. ed. 92, 100, 22 Sup. Ct. Rep. 30; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 154, 155, 41 L. ed. 666, 668, 17 Sup. Ct. Rep. 255; Yick Wo v. Hopkins, 118 U. S. 356, 369, 30 L. ed. 220, 226, 6 Sup. Ct. Rep. 1064; Niagara F. Ins. Co. v. Cornell, 110 Fed. 816; Shaver v. Pennsylvania Co. 71 Fed. 931; Leep v. St. Louis, I. M. & S. R. Co. 58 Ark. 407, 23 L. R. A. 264, 41 Am. St. Rep. 109, 25 S. W. 75; Re Eight-Hour Law, 21 Colo. 29, 39 Pac. 328; Re Morgan, 26 Colo. 415, 47 L. R. A. 52, 77 Am. St. Rep. 269, 58 Pac. 1071; State v. Haun, 61 Kan. 146, 47 L. R. A. 369, 59 Pac. 340; Bessette v. People, 193 Ill. 334, 56 L. R. A. 558, 62 N. E. 215; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 46 Am. St. Rep. 315, 40 N. E. 454; Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 37 Am. St. Rep. 206, 35 N. E. 62; Ramsey v. People, 142 Ill. 380, 17 L. R. A. 853, 32 N. E. 364; Frorer v. People, 141 Ill. 171, 16 L. R. A. 492, 31 N. E. 395; Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. E. 631; Gastineau v. Com. 108 Ky. 473, 49 L. R. A. 111, 56 S. W. 705; Com. v. Perry, 155 Mass. 117, 14 L. R. A. 325, 31 Am. St. Rep. 533, 28 N. E. 1126; Templar v. State Board of Examiners, 131 Mich. 254, 90 N. W. 1058; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. 350; Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 43 Am. St. Rep. 670, 59 N. W. 362; |

tract by which he was to receive a certain sum. That his claim was duly proved, and a resolution adopted by the proper board allowing the amount against the general funds of the city; but the defendant, as auditor, refused to draw a warrant for the amount on the ground that the petitioner had permitted a number of laborers and mechanics to work upon the contract more than eight hours per day, and had thereby incurred penalties to a certain amount, under an act limiting the number of hours of daily service of laborers and mechanics, etc., upon public works of the state or any political subdivision thereof; and a judgment sustaining a demurrer to the defendant's answer to that effect was affirmed. The grounds for sustaining the demurrer were: First, that the answer should have shown that there were penalties stipulated in the contract, in order to authorize anyone to withhold any amount of the contract price; second, that in such case the penalties could only be withheld by the officer or person whose duty it was to pay the money due under the contract; and it was no part of the duty of the auditor to pay such money; neither had he any authority to refuse to draw his warrant.

In State v. Wilson, 65 Kan. 235, 69 Pac. 172, a judgment of the district court quashing an information against the defendant for a violation of the eight-hour law, on the ground that a school district was not a municipality within the meaning of that law, was reversed.

State ex rel. Bramley v. Norton, 5 Ohio N. P. 183; Godcharles v. Wigeman, 113 Pa. 431, 6 Atl. 354; State v. Cadigan, 73 Vt. 245, 57 L. R. A. 666, 87 Am. St. Rep. 714, 50 Atl. 1079; Seattle v. Smyth, 22 Wash. 327, 79 Am. St. Rep. 939, 60 Pac. 1120; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 25 Am. St. Rep. 863, 10 S. E. 285; State v. Fire Creek Coal & Coke Co. 33 W. Va. 188, 6 L. R. A. 359, 25 Am. St. Rep. 891, 10 S. E. 288; State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 58 L. R. A. 748, 91 Am. St. Rep. 934, 90 N. W. 1098.

Although counties and other municipal corporations are public, as distinguished from strictly private, corporations, and, in political and governmental matters, are the representatives and auxiliaries of the state, nevertheless, in all other matters, they are separate, distinct entities, independent of the state, with property rights which are protected by the Constitution, and of which they cannot be deprived without due process of law and just compensation.

4

Dartmouth College V. Woodward, Wheat. 518, 694, 4 L. ed. 629, 673; People v. Ingersoll, 58 N. Y. 1, 17 Am. Rep. 178; People ex rel. Einsfeld v. Murray, 149 N. Y. 367, 32 L. R. A. 344, 44 N. E. 146; Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39; Mt. Hope Cemetery v. Boston, 158 Mass. 509, 35 Am. St. Rep. 515, 33 N. E. 695; Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; Atkins v. Randolph, 31 Vt. 226; State ex rel. Wheeler v. Foley, 30 Minn. 350, 15 N.

