People v. Crane

The defendant is a contractor with the city of Yew York. His contract was for the construction of sewer basins. In doing the work, he employed laborers not citizens of the United States. One of them was an Italian. The nationality of the others is not shown. Because of the employment of these aliens, he has been convicted of violating section 14 of the Labor Law (L. 1909, ch. 36, Cons. Laws, ch. 31). The section reads as follows:

“ Section 14. Preference in employment of persons upon public works. In the construction of public works by the state or a municipality, or by persons contracting with the state or such municipality, only citizens of. the

United States shall be employed; and in all cases where laborers are employed on any such public works, preference shall be given citizens of the state of New York. In each contract for the construction of public works a provision shall be inserted, to the effect that, if the provisions of this section are not complied with, the contract shall be void. All boards, officers, agents or employees of cities of the first class of the state, having the power to enter into contracts which provide for the expenditure of public money on public works, shall file in the office of the commissioner of labor the names and addresses of all contractors holding contracts with said cities of the state. Upon the letting of new contracts the names and addresses of such new contractors shall likewise be filed. Upon the demand of the commissioner of labor a contractor shall furnish a list of the names and addresses of all subcontractors in his employ. Each contractor performing work for any city of the first class shall keep a list of his employees, in which it shall be set forth whether they are naturalized or native born citizens of the United States, together with, in case of naturalization, the date of naturalization and the name of the court where such naturalization was granted. Such lists and records shall be open to the inspection of the commissioner of labor. A violation of this section shall constitute a misdemeanor and shall be punishable by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment for not less than thirty nor more than ninety days, or by both such fine and imprisonment.”

■ The Appellate Division has held that this statute violates both the state and the federal constitution. Its effect, we are told, is to deprive the excluded aliens of their liberty without due process of law, in that they are denied the right to labor on the public works. (Federal Const. 14th Amendment; State Const, art. 1, sec. 6.) The effect also is, we are told, to deny to the excluded aliens the equal - protection of the laws. (Federal Const. 14th Amend

The moneys of the state belong to the people of the state. They do not belong to aliens. The state, through its legislature, has given notice to its agents,_ that in building its public works, it wishes its own moneys to be paid to its own citizens, and if not to them, then, at least, to citizens of the United States. The argument is made that in thus preferring its own citizens in the distribution of its own wealth, it denies to the alien within its borders the equal protection of the laws.

The people, viewed as an organized unit, constitute the state. (Penhallow v. Doane’s Adm., 3 Dallas, 54, 100; Texas v. White, 7 Wall. 700 , 720.) The members of the state are its citizens. (United States v. Cruikshank, 92 U. S. 542 , 549; Minor v. Happersett, 21 Wall. 162 .) Those who are not citizens, are not members of the state. Society thus organized, is conceived of as a body corporate.' Like any other body corporate, it may enter into contracts, and hold and dispose of property. In doing this, it acts through agencies of government. These agencies, when contracting for the state, or expending the state’s moneys, are trustees for the people of the state. (Illinois v. Illinois Central R. R. Co., 146 U. S. 387 .) It is the people, i. e., the members of the state, who are contracting or expending their own moneys through agencies of their

The power of a state to discriminate between citizens and aliens in the distribution of its own resources is sanctioned alike by decisions of the courts and by long-continued practice. Neither aliens nor the citizens of other states are invested by the constitution with any interest in the common property of the people of this state. (McCready v. Virginia, 94 U. S. 391 , 391.) It has been held, therefore, that a state may deny to aliens, and even to citizens of another state, the right to plant oysters or to fish in public waters. (McCready v. Virginia, supra ; People v. Lowndes, 130 N. Y. 455 , 462; Commonwealth v. Hilton, 174 Mass. 29 .) It may restrict to its own citi

To defeat this law it must, therefore, be held that the " constitution gives to the state a narrower liberty of choice ; in the expenditure of its own moneys than in the use or distribution of its other resources. I can find no justifica- - tion for the supposed distinction. The construction of , public works involves the expenditure of public moneys. To better the condition of its own citizens, and it may be to prevent pauperism among them, the legislature has declared that the moneys of the state shall go to the people of the state. The equal protection of the laws is due to aliens as to citizens (Yick Wo v. Hopkins, 118 U. S. 356 , 369; Lem Moon Sing v. United States, 158 U. S. 538 , 547); but equal protection does not mean that those who have no interest in the common property of the state, must share in that property on the same terms as those who have an interest.

