Ryan v. . City of New York , 177 N.Y. 271 ( 1904 )

There are two questions presented by this review. The first is, Has the legislature power to provide that its employees and those of the several municipalities shall receive "not less than the prevailing rate" of wages in the locality? In other words, has the legislature — which possesses all the power of the sovereign not expressly withheld by the Constitution — power to provide that work done for it or its several subdivisions shall be paid for at such a rate as individuals and corporations in the same locality pay?

That question was before this court some years ago in so far as it affects the right of the legislature to fix the rate of wages of laborers upon the works of the state. (Clark v. State ofNew York, 142 N.Y. 101.) In 1889 the legislature passed an act (L. 1889, ch. 380) providing that the rate of wages upon the public works of the state should be $2 a day. That was more than the then prevailing rate, and there were those who questioned the power of the state to interfere with its agents in fixing the wages of men working under them. They thought the superintendent of public works had the sole power of fixing wages of employees in that department, and, therefore, could defy the direction of the legislature as to the amount of compensation to be paid, although he could disburse such moneys only as were appropriated by the legislature. And they entreated the attorney-general to commence an action to have the court declare the impotency of the legislature to interfere on the important subject of compensation to laborers. But when the case reached this court in 1894 the attorney-general was unable to point to the provision of the Constitution which divested the representatives of the People for all matters of legislation of this power, and vested it in the several inferior officials having charge of certain administrative duties conferred upon them in the majority of instances by acts of the same legislature. The court — unaffected, as was its duty, by the argument that the statute was unwise and mindful that its duty was discharged fully and could only be discharged by declaring whether the legislature had the power to enact the statute complained of — unanimously held that the power belonged to it. Judge O'BRIEN, writing for the unanimous court, says (142 N.Y. 101, 105): "There is no express or implied restriction to be found in the Constitution upon the power of the legislature to fix and declare the rate of compensation to be paid for labor or services performed upon the public works of the state."

The principle of that decision controls this one. There the legislature undertakes to fix arbitrarily the sum to be paid to every employee of the state. Here the legislature undertakes to provide for the payment of not less than the prevailing rate of wages, not only to the direct employees of the state, but also to its indirect employees working in its several subdivisions — the cities, counties, towns and villages. In the administration of the affairs of those subdivisions, as well as in those of the state at large, the legislature is unrestrained unless by express provisions of the Constitution. As expressed in Rodgers' Case (166 N.Y. 1, 29): "The authority of the state is supreme in every part of it and in all of the public undertakings the state is the proprietor. For convenience of local administration the state has been divided into municipalities, in each of which there may be found local officers exercising a certain measure of authority, but in that which they do they are but the agents of the state, without power to do a single act beyond the boundary set by the state acting through its legislature." Thus all of these agencies and employees in the several municipalities are doing the work of the state, which is the sovereign and master.

Nevertheless, we find that the argument is again made, as in 1894 in Clark's case, that the legislature is without power to interfere with the agencies it has created for the government of the municipalities. And this is said in the face of the decision in Clark's case, and notwithstanding the fact that the legislature has the power at any time to absolutely change the form of government of a municipality, to blot out of existence any municipal charter, or to consolidate several municipalities under a single charter, as it did in the creation of Greater New York. And this argument is made in spite of the many well-known illustrations of the power of the legislature to control the affairs of municipalities. The scope of that power is illustrated by the construction of the new aqueduct by a board created by the legislature, the expense being charged upon the city of New York, although not a single officer of the city had a voice in controlling the expenditure of the millions that its construction involved; and by the act compelling the elevation of the Harlem railroad tracks in the city of New York, and the imposition of one-half of the expense, amounting to several millions, upon the city of New York, the work all being done through an agency created by the state.

Not only does the legislature fix the salaries of the principal municipal officers throughout the state, but in the city of New York, where this case arises, it fixes the rate of compensation for many laborers. The street cleaning department will serve as an illustration. The charter provides for the payment of definite sums in some cases, and for a maximum sum in others, for a force numbering over 5,000 employees in that department, and including 3,100 sweepers and 1,600 drivers, hostlers and stable foremen. The charter in this respect has the support of Clark's Case (supra). Now there are a few mechanics connected with the department whose compensation is not fixed by the charter, and who, therefore, come under the prevailing rate provision of the Labor Law. Their compensation could be fixed of course at a definite sum as that of the other employees is, but instead it is provided in effect that they shall be paid at a rate not less than that paid by others for similar services in that locality. Certainly no one can argue that the legislature can provide that the street sweeper shall be paid — for example — $2 a day, but cannot provide that he shall be paid the prevailing rate of wages when that happens to be $2. But if one can be found who will attempt to make such an argument surely it can be safely said that he cannot find a constitutional provision upon which to rest it.

