People v. . Crane , 214 N.Y. 154 ( 1915 )

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 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." (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 the 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 restrictions upon itself imposed and acquiesced in by the governed, have placed by the Constitution upon themselves and their representatives. State and people are inseparable ideas, for the state is the form in which the people have become organized.

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. CommonCouncil of Grand Rapids, 123 Mich. 567; Ellis v. UnitedStates, 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 respondent 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 protection of the liberty and property of colored persons, it is effective as a guaranty, additional to those of the State Constitutions, against encroachment by the legislatures of the states upon the fundamental and constitutional rights of any person. (Holden v.Hardy, 169 U.S. 366, 382.) It is established, beyond useful questioning or discussion, that aliens equally with citizens are under and protected by the constitutional guaranties invoked by the defendant here. (Yick Wo v. Hopkins, 118 U.S. 356;State v. Montgomery, 94 Me. 192; Commonwealth v. Hana,195 Mass. 262.) Within their operation citizen and alien are legal equals and alienage is not and cannot be a basis or justification of differentiation or discrimination between them.

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 constitutional provisions I have quoted. Refraining from referring to the many judicial expressions of the principle, I quote the most recent of those of the United States Supreme Court: "The principle is fundamental and vital. Included in the right of personal liberty and the right of private property — partaking of the nature of each — is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money." (Coppage v. Kansas, 236 U.S. 1, 14.) We have said: "Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation; all laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except as such laws may be passed in the exercise by the legislature of the police power, which will be noticed later), are infringements upon his fundamental rights of liberty, which are under constitutional protection." (Matterof Jacobs, 98 N.Y. 98, 106.) The principle has been frequently applied. (Bertholf v. O'Reilly, 74 N.Y. 509, 515; People v.Marx, 99 N.Y. 377; People v. Gillson, 109 N.Y. 389;People v. Hawkins, 157 N.Y. 1; People ex rel. Tyroler v.Warden of City Prison, 157 N.Y. 116; People v. Williams, 189 N.Y. 131; Lochner v. New York, 198 U.S. 45; Adair v.U.S., 208 U.S. 161.) Any person who is banned by a statute from employment in the construction of the public works within the state is deprived of liberty and property; any person who is likewise banned from employing any other person in such construction is likewise affected. To constitute the deprivation, the inhibition of the statute need not include employment upon the construction of all works within the state. It need not be universal. The deprivation exists when the right to offer one's labor or services or the right to employ the labor or services of another upon a specified work or at a specified place or time is destroyed. (People v. Williams, 189 N.Y. 131; People v.Hawkins, 157 N.Y. 1; Matter of Parrott, 6 Sawyer [U.S.], 349.) The section 14 effects such deprivation and is unconstitutional and invalid unless there are conditions or legal principles justifying it. The appellants assert that there are.

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).

In the Atkin case was involved the validity under the Constitution of the United States of the statute known as the eight-hour law of Kansas. The law (speaking generally but with sufficient exactness) constituted eight hours a day's work for persons employed by or on behalf of the state or a municipality, the current rate of per diem wages in the locality where the work was performed the minimum wage to be paid and the requirement or allowance of more than eight hours' work per calendar day an offense. It provided, further, that persons employed by contractors with the state or a municipality or their subcontractors should be deemed employees of the state or the municipality. Atkin, in constructing a pavement in Kansas City, under a contract with it, permitted a person employed by him to work ten hours each calendar day, and by a court of Kansas was adjudged guilty of a violation of the statute. The Supreme Court of Kansas and the Supreme Court of the United States affirmed the judgment. The decision of the United States Supreme Court is expressly limited to the facts of that case. It was grounded in the two principles it enunciated: (a) The construction of the pavement was done by the state through a governmental agency and was of a public character; and (b) being of a public character, the statute, in regulating, as to those undertaking it, the mode in which and the conditions upon which it should be executed did not infringe the personal liberty of Atkin or his employees, and expressed a public policy with which the courts had no concern. The court said: "We rest our decision upon the broad ground that the work being of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not, by its regulations, infringe the personal rights of others; and that has not been done." (p. 224.) Chief Justice FULLER and Justices BREWER and PECKHAM dissented from this decision. (See, also United States v.Martin, 94 U.S. 400.)

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 capitol, 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 and property. The reasonable range and effect of a principle under discussion aids in determining its validity. The state is the proprietor of its educational, penal and charitable institutions equally with its public works. The claim of the appellants, if sustained, would establish that it may declare by statutes (apart from the constitutional civil service provisions) that in the administration of those institutions, and of its public works and affairs, only the registered electors of a designated party, or only unmarried persons, or only white persons, or Protestants or Catholics, or persons born in this state, shall be employed or appointed, or that certain designated citizens shall not be employed, or that goods or products made or grown by corporations of this state shall not be purchased. The illustrations might be multiplied. The state may not, by virtue of its proprietorship, destroy by a statute the right of any person to tender for sale and sell his labor or services, upon such terms as he deems proper, in the construction of public works, or in the administration of public institutions, or the right of a person contracting to construct public works, to buy the labor or employ the person. The claim of the appellants that the state may with arbitrariness, as an untrammeled proprietor, forbid by statute the employment in the construction of public works of designated persons, or a designated class of persons, is ill-founded, and does not justify the infringement, worked by the section 14, of the personal rights of liberty and property guaranteed to the defendant and the alien class by the State and Federal Constitutions.

