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tion for all others engaged in the service of the State, and so the demand of one, Clarke, who was employed upon the canals, for the compensation fixed by the Legislature, was challenged and finally came to this court, where the question was put at rest by a unanimous decision, which held that '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 Legislature is doubtless open to criticism from the standpoint of sound policy and expediency, but the courts have nothing to do with these questions so long as it is not in conflict with the Constitution, and we think that a general law regulating the compensation of laborers employed by the State or by officers under its authority, which disturbs no vested right or contract, was within the power of the Legislature to enact, whatever may be said as to its wisdom or policy.' (Clarke v. State of N. Y., 142 N. Y., 101.)

Now, certainly it need not be argued that, if the Constitution contains no restriction upon the power of the Legislature to fix and declare the rate of compensation to be paid for labor or services performed on the public works of the State,' there is nothing in the Constitution to restrict the power of the Legislature in declaring that 'the rate of compensation to be paid for labor or services performed on the public works of the State''shall (in the language of the statute) not be less than the prevailing rate for a day's work in the same trade or occupation in the locality within the State where such public work on, about or in connection with which labor is performed, in its final or completed form is to be situated, erected or used.' So, if authority be needed, we have the authority of this court that the Legislature has the power to provide that the policy of the State shall be to pay the going rate of wages in the locality in which a public work is to be done and to command its agents to obey its directions in that regard. For illustration: Were it now engaged in the erection of a new capitol, the public officer or officers having in charge the construction by appointment of the Legislature, would, under the authority of the Clarke case, be obliged to pay the prevailing rate of wages in Albany, and if, in the course of construction, it should be determined to do some part of the work by contract, as was the case during the last year of work upon the capitol, those having in charge the construction would be obliged to provide in the contract that the contractor shall pay the prevailing rate of wages in Albany. Of course, a contractor would not be obliged to accept a contract under such terms; but certainly would do so if he wished the work, for the State as proprietor would have the right to impose any terms it might choose as a condition of awarding the contract, just as an individual might do. Terms might thus be imposed which would be unwise or very foolish for both the State and the contractor, in the estimation of the latter; but it is the proprietor's right to be unwise if he so wills, in which respect the State is perhaps both in theory and practice on an equality with its citizens. The provision in the contract requiring, in effect, that he should pay the going wages would, of course, interfere with his liberty to hire men for lower wages. So a provision that he must use a certain brand of cement which is no better and costs more than other brands

would interfere with his liberty to buy first-class cement at a lower price than the brand named. A provision that some or all of the figurework cut out of stone should be done by workmen from Italy, would perhaps interfere with the employment at less expense of men of equal or greater skill at home who could do equally good or better work, and to that extent his liberty to so contract as to make a greater profit for himself, without injury to the proprietor, would be interfered with; but it is interfered with only because he assents to the proprietor's wishes and contracts that it shall be so, and hence his liberty is not interfered with at all within the meaning of the Constitution; for he has solemnly covenanted in his agreement that he shall not be at liberty to do anything in the course of the performance of the contract that shall be contrary to the wishes of the proprietor as expressed in the written contract."

Judge Parker then goes on to show that the Legislature has an equal right to prescribe the terms of the contracts for public. work entered into by the municipalities of the State. "The authority of the State," he says, "is supreme in every part of it, and in all of the public undertakings the State is the proprietor." The argument is developed at length but is so largely a matter of precedent that it would be unprofitable to reproduce it here. We will simply quote the precedent cited by Judge Parker as having absolute authority in the matter: "A municipal corporation is, so far as its purely municipal relations are concerned, simply an agency of the State for conducting the affairs of government and as such it is subject to the control of the Legislature." (Williams v. Eggleston, 170 U. S. 304.)

Two points in the opinion of Judge Landon deserve attention: In one, he denies that analogy exists between the quality of materials to be used in public work and the rate of wages to be paid to workmen employed thereon; in the second, he exposes the indefiniteness of the legal phrase "the prevailing rate of wages:"

"The State, like an individual, may contract for the kind and quality of materials to be furnished in a given construction; otherwise it may not get what it wants. It is, I submit, false analogy to assume that it has the right to dictate to the contractor the wages he shall pay his workmen. They are not parties to the contract; it is not made for their benefit; the State cannot directly give them gratuities, and, therefore, cannot indirectly do so through the contractor; much less by extortion masked under the power to contract. Conceding that the State has a benevolent sentiment of concern in the matter of workmen's wages, that sentiment has no relation to the subject-matter the contractor has agreed

to deliver; and because it has none, the contrary claim of the State has no just basis. The contract calls for a certain kind of work by Rogers, the relator. If he furnished it, it is of no more business concern to the State than to the individual whether he has meantime furnished his workmen with tooth brushes or paid them extra wages.

