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pletion of the contract, the city officials had inspected and accepted the work, but before they had paid for same, protest was made to the comptroller that the contract had been violated through the use of stone dressed in New Jersey. The comptroller refused to pay the account and the contractor applied to the Supreme Court at Special Term for a writ of mandamus, which was refused. Appeal was then taken to the Appellate Division (December Term) which by a bare majority of one granted the application. Justice Hatch wrote the prevailing opinion, which was concurred in by Justices Ingraham and McLaughlin, the latter solely on account of the authority of the Rodgers case. Presiding Justice Van Brunt read a dissenting opinion, which was concurred in by Justice Morgan J. O'Brien. This decision did not pass upon the constitutionality of the statute, but held that the city was bound to pay the contractor after having accepted his work. The comptroller had no authority to withhold the warrant for payment, the delivery of the warrant being a purely ministerial act.

Comptroller Coler appealed the case and on March 8, 1901, the Court of Appeals handed down a decision affirming the order of the lower court on the ground that the law itself is unconstitutional for the same reasons that the prevailing rate of wages law (Rodgers v. Coler) was held unconstitutional and for the additional reason that it violated the interstate commerce clause of the United States Constitution. Thus, Judge O'Brien, who read the prevailing opinion, said:

"This case presents a new and additional question which was not involved in the Rodgers case. It will be seen by the provisions of the statute that the city and the contractor have, in effect, been forbidden to purchase a granite sewer basin that had been dressed or carved in any other State. The city and the contractor are virtually prohibited from procuring such dressed or carved stone as may be needed in the construction of the work or the performance of the contract in any other State. The citizen of another State who has prepared, dressed or carved stone for the market is virtually prohibited from selling the same in this State to a municipality or contractor for use in any public work. The stone used in such work must be dressed or carved within the jurisdiction of this State, and if the contractor ignores the statute and procures dressed or carved stone in another State, the city is directed to revoke his con

tract, and thereupon it shall be discharged from all liability to pay him for the work.

"We think that this statute is void, not only for the reasons stated in our decision in the case cited, but for the further reason that it is in conflict with the commerce clause of the Federal Constitution. It is a regulation of commerce between the States which the Legislature had no power to make. The citizens of other States have the right to resort to the markets of this State for the sale of their products, whether it be cut stone or any other article which is the subject of commerce. The citizens of this State have the right to enter the markets of every other State to sell their products, or to buy whatever they need, and all interference with the freedom of interstate commerce by State legislation is void. Under the Constitution of the United States, business or commercial transactions cannot be hampered or circumscribed by State boundary lines, and that is the effect of the statute in question. We do not think it necessary to enter into any argument to establish these propositions, since the ground has been covered by the discussion in two recent cases in this court. (People v. Hawkins, 157 N. Y. 1; People v. Buffalo Fish Co., 164 N. Y. 193.)"

All of the judges concurred except Chief Justice Parker, who read a dissenting opinion, urging the same reasons for dissent that he had in the Rodgers case. He held further that the New York law was not in contravention of the Federal Constitution:

"If that section sought to prevent the citizens of this State from using stone cut and dressed in another State, it would unquestionably offend against the commerce clause of the Federal Constitution and be void. But the statute does not attempt to interfere with the liberty of any citizen to have such stone as he may use cut and dressed where and by whom he shall choose. On the contrary, the statute is but an attempt on the part of a sovereign State to exercise the same function of choice in such regard as the Constitution secures to the citizen. While the State cannot say to the citizen that he must have the stone used in his residence cut and dressed within the State, neither the Federal or State Constitution prevent him from deciding that he will not build a residence unless the stone to be used in it are cut and dressed within the State, nor from incorporating into a contract with a builder a provision that, unless every stone used in the structure be both cut and dressed within the State, the contract shall be void and the contractor deprived of compensation.

"But the liberty of contract with which the citizen is endowed is no greater than that with which the State is invested when it enters on a scheme of construction for the public good. If, as respects freedom of contract, all the people of the State acting together are not greater than one of the units a citizen-they are at least as great and may be as capricious as it is possible for an individual to be touching the style of architecture, quality of materials, character of workmen and rate of compensation that they will offer for work to be performed.

"The Legislature in the statute authorizing the construction of any public work may provide for every detail if it chooses, or it may delegate

the whole or some part of the details to an agent or agency. But whichever method it may adopt the choice of materials and of men and the determination whether the work shall be done by day's work or by contract, are the choice and determination of the sovereign-the peoplespeaking through their chosen representative the Legislature—upon which has been conferred every power and authority not expressly forbidden it by the Constitution, including, therefore, necessarily, the power to determine whether in a public structure brick or stone shall be used, and if the latter, from what quarries they shall be taken, where cut and dressed and by whom-and that is all that section 14 of the Labor Law seeks to accomplish.