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 protection of the liberty and property of the individual is a main purpose of a government and the Constitution, no person or property is immune from the power of the legislature to impose restraints and burdens upon either as required by the public safety or welfare. The cases are numerous and familiar in which the courts have held that the legislature of the states may, by virtue of the police power, limit the enjoyment or control of property and the right of making contracts. Whenever, however, it is sought to justify or support a statute by invoking the police power, it must appear that it reasonably and fairly tends, in a perceptible and clear degree, towards one or more of the objects of that power; and while it is within the general scope of legislative power to determine whether or not there is, in a given condition, necessity for its exercise, it is within the judicial power and duty to determine whether or not the legislative determination bears any reasonable relation to the public health, safety or morals. Unless such relation exists, the determination must be deemed by the courts arbitrary and unjustified by the police power. (Health Department of N.Y. v. Rector, etc., 145 N.Y. 32;Fisher Co. v. Woods, 187 N.Y. 90; Lochner v. NewYork, 198 U.S. 45; Chicago, B. Quincy R.R. Co. v. McGuire,219 U.S. 549; Parks v. State, 159 Ind. 211; Holden v.Hardy, 169 U.S. 366; Dobbins v. Los Angeles, 195 U.S. 223;McLean v. Arkansas, 211 U.S. 539; Coppage v. Kansas,236 U.S. 1.) It is argued that the section is within the police power because its natural effect, by interdicting competition from the alien class, increases to citizens the likelihood of employment and increased wages. The argument is both ill-founded and pernicious. The constitutional provisions in question were wisely intended to and do safeguard the liberty and the property of the aliens lawfully residing in the United States. Under and to the extent of these provisions, aliens are on an equal footing with citizens. It would be unreasonable to assert that the public welfare would be promoted by assuring and compelling unemployment to a class or to classes or to parts of classes of workers in order that those not banished from the right of being employed might have fuller employment and larger compensation. It is argued, too, that there is a danger or a danger to be apprehended in allowing aliens to work upon the public works, because they, through loyalty to the governments to which they owe allegiance, may destroy or diminish the efficiency or safety of those works. The argument is insubstantial, and common knowledge and experience refute it. Persons of unbalanced, evil or uncivilized minds do not form a definable societal class. Each class is infested with them and the law must deal with them as their acts make necessary. In the construction of by far the greater part of the public works opportunities for the commission of the apprehended acts would not exist, and in the alien, as in the other classes of the state, the number of those who would commit them is an undiscoverable and insignificant minority. Obviously, there are civil positions and offices, and public works of a military, naval or analogous nature, or periods of conflict in regard to which aliens may, under the police power, be banned or restrained. Section 14 has not a relation in substance or intent to any of those positions or conditions, and the state or a municipality may, in the absence of the statute, deny at any time, and, at least, when conditions justify recourse to the police power, may by contract bind those contracting with them to deny employment to members of a dangerous group or class. I do not perceive in the arguments of counsel, or conceive apart from them, any possible relation of the section to the police power.

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 city through specifications and proposals requested bids for their fulfillment and accepted that made by the defendant. If the statute was valid, it incumbered, through legislative power and not through a meeting of the minds of the parties, the contract made; if invalid, it was, as to the defendant, a nullity.

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" clause is the equivalent of "the equal protection of the laws" clause. In Holden v. Hardy (169 U.S. 366, 382) the court said: "As the three questions of abridging their immunities, depriving them of their property, and denying them the protection of the laws, are so connected that the authorities upon each are, to a greater or less extent, pertinent to the others, they may properly be considered together." Professor Willoughby writes: "It would seem, however, that the broad interpretation which the prohibition as to ``due process of law' has received is sufficient to cover very many of the acts which, if committed by the states, might be attacked as denying equal protection. Thus it has been repeatedly declared that enactments of a legislature directed against particular individuals or corporations, or classes of such, without any reasonable ground for selecting them out of the general mass of individuals or corporations, amounts to a denial of due process of law so far as their life, liberty or property is affected." (2 Willoughby on the Constitution, page 874.) Recent decisions verify this statement. (Coppage v. Kansas,supra; Adair v. United States, 208 U.S. 161; Lochner v. NewYork, 198 U.S. 45; Riley v. Massachusetts, 232 U.S. 671;People v. Marcus, 185 N.Y. 257; Fisher Co. v. Woods,187 N.Y. 90; People v. Williams, 189 N.Y. 131; City of Chicago v. Hulbert, 205 Ill. 346.) If the "equal protection of the laws" clause be applied, however, it must be held that the attempted classification of the aliens as a prohibited class is unreasonable and arbitrary for the reasons which excluded it from the police power, and for such reasons is unconstitutional and void. (People v. Orange County Road Const. Co., 175 N.Y. 84;Cotting v. Kansas City Stock Yards Co., 183 U.S. 79;Connolly v. Union Sewer Pipe Co., 184 U.S. 540; Southern Ry.Co. v. Greene, 216 U.S. 400; Lindsley v. Natural CarbonicGas Co., 220 U.S. 61; State ex rel. Richards v. Hammer,42 N.J.L. 435, 440.)

In view of what has been written, it is not necessary to determine whether or not the section is repugnant to the existing treaty between the United States and Italy.

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, Ch. 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.