"It is admitted that the contractor paid less than the prevailing rate of wages. No doubt that is true if the highest rate among the best workmen is the test. But what is the prevailing rate of wages? Is it the rate that the best workmen or the largest mass of workmen, or the average workmen, can command? Does it depend upon ability? If so, of which grade? Or upon numbers? If so, is it the majority of all or of a class? And if of a class, of which class, and why? What rights have those who do not come within the dominant class? Does it depend upon supply and demand? Upon fair competition? How can we tell? Must we not conclude that a statute which simply says the prevailing rate of wages is too indefinite in its meaning to be made the test or condition of a penalty or forfeiture? When a penal statute leaves doubtful the kind of act it denounces, the accused is entitled to the benefit of the doubt, and though he may not insist upon the doubt the State out of self-respect should refrain from inflicting the penalty."


[Meyers vs. the City of New York, 58 App. Div., 534.]

The decision in the case of Rodgers vs. Coler, reported above, left the taxpayers of New York city in an anomalous condition: they were obliged to pay contractors on work under way money enough to insure the maintenance of standard wages, but could not compel the contractors to pay such wages. Unless the workingmen were in a position to compel the payment of the standard rates of wages, the only persons benefited by the decision would be the contractors. A taxpayer thereupon began an action against the city for the cancellation of the contract for the new East River bridge on the ground that said contract was vitiated by the insertion of the prevailing rate of wages clause and his contention was sustained by the Appellate Division, first department, which overruled an interlocutory judgment of the Supreme Court.

The action was brought under the law of 1892 and section 1925 of the Penal Code, to prevent waste of public money, which it was alleged would result from the contract. It was admitted by the defendant that the insertion of the provisions in question

tended to increase the price of the work by compelling the contractor to pay higher wages than he would have had to pay without them. "Therefore," said the court, "we have this condition of affairs, that the law imposed upon the bridge commissioners the duty of requiring that their contractors, as a condition of making the contract to do work upon the bridge, should agree to pay the prevailing rate of wages and employ only citizens of the State of New York; that the law compelling such requirements is unconstitutional; that the effect of it is unduly to increase the price necessary to be paid, and it necessarily follows, as it seems to me, that the insertion of any requirement in the contract which unduly increases the price to be paid for the work operates as a waste of the public money."


[People ex rel. Lentilhon vs. Coler, 168 N. Y., 6.]

An action similar to the case of Rodgers vs. Coler was brought against Comptroller Coler by Eugene Lentilhon, who sought a writ of mandamus requiring the comptroller to draw a warrant for money alleged to be due him for work performed under contract with the city. The refusal of the comptroller to issue such warrants was based on the ground that Lentilhon had failed to comply with the provisions of the contract containing the Labor Law of the State, namely, (1) that he compelled or permitted his cmployees and those performing the work in question, under his supervision and control, to labor more than eight hours a day; and (2) that he had not paid his mechanics, workmen and laborers the prevailing rate of wages, as required by the said Labor Law.

Both the Supreme Court and the Appellate Division refused to issue the mandamus on the ground that as Lentilhon did not have a clear legal right to the amount claimed he should be remitted to the ordinary action for collecting debts.

Upon appeal, the Court of Appeals decided that the granting or withholding of a writ of mandamus was discretionary with the Supreme Court and hence not reviewable by the Court of

Appeals. The decision was notable, however, for its definition of the scope of the decision in Rodgers vs. Coler. Referring to the two clauses of the Labor Law violation of which had been alleged, the court said that the "Labor Law so far as it relates to the prevailing rate of wages" has been held unconstitutional. Continuing, the court declared that:

"This leaves but one issue to be tried, to wit, the constitutionality of the provision of the Labor Law of 1897, as amended, which prohibits more than eight hours of work in any calendar day under contract with the State or a municipal corporation."

Since the close of the Department year, the courts of Tompkins and Orange counties have held the Eight-hour Law unconstitutional on the basis of the reasoning used in Rodgers vs. Coler. The latter case (People vs. Orange County Road Construction Co.) was appealed and the decision of the county court reversed by the Appellate Division of the Supreme Court, Second Department, which on June 13, 1902, unanimously sustained the Eight-hour Law.t


[People ex rel. Treat vs. Coler, 166 N. Y., 144.]

Section 14 of the Labor Law (chapter 415, Laws of 1897) provides that "all stone used in State and municipal works, except paving blocks and crushed stone, shall be worked, dressed and carved within the State," and that the State or municipality shall revoke the contract of a contractor who violates the law.‡ The Court of Appeals, on March 8, 1901, declared this law unconstitutional. With respect to the State Constitution the decision rests on the same grounds as the decision in the case of the prevailing rate of wages law, already set forth.

The case was brought into the courts through the refusal of Comptroller Coler, of New York city, to pay money alleged to be due to Contractor Ralph J. Treat for work done. Upon the com

Condensed from report in the Department's BULLETIN, No. 10 (Sept., 1901), pp. 258-9. Reported in the Department's BULLETIN No. 13 (June, 1902), p. 146.

The law was originally enacted in 1894 (chapter 277), was amended by chapter 413, Laws of 1895, and incorporated in chapter 32 of the general laws (the Labor Law) in

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