In saying this, I assume that the purpose of the>statute

To concede that such a preference was intended, is not to condemn the statute as invalid. The state in determining what use shall be made of its own moneys," may legitimately consult the welfare of its own citizens rather than that of aliens. Whatever is a privilege rather than a right, may be made dependent upon citizenship. In its war against poverty, the state is not required to dedicate its own resources to citizens and aliens alike. “The relief of the poor, the care of those who ■ are unable to care for themselves, is among the unquestioned objects of public duty.” (Brewer, J., in State ex rel. Griffith v. Osawkee Township, 14 Kan. 421 .) The modern state everywhere is mindful of that duty. It has extended its bounty in large measure, though not without some discrimination, to aliens; but it would not trench upon their rights under the constitution -if it were to confine its bounty to its citizens. As it may discriminate between citizens and aliens in relief, so also it may discriminate in employment. When payment for public works is to be made from public funds, it may prefer in employment its own citizens, since to them the legislature may believe that the first duty is owing. (United States v. Realty Co., 163 U. S. 427 , 440.) Everywhere throughout the world the state, in its relation to the laborer, is assuming a larger obligation; but it cannot' be that it owes this obligation to citizens and aliens in equal measure. In Great Britain there was enacted in 1908 a statute providing for old age pensions, restricted, it may be noted, to British subjects. (8 Edw. Y, chap. 40, sec. 1.) In the same kingdom there was enacted in 1911 a statute providing for insurance against unemployment. (1 & 2 George 5, chap. 55.) In our own country the workmen’s compensation laws that have been adopted in many states are phases of the same world-wide movement. We are

The argument is made, however, that there is a distinction between the right of government to exclude aliens from its own employment and the right to exclude aliens from employment by independent contractors. The ruling of the Supreme Court of the United' States in Atkin v. Kansas ( 191 U. S. 207 ), and in Ellis v. United States ( 206 U. S. 246 ) goes far to invalidate the distinction. The first case considered a statute of Kansas prohibiting the employment of laborers for more than eight hours a day on any public work. The statute was held valid in its application to laborers in the service of contractors. The second case sustained a like statute, passed by Congress, to regulate employment on public works in the District of Columbia. The presence of an independent contractor, interposed between the state and the laborer, did not check the power of the government to prescribe the hours of labor. But without reference to those decisions, the distinction is inadequate. In a real and substantial sense, it is the money of

I do not ignore what was said in People v. Orange County Road Construction Co. ( 175 N. Y. 84 ). There is a suggestion in that case, but not a ruling, that a distinction exists between employees of the state and those of a contractor in respect of the state’s power to regulate the hours of labor. The later case of Atkin v. Kansas ( 191 U. S. 207 ) has obliterated the distinction, and so it was conceded in People ex rel. Cossey v. Grout ( 179 N. Y. 417 ). It is now perceived that all persons engaged on the public works, from the highest officers to the lowest laborers, through all the gradations of contractors and subcontractors, are, in a very vital sense, in the service

To hold that this statute violates the federal constitution would be to ignore the contrary judgment expressed in the constitutions and legislation of many other states. There is a like provision in the constitution of Arizona (Art. 18, sec. 10), a constitution which was approved (so far as this provision is concerned) by joint resolution of congress (37 U. S. Stat. at Large, p. 39). There are like provisions in the constitution of Idaho (Art. 13, sec. 5), and in that of Wyoming (Art. 19, § 1), which were also approved by congress. There is a like provision, restricted, however, to Chinese, in the constitution of California (Art. 19, sec. 3). There are like provisions applicable to all aliens in the statutes of Massachusetts (Acts of 1909, chap. 514, sec. 21), New Jersey (Compiled Statutes of New Jersey, 1910, p. 3023, sec. 15), Pennsylvania (Purdon’s Digest [13th ed.]; vol. 2, p. 2172, sec. 8), and California (California Code, 1906, Act No. 127, General Laws of California). Legislation similar in purpose may be found in Montana (Revised Code, sec. 2250), Nevada (Revised Laws of Nevada, 1912, sec. 3483), Oregon (Laws of Oregon, sec. 6267) and Hawaii (Acts of Congress, Revised Laws 1905). Unless the case against this statute is a clear one, the courts may not ignore this concurrence of opinion (Lemieux v. Young, 211 U. S. 489 , 493.)