"It may not be wise for the Legislature to thus discriminate as to its public work in favor of its own citizens, but whether it be or not the courts have no right to inquire, for they are without authority to correct a statute even if in their judgment it be founded on an erroneous view of sound principles of political economy."


[Davenport v. Walker, 57 App. Div., 223.]

In April, 1900, the Albany county board of supervisors had to let a contract for the construction of an addition to the Albany hospital. For the roofing work two bids were made, one by James Gorman for $1,000, and the other by James Ackroyd for $724.48. Gorman agreed to comply with the terms of a resolution of the board to the effect that he would employ, when prac ticable, members of labor organizations; while Ackroyd refused to sign a contract containing such stipulation, but stated that he would observe all the labor laws of the State, and demanded that the work be let to him as the lowest bidder. This the committee of the board refused to do and was about to let the work to Gorman for $1,000 when Samuel J. Davenport, a taxpayer, sought an injunction perpetually restraining the committee and board of supervisors from so doing. A temporary injunction was granted at the Albany Special Term of the Supreme Court and from this order the board appealed.

On January 9, 1901, the Appellate Division, Third Department, rendered a decision, which was unanimous, sustaining the injunction. Justice Charles E. Parker, in writing the opinion, said that it was a waste of the taxpayers' money to let the con tract to Gorman, when Ackroyd, an equally responsible builder,

offered to do the work 27 per cent cheaper. He characterized the act of the board of supervisors as an attempt "to deprive the non-union workman' of his opportunity to obtain employment in the city of Albany," an "act so clearly against public policy and so violative of constitutional rights and of the first principles of our form of government that it should not be for a moment tolerated." Thus he said that—

"The question is presented whether public officers having in charge the letting and control of public work, to be done at the public expense, may aid and abet such unlawful attempt on the part of a trades organization by refusing to let any public work to those contractors who will not accede to such an unlawful demand. Can it be held, upon any tolerable view of the case, that the public officers of a county may, in concert with any organization of any kind, lawfully engage in an attempt to force all laborers in the county into such organization, or else into starvation for the want of employment?

"And is such concert of action in the least justified by the plea that by so doing they will be more likely to get the public work done in less time, and possibly with less loss and expense? In my judgment, not only the action of the council [the Building Trades Council of Albany], but also the action of the defendants in this case, in demanding that none but members of the organization be employed upon this work, was an act so clearly against public policy, and so violative of constitutional rights and of the first principles of our form of government, that it should not be for a moment tolerated, nor permitted to excuse or justify any act of theirs."*

*Condensed from the Department BULLETIN, March, 1901, pp. 65-8.



The final report of the Industrial Commission, dated February 10, 1902, constitutes the nineteenth and last volume of the Commission's reports. It is a a volume of 1270 pages and treats of the following subjects: Progress of the Nation; Agriculture; Mining; Transportation; Manufactures, Trade and Commerce; Industrial Combinations; Labor; Immigration; Taxation; Irrigation. The space specifically devoted to Labor comprises over 200 pages and concludes with the following recommendations:

Perhaps the subject of greatest public interest to-day is that of the regulation of the hours of labor permitted in industrial occupations, and especially in factories. Most of the Northern and Eastern States prohibit the employment of persons under the full age in factories or other mechanical establishments for more than a prescribed time per diem, usually ten hours, and not exceeding sixty hours per week. Obviously, Congress has no power without a constitutional amendment to legislate directly on this subject. The Commission are of the opinion that a uniform law upon this subject may wisely be recommended for adoption by all the States. We believe that such legislation cannot, under the Federal and State constitutions, be recommended as to persons, male or female, above the age of 21, except, of course, in some special industries where employment for too many hours becomes positively a menace to the health, safety, or well-being of the community; but minors, not yet clothed with all the rights of citizens, are peculiarly the subject of State protection, and still more so young children.

The Commission are of opinion, therefore, that a simple statute ought to be enacted by all the States to regulate the length of the working day for young persons in factories (meaning by "young persons" those between the age of majority and 14); and in view of the entire absence of protection now accorded by the laws of many States to children of tender years we think that the employment of children in factories in any capacity, or for any time, under the age of 14, should be prohibited. The question of shops and mercantile establishments generally appears even more subject to local conditions than that of factories; therefore, the Commission see no need for even recommending to the States any uniform legislation upon this subject. But child labor should be universally protected by educational restrictions, providing in substance that no child may be employed in either factories, shops, or in stores in large

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