By the provisions of what is known as the shop hours act of 1892, § 3, "no young person shall be employed in or about a shop for a longer period than seventy-four hours, including mealtimes, in any one week." It was held that the employment of one who was a "young person" within the meaning of the act, whose work was done partly inside the shop and partly away from it in fetching newspapers and delivering them to customers for more than the prescribed number of hours, was a violation of the act; the court saying that it must consider what was the object of the act and the mischief which it was intended to prevent, and that that object was to protect the health of young persons employed in shops, and not to insure sanitary conditions. Collman v. Roberts [1896] 1 Q. B. 457, 65 L. J. Mag. Cas. N. S. 63, 74 L. T. N. S. 198, 44 Week. Rep. 445, 18 Cox C. C. 273, 60 J. P. 184.

By the factory and workshop act of 1878 (41 & 42 Vict. chap. 16), § 17, subsec. 2, "a child, young person, or woman, shall not, during any part of the times allowed for meals in the factory or workshop, be employed in the factory or workshop." In Prior v. Slaithwaite Spinning Co. [1898] 1 Q. B. 881, 67 L. J. Q. B. N. S. 615, 78 L. T. N. S. 532, 46 Week. Rep. 488, 62 J. P. 358, 19 Cox C. C. 54, it appeared that the respondents, in accordance with the requirements of the act, had fixed and specified in a notice affixed to their factory the period of employment and times allowed for meals,

W. 375; Milam County v. Bateman, 54 Tex. 153; Grogan v. San Francisco, 18 Cal. 590. The discretion of the legislature in respect to the use and disposition of state funds and the funds and property of municipal corporations is not absolute, but is restrained by the Constitution.

Re Mahon, 171 N. Y. 263, 89 Am. St. Rep. 810, 63 N. E. 1107; Chapman v. New York, 168 N. Y. 80, 56 L. R. A. 846, 85 Am. St. Rep. 665, 61 N. E. 108; Re Greene, 166 N. Y. 485, 60 N. E. 183; Bush v. Orange County, 159 N. Y. 212, 45 L. R. A. 556, 70 Am. St. Rep. 538, 53 N. E. 1121.

So far as the act in question operates to bestow extra compensation upon the employees of public contractors, and, without consideration, to increase the amount payable to contractors, it is clearly a giving of the money of the state to and in aid of private undertakings.

Re Mahon, 171 N. Y. 263, 89 Am. St. Rep. 810, 63 N. E. 1107; Fox v. Mohawk & H. River Humane Soc. 165 N. Y. 517, 51 L. R. A. 681, 80 Am. St. Rep. 767, 59 N. E. 353; Brown v. Maryland, 12 Wheat. 419,

6 L. ed. 678.

Messrs. L. Laflin Kellogg and William Vanamee, also for appellant:

If the legislature has no right to prescribe the rate of wages, neither has it, in the absence of some good reason for the public welfare, the right to prescribe the hours of labor. Both are matters for agreement between employer and employee. The one of the times for meals being from 12:30 to 1 P. M.; that one of the employees who came within the description of "young per son" had his dinner in the mill because it was warmer than outside. He had finished his dinner, and, because he had nothing else to do to pass the time away, he got hold of the oilcan and was oiling the spindles. It was no part of his duty to oil the spindles, and no one told him to do so; nor did any of the managers know that he was oiling them. He would not receive any extra pay for oiling them. What he did was contrary to orders, and done of his own accord. The court held that the mere fact that this boy did this to please himself and without orders from anyone did not make it any the less work, and that, therefore, he was working; that the policy of the act in regard to this question of working at mealtimes was that persons who were regard ed by the legislature as comparatively defenseless should have their mealtimes reserved intact, and for that purpose the legislation was rigorous. In response to the suggestion that there were cases of hardship in which the moral offense could not be brought home to anybody, and therefore the emplover was liable although he really was not responsible for what was done, the court said that the true answer to that was, the absolute and unfettered discretion which was vested in the justices, both of moderating the fine and in dealing with the

same rule as to freedom of contract applies to both.