In thus holding that the power exists to exclude aliens from employment on the public works, we do not, however, commit ourselves to the view that the power exists to make arbitrary distinctions between citizens. We do not hold that the government may create a privileged caste among the members of the state. (Smith v. Texas, 233 U. S. 630 , 638.) We do not hold that it may dis

It must also be evident that nothing in this opinion gives countenance to the view that the government may deny to aliens the right to engage in any private trade or calling on

Because the state may thus discriminate in favor of the citizen in regulating employment on its public works, it does not follow, however, that it may exclude aliens from- the enjoyment of those works after they have been completed. Aliens may use the public highways as freely as citizens. Aliens may use the railroads and other agencies of transportation as freely as citizens. The reason is that the light to move about from place to place within the state is incidental to the right to live within the state. There are probably many other public works so intimately related, if not to life, at least to health and comfort, that merely arbitrary or oppressive

• The argument is made that if the statute is not invalid as in conflict with the fourteenth amendment of the constitution, it is invalid as in conflict with treaties between the United States and foreign nations. Typical of these treaties is the one with Italy. It provides: “The citizens.of each of the high contracting parties shall have liberty to travel in the States and Territories of the other, to carry on trade, wholesale and retail, to hire and occupy houses and warehouses, to employ agents of their choice, and generally to do anvthing incident to, or necessary for trade, upon the same terms as the natives of the country, submitting themselves to the laws there established. The citizens of each of the high contracting parties shall receive, in the States and Territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are, or shall be, granted to the natives, on their submitting themselves to the conditions imposed upon the natives. ” This treaty, in my judgment, does not limit the power of the state, as a proprietor, to control the construction of its own works and the distribution of its own moneys.

The argument is also made that discrimination between citizens and aliens may increase the cost of public works by limiting- the supply of labor; and that to do this, in order to better the condition of our laborers, is to

This statute must be obeyed unless it is in conflict with some command of the constitution, either of the state or of the nation. It is not enough that it may seem to us to be impolitic or even oppressive. It is not enough that in its making, great and historic traditions of generosity have been ignored. We do not assume to pass judgment upon the wisdom of the legislature. Our duty is done when we ascertain that it has kept within its power. (Bertholf v. O'Reilly, 74 N. Y. 509 , 515; People v. Gillson, 109 N. Y. 389 , 398; Atkin v. Kansas, supra.) “It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great

The judgment of the Appellate Division should be reversed, and the judgment of conviction affirmed.

Whatever may be my own views as to the wisdom or fairness of the statute before us, I am entirely clear that it is. constitutional and - that the question is settled by the decision both of the United States Supreme Court and of this court.

These decisions establish the proposition that the state in the prosecution of a public work stands in just the same position as an individual; that it may prescribe the conditions on which it will contract for such work; and that it may make the violation of his contract on the part of the contractor a criminal offense. It is so held in Atkin v. Kansas ( 191 U. S. 207 , 223) where the Supreme Court of the United States said that “no employee is entitled, of absolute right and as a part of his liberty, to perform labor for the state; and no contractor for public work can excuse a violation of his agreement with the state by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do.” This language was quoted with approval by this court in People ex rel. Williams Eng. & Contr. Co. v. Metz ( 193 N. Y. 148 ) and the doctrine therein declared thus

In Ellis v. United States ( 206 U. S. 246 , 256), which involved the validity of a Federal labor law, it was held that “the government purely as a contractor, in the absence of special laws, may stand like a private person, but by making a contract it does not give up its power to make a law; ” and in the exercise of this power it may declare a violation of his contract by the contractor to be a dime. In answer to a suggestion that the purpose of the statute was to secure to labor certain advantages in conditions over which Congress has not general control, Hr. Justice Holmes said that the existence of such a motive would not render a law unconstitutional which was otherwise valid and that the power which Congress has over the mode in which contracts with the United States shall be performed could not be limited by a speculation as to motives.

However subsequent legislation or adjudications may have modified the effect" of the decision in People v. Orange County Road Construction Co. ( 175 N. Y. 84 , 90) it still remains true, as was said by Judge Cullen in that case, that “if the state itself prosecutes a work it may dictate every detail of the service required in its performance; prescribe the wages of workmen, their hours of labor, and the particular individuals who may be employed. * * "x" The state in this respect stands the same as its citizens.”