Since the foregoing was written the opinion of the United States Supreme Court in Atkin v. State of Kansas (191 U.S. 207) has been brought to our attention. It is in point and decides the question in accordance with the views we have already expressed. A Kansas statute provides that "Eight hours shall constitute a day's work for all laborers, workmen, mechanics or other persons now employed, or who may hereafter be employed by or on behalf of the state of Kansas, or by or on behalf of anycounty, city, township or other municipality of said state. * * * Not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics and other persons employed by or on behalf of the state of Kansas, or any county, city, township or other municipality of said state. * * * All contracts hereafter made by or on behalf of the state of Kansas, or by or on behalf of any county, city, township or other municipality of said state, with any corporation, person or persons, for the performance of any work or the furnishing of any material manufactured within the state of Kansas, shall be deemed and considered as made upon the basis of eight hours constituting a day's work." A violation of the statute is a misdemeanor. Atkin made a contract with a municipality — Kansas City — to pave a street. He was convicted under the statute, and the conviction affirmed by the Kansas Supreme Court. It was argued before the United States Supreme Court that the statute violates the 14th amendment in that it deprives the contractor of his liberty and property without due process of law, and denies him the equal protection of the laws. The court holds that the statute does not violate the 14th amendment, and in the course of the opinion, written by Mr. Justice HARLAN, says: "``If a statute,' counsel observes, ``such as the one under consideration, is justifiable, should it not apply to all persons and to all vocations whatsoever? Why should such a law be limited to contractors with the state and its municipalities? * * * Why should the law allow a contractor to agree with a laborer to shovel dirt for ten hours a day in performance of a private contract, and make exactly the same act under similar conditions a misdemeanor when done in performance of a contract for the construction of a public improvement? Why is liberty with reference to contracting restricted in one case and not in the other?'

"These questions — indeed, the entire argument of defendant's counsel — seem to attach too little consequence to the relation existing between a state and its municipal corporations. Such corporations are the creatures, mere political subdivisions, of the state for the purpose of exercising a part of its powers. They may exert only such powers as are expressly granted to them, or such as may be necessarily implied from those granted. What they lawfully do of a public character is done under the sanction of the state. They are, in every essential sense, only auxiliaries of the state for the purposes of local government. They may be created, or, having been created, their powers may be restricted or enlarged, or altogether withdrawn, at the will of the legislature; the authority of the legislature, when restricting or withdrawing such powers, being subject only to the fundamental condition that the collective and individual rights of the people of the municipality shall not thereby be destroyed. [Citing several cases, the last being Williams v.Eggleston, 170 U.S. 304, 310.] In the case last cited we said that ``a municipal corporation is, so far as its purely municipal relations are concerned, simply an agency of the state for conducting the affairs of government, and as such it is subject to the control of the legislature.'" The court quotes with approval from the opinion in City of Clinton v. Cedar Rapids Missouri River R.R. Co. (24 Iowa 455, 475): "Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the state, and the corporation could not prevent it. We know of no limitation upon this right, so far as the corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature." After referring to the possible motive of the legislature in making the statute, the court continued: "We have no occasion here to consider these questions, or to determine upon which side is the sounder reason; for, whatever may have been the motives controlling the enactment of the statute in question, we can imagine no possible ground to dispute the power of the state to declare that no one undertaking work forit or for one of its municipal agencies should permit or require an employee on such work to labor in excess of eight hours each day, and to inflict punishment upon those who are embraced by such regulations and yet disregard them. It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the state. On the contrary, it belongs to the state, as guardian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf,or on behalf of its municipalities. No court has authority toreview its action in that respect. Regulations upon this subject suggest only considerations of public policy. And with such considerations the courts have no concern."

The case under consideration is not controlled by Rodgers'Case (166 N.Y. 1). The decision in that case is that so much of the statute as in effect requires a contractor for municipal work to agree that he will pay his workmen not less than the prevailing rate of wages, and makes the contract void if he fails to pay at such rate, at least, is unconstitutional. It is said by the court in support of that decision that the statute invades rights of liberty and property in that it denies to the contractor the right to agree with employees as to the rate of compensation, and imposes a penalty upon the right of the contractor to agree with employees upon terms of employment. It is true that in one of the prevailing opinions argument sufficiently broad to cover this case is made, but it is not necessary for the decision, and is obiter, and, therefore, need not be followed. Our conclusion is that so much of the statute as is involved in this case is constitutional.

The second question presented by the record is: Did the plaintiff waive his right to insist that his compensation should be at the prevailing rate of wages for rammers in the city of New York? Section 3 of the Labor Law does not attempt to fix in dollars and cents the wages to be paid to those employed on state or municipal work, but provides that such wages "shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality." The statute, therefore, made it the duty of the person charged with employing plaintiff to ascertain the prevailing rate of wages for similar services in the city, and then to fix the compensation at that amount, or a still greater one, and by the section following the legislature undertook to assure such action by the officials commanded to fix wages at not less than the prevailing rate by providing that an official violating the provisions of the act would be guilty of malfeasance in office, and be suspended or removed.

We must assume — in view of the fact that the question arises from a demurrer to the complaint — that all of its allegations are true, and that the officer employing the plaintiff did not obey the statute, and hence became subject to its penalties. But that fact in nowise aids the plaintiff in his present contention. He had been in the employ of the city for some time prior to May 10th, 1894 — when the statute went into operation — at the rate of $3 a day, and that sum the city continued to pay, and he to receive without protest, for a period of six years. The prevailing rate of wages for that period was $3.50 a day, and the employing officer should have fixed plaintiff's wages at that sum or greater. But he did not do it, and while the plaintiff could have properly insisted that the officer should heed the command of the statute in that respect, he chose instead to continue in the service of the city without objecting to the compensation.

Now, "it is well settled by authority that a man may waive any right that he has, whether secured to him by contract, conferred on him by statute or guaranteed him by the Constitution." (People ex rel. McLaughlin v. Bd. Police Comrs., 174 N.Y. 450,456, and cases cited.) And the legal effect of plaintiff's action in accepting from time to time during a period of six years, without protest, the wages paid to him by the city, was to waive any claim that he might have had at the time to insist that the employing officer should fix his rate of compensation at a greater sum than he did.

It follows that plaintiff is not entitled to recover.

The judgment should be affirmed, with costs.