Cleveland v. Clements Bros. Constr. Co. 67 Ohio St. 197, 59 L. R. A. 775, 93 Am. St. Rep. 670, 65 N. E. 885; State ex rel. Bramley v. Norton, 5 Ohio N. P. 183; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Marx, 99 N. Y. 378, 52 Am. Rep. 34, 2 N. E. 29; People v. Gillson, 109 N. Y. 389, 4 Am. St. Rep. 465, 17 N. E. 343; Colon v. Lisk, 153 N. Y. 188, 60 Am. St. Rep. 609, 47 N. E. 302; People v. Hawkins, 157 N. Y. 1, 42 L. R. A. 490, 68 Am. St. Rep. 736, 51 N. E. 257; People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116, 43 L. R. A. 264, 68 Am. St. Rep. 763, 51 N. E. 1006; People ex rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. 776; Godcharles v. Wigeman, 113 Pa. 431, 6 Atl. 354; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 25 Am. St. Rep. 863, 10 S. E. 285; State v. Fire Creek Coal & Coke Co. 33 W. Va. 188, 6 L. R. A. 359, 25 Am. St. Rep. 891, 10 S. E. 288; Ramsey v. People, 142 Ill. 380, 17 L. R. A. 853, 32 N. E. 364; Frorer v. People, 141 Ill. 171, 16 L. R. A. 492, 31 N. E. 395; Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 37 Am. St. Rep. 206, 35 N. E. 62; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 46 Am. St. Rep. 315, 40 N. E. 454; Gillespie v. People, 188 Ill. 176, 52 L. R. A. 283, 80 Am. St. Rep. 176, 58 N. E. 1007: Re Preston, 63 Ohio St. 428, 52 L. R. A. 523, 81 Am. St. Rep. 642, 59 N. E. 109; Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 43 Am. St. Rep. 670, 59 N. W.

costs; and that the case must be remitted to the justices to convict.

A statute entitled "An Act to Regulate the Manufacture of Clothing, Wearing Apparel, and Other Articles, etc.," and providing in the body that no female shall be employed in any factory or workshop more than eight hours a day, will embrace only employment in the manufacture of articles of the same kind as those expressly enumerated. Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 46 Am. St. Rep. 315, 40 N. E. 457.

The act of Massachusetts which provides that no minor under eighteen years of age, and no woman over that age, shall be employed more than ten hours in any one day in any manufacturing establishment, also provides that any person, firm, or corporation employing such persons in such establishment shall post a printed notice in a conspicuous place in every room where such help is employed, which notice shall state the number of hours' work required of such person on each day of the week; and in Com. v. Osborn Mill, 130 Mass. 33, it was decided that a complaint which alleged that a manufacturing corporation employed a woman in its manufacturing company without having posted a printed notice in a conspicuous place in the room where she was employed, to wit, the clothing room, stating the number of hours' work required of such persons on each day of the week, as required by the statute, is insufficient in not alleging that the woman was em

362; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. 350; Com. v. Perry, 155 Mass. 117, 14 L. R. A. 325, 31 Am. St. Rep. 533, 28 N. E. 1126; Johnson v. Goodyear Min. Co. 127 Cal. 4, 47 L. R. A. 338, 78 Am. St. Rep. 17, 59 Pac. 304; State v. Haun, 61 Kan. 146, 47 L. R. A. 369, 59 Pac. 340; Re Morgan, 26 Colo. 415, 47 L. R. A. 52, 77 Am. St. Rep. 269, 58 Pac. 1071; Denver v. Bach, 26 Colo. 530, 46 L. R. A. 848, 58 Pac. 1089; Ex parte Kuback, 85 Cal. 274, 9 L. R. A. 482, 20 Am. St. Rep. 226, 24 Pac. 737; Fiske v. People, 188 Ill. 206, 52 L. R. A. 291, 58 N. E. 985; Seattle v. Smyth, 22 Wash. 327, 79 Am. St. Rep. 939, 60 Pac. 1120.

The provisions in question have no relation whatsoever to the public health, safety, or morals, and cannot be held valid as a police regulation.