How great the rights of private citizens are in their status as employers is aptly illustrated by Jacobs v. Cohen ( 183 N. Y. 207 ) where this court held that the contract between an employer and a labor union whereby the employer agreed for a certain period to employ only members of the union was not violative of public policy or otherwise forbidden by law. In the opinion we reiterated the assertion made in National Protective Association, etc., v. Cumming ( 170 N. Y. 315 , 341) that every man

It seems to me that the only constitutional prohibition which can be relied upon with any confidence to invalidate the statute forbidding the employment of aliens upon the public works of this state, is the provision of the Fourteenth Amendment to the Federal Constitution which declares that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

If it is a denial of the equal protection of the laws for an employer of labor to refuse to afford a designated class of persons an opportunity to work for him, it must be conceded that this statute was enacted in disregard of the constitutional provision thus invoked.

I can find no reason to suppose, however, that the Fourteenth Amendment was designed to limit or restrict the rights of a state as an employer of labor. Other employers, individual or corporate* possess the undoubted and absolute right to withhold employment' from whomever they see fit. The Constitution could hardly have been intended to deprive the states of equality with private employers in this respect; yet if the Fourteenth Amendment invalidates the statute in question, the great railroad corporation which is erecting its new building in Albany to-day may refuse to allow aliens to work upon it, while the state of New York, in repairing the capítol, must give aliens an equal opportunity with citizens to aid in its reconstruction.

The statute is nothing more, in effect, than a resolve by an employer as to the character of his employees. An individual employer would communicate the resolve to his subordinates by written instructions or by word of mouth. The state, an incorporeal master, speaking through the legislature, communicates the resolve to its agents by enacting a statute. Either the private

If the alien labor law under consideration is violative of the Fourteenth Amendment, the preference given to veterans by the Constitution of the state of New York must likewise be invalid. (Const. of New York, art. V, sec. 9.) Appointments and promotions in the civil service of the state and of all civil divisions thereof, including cities and villages, are thereby required to be made according to merit and fitness to be ascertained as far as practicable by examinations, which so far as practicable shall be competitive; “provided, however, that honorably discharged soldiers and sailors from the army and navy of the. United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made.” Here is a preference in the public service based wholly upon a status acquired half a century ago, and a preference of one class of citizens over all others. There could not be a clearer case of discrimination. I think that the Federal Constitution permits such discrimination; but I should not think so if it be held that the statute in question here is in conflict with the Fourteenth Amendment.

The differences of opinion upon the present appeal are necessarily radical and depend upon the question whether the denial of an opportunity to work for the state is a denial of the equal protection of the laws. For the reasons which I have briefly stated, in addition to those set forth so clearly and cogently in the opinion of my brother Oardozo, I think this question must be answered in the negative. I do not believe that either the Fourteenth

This case in no way involves the right of private citizens to employ aliens in private work. It presents only the question of the right of the state to exclude aliens from employment upon its public works. The distinction is vital and must be kept in mind throughout the discussion of this case.

I concur in the opinion that the statute is constitutional. I agree that, because of the public character of the work to which the statute relates, the discrimination against aliens is not an arbitrary discrimination. I agree also that the law cannot be upheld upon the ground that it is designed to promote efficiency upon the public works of the state. The present case, as I view it, does not involve merely the right of the state to prescribe the manner in which its public money may be distributed. The money expended for public works would necessarily be expended whether citizens or aliens were engaged in constructing them. The money paid by the state for this purpose is not a gratuity, but is paid as compensation for services rendered and the rendering of these services creates a public value at least equal to the money expended. The distribution of public money for this purpose is only an incident of the state’s exercise of its right as proprietor and owner of its public works. This case involves the right of the state as owner or proprietor to exclude aliens from working upon its public works and to accord to its own citizens a preference in being employed upon such public works, over other citizens of the United States. Ho citizen, as an incident of citizenship, has' any right to be employed upon public works. If to be employed upon public works is in any sense a right or privilege under the State Constitution (Art. 1, sec. 1), it is equally so under the provisions of the Fourteenth

Public works, like other public property, are within the police power of the state. The character of the work to which the statute under consideration applies being public, the statute itself is an exercise by the sovereign of its police power. The statute being an exercise of the police power of the state it necessarily follows that the provi

In my opinion the judgment of the Appellate Division reversing the judgment of conviction should be reversed and the judgment of conviction affirmed.

