1895, chap. 723, p. 484. 1896, chap. 56, p. 23. 1896, chap. 440, p. 401. 1897, chap. 415, p. 461. 1899, chap. 567, p. 1172. criminals of Consolidation corporations §§ 285-291. Change of venue in criminal 227 cases 765 Consolidation of corporations Revised Codes, 1899. 227 Identification of Power to open highways 189 Labor law Bridges part of highway 189 Labor law Roads in care of supervisors 190 1647. General Court of Tryalls General Court of Tryalls. 1650. Attorney general Art. 1, § 8. Property rights 297 248 Statutes. ...... 245 1899, p. 17, chap. 11. Redemption of store orders 595 Sale of merchan dise 315 LAWYERS' REPORTS ANNOTATED. NEW YORK COURT OF APPEALS. PEOPLE of the State of New York, Respt., | APPEAL by defendant from a judgment v. ORANGE COUNTY ROAD CONSTRUC- (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 perJons 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 several decisions in which statutes which in any way change or limit the hours or time of labor are variously construed and applied, as 1. General construction and application of suming that the same are valid and do not statute, 33. II. Constitutionality of statute. a. Under Federal Constitution. 1. In general. 38. 2. Due process of law, 40. 3. Equal protection of the laws, 4. Impairing obligation of contract, 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 "the arbitrary exercise of the powers of S. 356, 369, 30 L. ed. 220, 226, 6 Sup. Ct. government, unrestrained by the established Rep. 1064; Lawton v. Steele, 152 U. S. 133, principles of private rights and distributive 137, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. justice." 499; Allgeyer v. Louisiana, 165 U. S. 578, Bank of Columbia v. Okely, 4 Wheat. 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep. 235, 244, 4 L. ed. 559, 561. The words "liberty and property" were used in the Constitution in a comprehensive, not a restricted, sense. They include the right of everyone to live and work where he will, to earn a livelihood in any lawful way, to pursue any lawful trade or vocation, to contract with freedom in respect of his labor or his property, to exercise his faculties in all lawful ways, to do any act not injurious to the community; and any statute unnecessarily depriving him of the free exercise of these rights is not due process of law, and will be set aside by the courts. Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Marx, 99 N. Y. 377, 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 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. Rodgers v. Coler, 166 N. Y. 1, 52 L. R. A. 814, 82 Am. St. Rep. 605, 59 N. E. 716; People ex rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. 776; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 756, 757, 28 L. ed. 585, 590, 591, 4 Sup. Ct. Rep. 652; Yick Wo v. Hopkins, 118 U. agent for the state; and the latter does not, by authorizing the mayor and council to lay the pavement, surrender its paramount authority over the contract for the city streets. The fact that abutting property owners are charged more for the improvement by the application of the restrictive provisions of the law reducing the hours of labor may be admitted, yet, if the work had been done by the state itself, which has supreme authority in such matters, the property owners could not complain that it employed and paid its servants conformably to the statute in question; and so one who, under a contract with the authorities of a city, permits any of its employees engaged on the work to labor more than eight hours per day is liable to the penalties of what is known as the eight-hour law of Kansas. State v. Atkin, 64 Kan. 174, 97 Am. St. Rep. 343, 67 Pac. 519. Voluntary service for excessive hours is forbidden by a statute which expressly states that its purpose is to limit the usual hours of labor of street-car employees, although it merely forbids officers of the corporation to exact more than a certain number of hours per day. Ten-Hour Law, 24 R. 1. 603, 61 L. R. A. 612, 54 Atl. 602. Re A fireman of the city of New York is not included within the provisions of §§ 2 and 3 of the Laws of 1897, chap. 415, as amended by chap. 298 of the Laws of 1900, which provides that eight hours shall constitute a legal day's 427. The statute before the court, which prevents a class of employers from contracting freely with their employees in the manner permitted to other employers of like labor, deprives that class of liberty and property without due process of law. McCarthy v. New York, 96 N. Y. 1, 48 Am. Rep. 601; People ex rel. Rodgers v. Coler, 166 N. Y. 1, 52 L. R. A. 814, 82 Am. St. Rep. 605, 59 N. E. 716; Cleveland v. Clements Bros. Constr. Co. 67 Ohio St. 197, 59 L. R. A. 775, 93 Am. St. Rep. 670, 65 N. E. 885; Ex parte Kuback, 85 Cal. 274, 9 L. R. A. 482, 20. Am. St. Rep. 226, 24 Pac. 737; Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 43 Am. St. Rep. 670, 59 N. W. 362; 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; Seattle v. Smyth, 22 Wash. 327, 79 Am. St. Rep. 939, 60 Pac. 1120; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 46Am. St. Rep. 315, 40 N. E. 454; Colon v. Lisk, 153 N. Y. 188, 60 Am. St. Rep. 609, 47 N. E. 302. The statute in question also denies to the parties interested the equal protection of the laws. People v. Havnor, 149 N. Y. 195, 31 L. R. A. 689, 52 Am. St. Rep. 707, 43 N. E. 541; work for all classes of employees in the state, except those engaged in farm and domestic service, unless otherwise provided by law, as § 3 refers only to an employee, as defined by § 2,-that is, "mechanic, workingman, or laborer who works for another for hire;"as it is ob vious that the legislature did not intend to include the uniformed members of the fire department within the act. The word "hire" evidently does not relate to public officers, or others holding positions under the city, who are included in the classified lists of the civilservice law, such as the uniformed members of the fire department, who are appointed to position after rigid examination and from competitive lists. No contract of hiring is made with them. They receive annual salaries, not wages, either in the common or legal acceptation of the term. And a writ of mandamus to command the fire commissioner of the city "to carry into effect, execute, and enforce the provisions of the labor law, and to so regulate the rules and regulations of the fire department that engineers and firemen thereof shall not be assigned to more than eight hours' duty in any one calendar day," was refused. Peopie ca rel. Sweeney v. Sturgis, 78 App. Div. 460, 79 N. Y. Supp. 969. In Worthington v. Breed. 142 Cal. 102, 75 Pac. 675, plaintiff filed his verified petition for a writ of mandate, alleging that he performed certain services for a city of which the defendant was auditor. in pursuance of a con |