People Ex Rel. Treat v. . Coler , 166 N.Y. 144 ( 1901 )

The learned court below awarded a peremptory writ of mandamus against the comptroller of the city of New York commanding him to deliver to the relator a warrant for the payment of the sum of $3,201.63, the amount earned under a contract for constructing a sewer. There was some difference of opinion in the court below upon the point whether the application should not be denied, as a matter of discretion, and the relator compelled to resort to an action to enforce his claim. The court, however, exercised its discretion in favor of the relator. There was power in the court to grant the writ, and, hence, the question with respect to the proper exercise of that discretion is not here.

In August, 1899, the relator entered into a written contract with the city, whereby he undertook to construct a sewer according to dimensions and specifications prescribed by the contract. It was provided that the chief engineer of sewers should, in all cases, determine the amount of the several kinds of work to be paid for under the contract and all questions in relation to the work and the construction thereof, and that his estimate and decision should be final and conclusive upon the contractor; that upon the completion of the work and the certificate thereof by the engineer and inspector the city would pay the whole amount due under the contract, except such sums as might be lawfully retained for any of the purposes specified therein. The relator proceeded to perform his contract and completed the work and a certificate to that effect was made by the engineer and inspector in charge, and the work was actually accepted by the city and approved by its officers more than thirty days prior to the commencement of this proceeding. From the certificate of these city officers it appeared that there had been earned and was then due for work done and materials furnished, after deducting the amounts authorized to be retained for repairs, the sum of $3,201.63. This certificate was filed in the office of the comptroller; but he refused to draw a warrant on the chamberlain for the sum thus due, or to deliver the same to the relator, or to make payment under the contract. These facts are set forth by the relator in his moving papers, in detail. The answering affidavit makes no denial of the facts alleged. The ground upon which the comptroller bases his refusal is that the relator did not comply with chapter 413 of the Laws of 1895, which requires that all stone of any description, except paving blocks and crushed stone, used in municipal work of this character, and which is to be worked, dressed or carved for such use, shall be so worked, dressed or carved within the boundaries of this state. It is stated in the affidavit that, in the month of April last, the comptroller was notified, in writing, that the relator in the performance of the contract had procured to be cut, carved and finished in the state of New Jersey a certain granite sewer basin, which was used by the relator in the completion of the contract in question.

The statute in question (Laws of 1895, ch. 413) is now section fourteen of the Labor Law (Laws of 1897, ch. 415), and provides that "All stone of any description, except paving blocks and crushed stone, used in state or municipal works within this state, or which is to be worked, dressed or carved for such use, shall be so worked, dressed or carved within the boundaries of the state. A clause shall be inserted in all specifications or contracts hereafter awarded by state, county or municipal authorities, authorizing or requiring the use of worked, dressed or carved stone therein except paving blocks and crushed stone, to the effect that all such stone shall be worked, dressed or carved for such use as required by this act. If any contractor within this state, or within a municipal corporation of the state, shall violate any provision of this act, the state or such municipal corporation shall revoke said contract, and shall be discharged from any liability to any such contractor by reason of said contract." In pursuance of this enactment the contract between the relator and the city contained the following provision: "All stone of any description, except paving blocks and crushed stone, used in state or municipal work within this state, or which is to be worked, dressed or carved for said work, shall be so worked, dressed or carved within the boundaries of the state."

It is admitted in the record that the relator actually performed the work specified in the contract, according to its terms and specifications, and that the sum claimed by him for payment of which the comptroller was directed by the mandamus to draw his warrant has been earned and is due. The only obstacle to payment found to be in the relator's way is the fact that he purchased a granite sewer basin in the state of New Jersey cut, carved and dressed there instead of in the state of New York. It is urged that this fact furnishes a complete defense to the city against the relator's claim for payment, although the work has been accepted and the city and the property owners on the street are enjoying the benefit of it.

It is not necessary to examine the questions involved in the defendant's answer to the application for the writ, since they have just been examined and passed upon in another case. (Peopleex rel. Rodgers v. Coler, 166 N.Y. 1.) We have attempted to show in that case that the facts contained in the defendant's answering affidavit constitute no defense whatever to the relator's claim, since the legislature had no power to enact the statute there invoked. We may, however, supplement the decision in that case with a recent decision quite analogous in principle in which the same or similar questions were discussed. (Allgeyer v. Louisiana, 165 U.S. 578.) We hold in this case without further discussion that the enactment requiring all stone for use in municipal work to be cut, carved or dressed within this state is subject to the same objections.

This case, however, 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 contract, 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. 93.)

The decisions in the Supreme Court of the United States, referred to in these cases, are conclusive upon the question. The provision of the contract whereby the contractor agreed to do what the statute required is only a part of the legislative scheme to compel municipalities and contractors to use only such stone as was cut, carved or dressed within this state in the construction of public works, and, consequently, is subject to the same objection as the statute itself. The contractor's agreement rests upon the statute and must fall with it. The plain purpose and effect of this provision of the contract is to restrict intercourse between the states and compel the city or the contractor to bring stone in the rough here to be dressed, cut or carved by workmen here. The statute and the contract made pursuant to its command were intended to accomplish the same purpose, and both must fall together. (Addyston Pipe Steel Co. v. United States, 175 U.S. 211.)

The order should be affirmed, with costs.