This appeal requires us to determine whether or not section 14 of the Labor Law is a constitutional enactment. The section is:

“ § 14. Preference in employment of persons upon public works.—In the construction of public works by the state or a municipality, or by persons contracting with the state or such municipality, only citizens of the United States shall be employed; and in all cases where laborers are employed on any" such public works, preference shall be given citizens of the state of New York. In each contract for the construction of public works a provision shall be inserted, to the effect that, if the provisions of this section are not complied with, the contract shall be void. All boards, officers, agents or employees of cities of the first class of the state, having the power to enter into contracts which provide for the expenditure of public money on public works, shall file in the office of the commissioner of labor the names and addresses of all contractors holding contracts with said cities of the state. Upon the letting of new contracts the names and addresses of such new contractors shall likewise be filed. Upon the demand of the commissioner of labor a con

tractor shall furnish a list of the names and addresses of all subcontractors in his employ. Each contractor performing work for any city of the first class shall keep a list of his employees, in which it shall be set forth whether they are naturalized or native born citizens of the United States, together with, in case of naturalization, the date of naturalization and the name of the court where such naturalization was granted. Such lists and records shall be open to the inspection of the commissioner of labor. A violation of this section shall constitute a misdemeanor and shall be punishable by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment for not less than thirty nor more than ninety days, or by both such fine and imprisonment.” (Laws of 1909, ch. 36 [Cons. Laws, ch. 31], § 14.)

The defendant, in constructing sewer basins pursuant to a contract between the city of New York and himself, employed persons who were not citizens of the United States, one of whom came from Italy. The judgment of the Court of Special Sessions of the city convicting him of a misdemeanor therein was reversed by the Appellate Division solely for errors of law.

The question before us, necessitating as it does a decision concerning fundamental civic principles, is of unusual gravity. With the wisdom or unwisdom, the justice or injustice of the enactment, or the practical effects of our decision, we have no concern; those matters are within che legislative power and are not subject to review by us. This court has neither the inclination nor the power to encroach upon the legislative department of the government of the state or assume any part of its functions or responsibilities. The measure of our duty is exhausted in ascertaining the legislative intention expressed in the enactment and determining and declaring with cold neutrality that it either does or it does not ignore and transcend the limits which the people of the state, conscious that free government consists largely in rigid

The statute, through the intent expressed by it, if valid, prohibits the state and all the counties, towns, cities and villages thereof and all contractors with the state or any of those municipalities from employing all persons not born or naturalized in and subject to the United States (Const, of U. S. art. XIV, § 1) —all aliens — in the construction of public works, that is, fixed works for public use. (Ellis v. Common Council of Grand Rapids, 123 Mich. 567 ; Ellis v. United States, 206 U. S. 246 .) It, in form, deprives contractors with the state or any municipality of the right to employ aliens and it deprives all aliens of the right of being subjects of employment, of the right to offer their labor for wages, in such construction. Its purpose, avowedly, is to promote the welfare of wage-earning citizens by destroying competition from aliens in the construction of all public work within the state. The briefs and arguments of the counsel are in accord with those conclusions.

The respondént asserts that the enactment is in conflict with and, therefore, void under certain provisions of the State and Federal Constitutions. Of those, we cite the following: “No person shall * * * be deprived of life, liberty or property without due process of law. ” (Const, of State, art. I, §6.) “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” (Const, of the U. S. art. • XIV, § 1.) While the immediate inducement to and purpose in the adoption of this article of the United States Constitution was the pro

The legislative power of the people of the state is plenary except as they have abridged it by the State Constitution or consented to its restriction by the Federal Constitution. That power is vested in the "legislature. The statute under consideration is valid unless it transcends the constitutional restrictions already quoted; if it overpassed them it was and is as inoperative and impotent, as to persons lawfully assailing it, as if non-existent. Whether it did or did not is to be determined upon the general object or purpose sought therein by the legislature and its efficiency to effect it. The purpose of a statute impugned as unconstitutional must be determined from the natural and legal effect of the language employed, and whether it is or is not repugnant to constitutional provisions must be determined from its natural effect when put into operation. (Lochner v. New York, 198 U. S. 45 , 64; Henderson v. Mayor, etc., of N. Y., 92 U. S. 259 , 268.) The statement already made of the intent and the general purpose to be effected by the statute under consideration need not be repeated.

