People v. Raport

Defendant upon conviction was sentenced to pay a fine of twenty dollars, which fine was paid. The defendant appeals from such conviction, claiming, first, that certain articles maim-

Section 104 of the Labor Law ('as amd. by Laws of 1913, chap. 260), for the violation of which the defendant has been convicted, provides as follows:

“ § 104. Manufacturing of certain articles in tenements prohibited. FTo article of food, no dolls or dolls’ clothing and no article of children’s or infants’ wearing apparel shall be -manufactured, altered, repaired or finished, in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person, in a tenement house, in any portion of an apartment, any part of which is used for living purposes.”

The penalty imposed upon the defendant for the violation of said section is provided by section 1275 of the Penal Law (as amd. by Laws of 1913, chap. 349), which provides that any person violating a provision of the Labor Law is guilty of a misdemeanor and upon conviction is punishable for the first offense by a fine of not less than twenty nor more than fifty dollars. Upon ■ defendant’s conviction the minimum sentence provided by said law was imposed.

The evidence shows that the defendant had a factory at 2292 Arthur avenue, borough of The Bronx, ISTew York City, and that said defendant employed a woman to do the stitching on twenty-four dozen babies’ bibs; that on September 5, 1919, the said woman was doing the work in question in her apartment in a twenty-family tenement house at 2540 Oambrelling avenue, borough of The Bronx. 3STo evidence was introduced on the part of the defendant, and the facts above stated appear undisputed and uncontradicted in the evidence.

The law is, of course, enacted as a health measure, for the protection of the health of infants, and the very purposes of the statute have been violated by the acts of the defendant in the case at bar. There can be no question but that the bibs which the defendant was manufacturing were articles of wearing apparel. The cases are many holding that similar articles are wearing apparel, and that wearing apparel is not confined to clothing, hats and shoes, but that any article intended and adapted to be worn on the person and necessary and proper for the protection of the person or for the person’s personal comfort comes within the definition of wearing apparel. There can be no question but that the bibs manufactured by the defendant were to be worn as a part of the apparel of infants. A thin lace collar to be worn on a woman’s neck has been held by the courts to be wearing apparel, although worn merely for ornamentation. (Matter of Evans & Co., 158 Fed. Rep. 153 ; Arnold v. United States, 147 U. S. 494 ; Matter of Steele, 22 Fed. Cas. 1202.)

The appellant devotes a large part of his brief in an attempt to argue that the bibs manufactured by the defendant wore not wearing apparel. ■ It seems to me that the proposition is too plain to require any extended discussion. The articles themselves, as before stated, are worn by infants and a contract made for their manufacture in tenement houses and in unclean surroundings comes directly within the intent and meaning of the statute.

As to the constitutional question upon which the defendant relies, that question was not raised upon the trial, and the defendant should not be permitted to assert the same upon this appeal for the first time. (People v. Ostrander, 144 App.

However, it seems to me that section 104 of the Labor Law was entirely constitutional and a valid exercise of the police power of the Legislature. It was enacted purely as a health measure in order to protect the health of children, a matter of the utmost importance. The statute reads that “ No article of food, no dolls or dolls’ clothing and no article of children’s or infants’ wearing apparel shall be manufactured, altered, repaired or finished, -in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person in a tenement house, in any portion of an apartment, any part of which is used for living purposes.”

The appellant raises the point that the statute is discriminatory in that it prohibits the manufacture in tenement houses of. the articles of wearing apparel for infants only in cases where such manufactúre is for a factory, and that under the statute an individual not a factory would have the right to engage in the manufacture of such articles in the prohibited places. I do not think the statute is susceptible of the interpretation which the defendant attempts to put upon it. By section 2 of the Labor Law (as amd. by Laws of 1917, chap. 694), a “factory” is defined as including “any mill, workshop, or other manufacturing establishment and all buildings, . sheds, structures or other places used for or in connection therewith, where one or more persons are employed at manufacturing, including making, altering, repairing, finishing, * * * any article or thing, in whole or in part, except dry dock plants engaged in making repairs to ships,” etc. Further, that

J think that a statxxte of this sort shoxxld be most liberally construed to carry oxxt the evident purpose of the Legislature, and that it is oxxr dxxty if possible in the interest of jxxstice and of humanity to affirm the conviction of the defendant.

It is also the claim of the appellant that section 104 of the Labor Law shoxxld be read in connection with section 100 (as amd. by Laws of 1013, chap. 260), which provides that no tenement hoxxse nor any part thereof shall be used for manufacturing, altering, repairing or finishing any articles except for the sole and exclxxsive xxse of the person so.xxsing any part of such tenement house or the members of his household,

I do not think there is anything in appellant’s point that the statute (Labor Law, § 104) deprives the defendant, appellant, of liberty or property without due process of law. (U. S. Const., 14th Amendt., § 1. See, also, State Const., art. 1, § 6.) As before stated, the statute was a legitimate exercise of the legislative power for the purpose of protecting the health of infants. (People ex rel. Nechamcus v. Warden, etc., 144 N. Y. 529 .) “ When the sole object and general tendency of legislation is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property.” (Matter of Viemeister, 179 N. Y. 235 , 238; Health Department v. Rector, etc., 145 id. 32.)

The argument of the appellant that the statute discriminates against citizens of Hew York in favor of those of foreign States is without force. (Conner v. Elliott, 18 How. [U. S.] 591; Paul v. Virginia, 8 Wall. 168 ; Slaughter House Cases, 16 id. 36.)

It seems tó me that section 104 of the Labor Law is a valid exercise of the police power by the Legislature. The bibs in question were wearing apparel within the meaning of the statute. The defendant should not be permitted to escape or the statute to be circumvented through technicalities in the nature of those raised by the appellant.

The "judgment of conviction should be affirmed.

I concur with Mr. Justice Laughlin that the defendant can raise the question of the constitutionality of the statute in this court. A criminal conviction of an offense arising under an unconstitution al statute would he contrary to law, and this court is empowered to reverse such a conviction. I concur, however, with Mr. Justice Merrell that the statute is constitutional, and that a department store or person conducting a business establishment, who has had manufactured any of the articles specified for the purpose of offering them for sale to the public is within the inhibition of the section and, therefore, vote to affirm.

The appellant has been convicted under section 1275 of the Penal Law (as amd. by Laws of 1913, chap. 349) for violating the provisions of section 104 of the Labor Law (as amd. by Laws of 1913, chap. 260). He was the proprietor of the Belmont Embroidery Works, 2292 Arthur avenue, borough of The Bronx, which concededly was a factory within the contemplation of said section 104 of the Labor Law, and as such proprietor he contracted with one Theresa Arena to finish twenty-four dozen babies’ bibs, at her apartment in a tenement house, at Ho. 2540 Cambrelling avenue, in the borough of The Bronx, and they were manufactured by her for the Belmont Embroidery Works pursuant to said contract, in her apartment which was used for living purposes. It is quite clear, I think, that these bibs constituted wearing apparel for children or infants within the provisions of said section 104 of the Labor Law. The facts plainly bring the case within the prohibition of said sections, and I have no doubt but that it was competent for the Legislature, under the police power of the State, and

By the use of “ factory ” in said section 104 the Legislature necessarily meant a factory as so defined by section 2 of the same enactment. It is manifest that the danger to the public health which the Legislature attempted to prevent arises from children or infants wearing the garments, and that.danger is precisely the same regardless of who has the wearing apparel thus manufactured in the tenement, or is the agency through which the wearing apparel is sold to the public. The statute,

Por these reasons I vote for reversal and for the annulment of the conviction.

Judgment affirmed.