People ex rel. Warren v. Beck

When this case was before the general term of the supreme court on an appeal from the judgment of conviction, that court reached the conclusion that the statute in question was a valid exercise of legislative power. People v. Warren, 77 Hun, 120 ; 59 St. Rep. 857 . I concur in that opinion, and would not now deem it necessary to add anything further to the discussion did not my associate take a radically different view of the question involved. I do not understand that the views expressed by

It is said that defendant is an independent contractor, and consequently the rules we have invoked have no application to the case. If this were conceded, it might not be possible to answer the claim. But the assertion itself, as I view the facts, if far' from being true. In the sense that the defendant is doing work for the city of Buffalo under a contract to furnish all material and labor in making a public improvement for a given sum, it is the fact; but that it is relieved from the obligations, imposed by the statute upon the city of Buffalo, and assumed by it, is not true as matter of law. Had the city itself performed this work, it would have been within the rule we have announced, and subject to the obligations imposed by the law. How can the defendant plead ex

The reasoning of this case, in principle, is decisive of the claim that defendant is relieved by reason of his independent character. I see no reason for departing from the result reached by the supreme court.

The order appealed from should therefore be affirmed.

(dissenting).—The Barber Asphalt Paving Company is a West Virginia corporation, engaged in the business of paving streets in the city of Buffalo, under contracts with it, and the relator is the superintendent of the paving company. In the fall of 1893 the paving company was paving Delaware avenue, one of the public streets of the city, under a contract with the city, which, in compliance with the charter, contained a provision that the company should employ only citizens of the United States, or those who had legally applied for citizenship, and were permanent residents of the city of Buffalo, as laborers in paving said street; and, further, that it (the company) should not accept more than eight hours as a day’s work to be performed by its laborers within nine consecutive' hours; and, further still, that it would not employ any man or set of men for more than eight hours in twenty-four consecutive hours, except in case of necessity. The relator hired and discharged the laborers of the company. During the progress of the work he hired one Brown to work, and Brown did work for the company as a laborer for more than eight hours in nine consecutive hours, and for more than eight hours in twenty-four consecutive hours, to wit, for ten hours in twenty-four consecutive hours, and not in case of necessity. The relator and

We think it is common knowledge that the great mass of our citizens who represent the bone and sinew, the intelligence and patriotism, of the nation, labor more than eight hours a day in the “ordinary callings of life;” that the great majority cherish the privilege so to labor as above all price, and may rightfully regard any abridgment of it as an infringement of their right. If the business of laying pavements in our streets can be said to be nocuous, or that, if it' is not regulated and controlled by the legislature, the lives, health or welfare of those engaged in it, or the welfare in general of society, will be endangered thereby, it will be exceedingly difficult to name any calling of life that should not be thus regulated and controlled. With equal propriety such legislation may be extended to all classes of workers, and for all practical purposes that includes our entire population. If the case at bar is subject to the police power of the state, there would seem to be no valid reason why toilers in all fields of productive labor, manual and intellectual, without discrimination, should not be subject to and controlled by the same power. Honest toil in an “ordinary calling of life,” like that of laying pavement in the open air, will never endanger the life, health, or morals of the community. On the contrary, they will be promoted by it. A desire to profit by laboring to the extent of one’s ability induces the cultivation of thrift, prudence, sobriety, economy, foresight, intelligence, and morality, and those virtues distinguish the great mass of workers in our country. Neither disease, ignorance, crime, nor the necessity for bread at the hands of the state among those who labor comes as a rule from that liberty by virtue of which every member of the state is permitted to exercise all his faculities to their full extent in competition with his fellows in all fields of honest labor without let or hindrance. Legislation such as we are now considering tends to create a class of statutory laboréis, so to speak, in which the standard of ability to earn money shall be uniform, and measured by that of the weakest, most ignorant, debased, and inefficient one in the class. It is said that the men who are the greatest users of capital, the men in whom superior intellect and will are united, come from labor’s own ranks, and that, as a consequence, capital is forever changing hands. The

In considering this case upon its merits I am not unmindful of the fact that our supreme co.urt has held the legislation in question to be constitutional, but the conviction is so strong in my mind that the conclusion reached by that court is at variance with controlling decisions of other courts whose opinions, like its own, are universally respected, that I have ventured, at the risk of being charged with rashness, to record my convictions in the premises. Nor am I unmindful of the fact that law is founded largely upon precedents, and that ordinarily, when a rule has been once deli berately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; but I am clearly of the opinion that whenever the court is satisfied that its own or the decision of a co-ordinate court is erroneous, it should not hesitate to correct the decision which it deems erroneous, and especially, as in this case, when no right of person or property can be prejudiced thereby. In its opinion in this case the supreme court asserts with great force and clearness in a general way the right of the citizen to labor without interference on the part of the state, but says that the city of Buffalo has debarred itself, and all independent contractors with it, of the right to accept more than eight hours as a day’s work, by virtue of the provisions in its charter, and that a violation of those provisions by such independent contractor makes him a criminal

The sense of the statement is that, because a laborer is not compelled to work in the field referred to at all, unless he voluntarily chooses to do so, his liberty of choice is not interfered with, nor his right to labor infringed. The conclusion reached does not seem to me to logically follow the premises upon which it is based. By the charter the contractor is prohibited, on pain of fine and imprisonment, from accepting more than eight hours as a day’s work ; and the laborer is prohibited, under a like penalty, from working-more than eight hours a daju In exercising their liberty of choice, Brown worked, and the relator accepted, more than eight hours a day as a day’s work; and it is in consequence of having exercised their liberty of choice that the statute has been violated, and the relator is imprisoned. How, then, can it be said that the liberty of choice has not been interfered with? To say that Brown was at liberty to find work in other fields does not, as it seems to me, meet the case. His right is to labor in fields of his choice, so long as his employer chooses to employ him there, and he does not interfere with -the equal right of others. The statement of the case by the supreme court itself makes it plain to my mind that the liberty of choice as to the relator and Brown is interfered with by these provisions in the charter. The only authority relied upon by the supreme court as a precedent for its decision is chapter 352 of the Laws of the United States passed in 1892, and the case of U. S. v. Ollinger, 55 Fed. 959 . It says the provisions of that statute are precisely similar to the provisions of the charter which we are considering. Ollinger took from the government a contract to construct two stone barges, and in building the barges he permitted and required his laborers and mechanics engaged in building them to work more than eight hours a day. An information for violation of the statute was laid against him, and the court held that he was not subject to the provisions of the statute, for the reason that he was an independent contractor with the government, and that the statute was intended to apply only to persons owing a duty to the government in the execution of the work under the contract. In the case at bar, the relator, or his principal, the Barber-Asphalt Paving Company, was an independent contractor, owing-no duty to the city of Buffalo except to. perform its contract according to its terms, and in its own way, and free from dictation or control by the city or any of its officials. The rights of the paving company, notwithstanding it was a foreign corporation, are the same as those of a resident citizen. Santa Clara Co.