Constitutional law has always deemed and declared the right to sell or purchase labor a part of the individual liberty and property safeguarded by the constitu

The appellants assert, and as the chief and predominant support of their position, that the state has the right to declare, in the form of a statutory enactment, whom it and the municipalities will not employ, and contractors with them shall not employ upon public works and in public undertakings, and is in this respect as free and untrammeled as the individual employer. This claim is unrelated to and seeks no basis or justification-in the police power of the state. It is oblivious of the existence of the police power. It rests exclusively upon the principle that the state is the owner and proprietor, as the guardian and trustee for the people, of the public works, undertakings and institutions, and as such proprietor has the right to control, manage and conduct them under such conditions, in such mode and with such employees and appointees as it will, exercising without limit, as may the individual employer, its judgment, choice or caprice. The authority directly relied upon to uphold the claim is Atkin v. Kansas ( 191 U. S. 207 ).

The Atkin case does not authorize or decide the claim of the appellants. It does not reach the basal element of the section 14. The section destroys absolutely the liberty of aliens to contract to work, their right to tender and sell their labor and services, and the right of the contractors to hire them or buy their labor, in and for constructing any public works. It does not fix the hours of each day through which an alien laborer may work or his compensation; it declares that an alien shall not be permitted to be a laborer and deprives him of the right to exercise the choice and freedom of being willing or unwilling to work upon public works under regulations enacted by the state, and the contractors of the right to employ him. Undoubtedly, no one has an inherent right to work or perform work for the state, which may in the regular and orderly administration and management of its affairs and institutions, in its proprietary capacity, contract as and with whom it chooses, except as restricted by the Constitution, to which it is not superior in any capacity. In the erection of a new capítol, for instance, it could select its architects, its decorators, its contractors and its superintendent and thereby reject the applications of those who were not selected. This, however, differs substantially and inherently from a statutory enactment that in the construction of any public building by or for the state or a municipality only persons residing in the city of Albany shall be engaged or employed. In the absence of the statute every person would be free to offer his labor and ability as he willed, and accept the terms, regulations and conditions fixed by the employer, whether state, municipality or contractor; with the statute every person residing elsewhere than in • Albany would be deprived of that freedom, and to that extent of his liberty

The appellants assert further that the section 14 is supportable as a reasonable exercise of the police power of the state — a power inherent in the state, which the state did not surrender when becoming a member of the United States under the Federal Constitution, and which is exercisable for the preservation or promotion of the public health, safety, morals and general welfare or the prevention of fraud or immorality. While the protec

The further claim of the appellants that the defendant, by undertaking the work, waived the guaranty of the Constitution is not tenable. The transaction between the city and the defendant was a matter of contract. The

The respondent urges that the section is repugnant to the Federal Constitution as denying to aliens the equal protection of the laws. The primary question in discussing this assertion is, what is the purpose of the statute. The answer manifestly is, as we have already stated, the promotion of the welfare and prosperity of certain wage earners by forbidding the employment in the construction of public works of other wage earners.

The second question is, is the purpose constitutionally lawful-. We hold it is not, for the reasons stated, and being thus invalid, no arbitrary classification or discrimination between the laborers of the state effecting the unequal protection of the laws can make it more invalid. If it were valid because the state has the power, arbitrarily and in accord with its unfettered and unbased will, to .prohibit the employment of a class in the construction of its public works, by the same token, it has the power, with like paramountcy, to designate the prohibited class, which could not with reason allege a lack of equal protection of the laws. If it were declared valid because within the police power, it could not be declared invalid on the ground that the equal protection of the law to those whom the exercise of that power had lawfully classified and barred had been invaded. Where the purpose of a statute is lawful, the question might arise whether a classification of persons or things, adopted as a part of the prescribed means for effecting it is legal and justifiable. (Billings v. Illinois, 188 U. S. 97 , 102; Patsone v. Pennsylvania, 232 U. S. 138 .)

A review of the relevant decisions will disclose that the courts frequently assume that the “ due process of law”

In view of what has been written, it is not neces

My conclusion is that the section 14 unconstitutionally attempted to deprive the defendant as the contractor and employer of labor, and the alien class as the vendors of their labor, of liberty and property, and is void.

The judgment should be affirmed.

Willard Bartlett, Ch. J., Chase, Hogan, Miller and Seabury, JJ., concur with Cardozo, J. (Willard Bartlett, Oh. J., and Seabury, J., in separate opinions); Collin, J., reads a dissenting opinion for affirmance.

Judgment of Appellate Division reversed and judgment of conviction affirmed.