Colon v. Lisk, 153 N. Y. 188, 60 Am. St. Rep. 609, 47 N. E. 302; People ex rel. Warren v. Beck, 10 Misc. 83, 30 N. Y. Supp. 473; Cleveland v. Clements Bros. Constr. Co. 67 Ohio St. 197, 59 L. R. A. 775, 93 Am. St. Rep. 670, 65 N. E. 885; Re Morgan, 26 Colo. 415, 47 L. R. A. 52, 77 Am. St. Rep. 269, 58 Pac. 1071; Re Eight-Hour Law, 21 Colo. 29, 39 Pac. 328; Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 43 Am. St. Rep. 670, 59 N. W. 362; Ritchie v. People. 155 III. 98, 29 L. R. A. 79, 40 N. E. 454; Ex parte Kuback, 85 Cal. 274, 9 L. R. A. 482, 20 Am. St. Rep. 226, 24 Pac. 737; Fiske v. People, 188 Ill. 206, 52 L. R. A. 291, 58 N. E. 985; Seattle v. Smyth, 22

ployed in laboring in a manufacturing establishment belonging to the defendant. The court declined to decide whether or not a complaint could be maintained against the defendant for its failure to post the notice required by the statute without proof that it had employed, in laboring, minors or women more than ten hours a day or sixty hours a week.

By the passage of an act providing that eight hours should constitute a legal day's work for all classes of mechanics, workingmen, and laborers, excepting those engaged in agricultural or domestic labor, the legislature did not intend that the act should apply to la berers employed except by the day. Helphenstine v. Hartig, 5 Ind. App. 172, 31 N. E. 845.

Where a statute provided that eight hours shall constitute a legal day's work for all classes of employees in the state, except in cases of extraordinary emergency caused by fire, flood, or danger to life or property, a requirement by water commissioners of a city, who had found it necessary to place a new pump in position in order to increase the pumping capacity of the system and guard against the disastrous consequences which might possibly result from any breakage or impairment of the single pump which had theretofore been the sole reliance of the city, that an extra force of men be employed to make the necessary excavations and foundations for the pump,

Wash. 327, 79 Am. St. Rep. 939, 60 Pac. 1120; State ex rel. Bramley v. Norton, 5 Ohio N. P. 183.

The dual character of a municipal corporation, i. e., public and private, is clearly recognized in a long line of decisions in this state arising out of the question of the liability of such a corporation for the negligent performance of public work. When the work relates to the interests of the public at large, and is being performed by the corporation in its governmental capacity, it is held not to be liable for negligent performance.

Maxmilian v. New York, 62 N. Y. 160, 20 Am. Rep. 468; Ham v. New York, 70 N. Y. 459; Terhune v. New York, 88 N. Y. 247, 42 Am. Rep. 248; Tone v. New York, 70 N. Y. 157; Smith v. Rochester, 76 N. Y. 506; Heiser v. New York, 104 N. Y. 68, 9 N. E. 866.

But when the work is being performed by it in its proprietary or private capacity, for the benefit of its citizens as a compact community, then the officers in charge are held to be its agents, for whose negligence it is liable, and such are the cases of

Appleton v. Water Comrs. 2 Hill, 432; Bailey v. New York, 3 Hill, 538, 38 Am. Dec. 669; Walsh v. New York & B. Bridge, 96 N. Y. 428, 107 N. Y. 220, 13 N. E. 911; New York & B. Sawmill & Lumber Co. v. Brooklyn, 71 N. Y. 580; New York v. Tenth Nat. Bank, 111 N. Y. 446, 18 N. E. 618; Missano v. New York, 160 N. Y. 123, 54 N. E. 744.

who were to work ten hours each day, was a case of such extraordinary emergency; and a writ of certiorari to review the action of the mayor and council in refusing to remove the commissioners for a violation of the statute was dismissed. People ex rel. Usoy v. Waring, 52 App. Div. 36, 64 N. Y. Supp. 865.

In Bakers' Employment Act, 6 Pa. Dist. R. 480, is the attorney general's opinion to the effect that, under that act, which provides "that no employee shall be required, permitted, or suffered to work in a biscuit, bread, or cake bakery, confectionary establishment, more than six days in any one week; said week to commence on Sunday not before 6 o'clock post meridian, and to terminate at the corresponding time on Saturday of the same week,"-the week might commence at any time on Sunday after 6 o'clock in the evening, and would terminate at the corresponding hour on Saturday of the same week.

In Bachelder v. Bickford, 62 Me. 526, the court said: "When a contract to work in a gristmill at 8 shillings per day, to be paid weekly, is silent as to the length of time that shall constitute a day's work, the rule established by the statutes of this state, that 'in all contracts for labor ten hours of actual labor shall be a legal day's work, unless the contract stipulates for a longer time,' is applicable." Rev. Stat. chap. 82, § 36. It is not monthly labor, nor agricultural employment.