People ex rel. Warren v. Beck ( 1894 )

Hatch, J.

"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.

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 the Supreme Court respecting the obligations and rights of employer and employee and the relation of each to the state are questioned. But the claim is that such rules have been misapplied.

It was decided in United States v. Martin, 94 U. S. 400, that the government had the right to determine the number of hours which should constitute a day’s labor for its employees, and that a statute which fixed the number of hours was to be regarded as forming the basis for all labor contracts made with the government and constituted a direction by the government as principal to its agents. The statute then under consideration did not prohibit a contract for more hours of service in a day, and it was held that such was not its intention ; that no change in the law respecting the right of parties to contract was contemplated, and that a contract for more hours of service than the statutory period was valid. The importance of the decision, as applied to the facts here, is the recognition of the right that the government has the power to determine what hours, for it, shall constitute a day’s labor. The principle did not need an authority to support it, but it was made more sure of application by judicial recognition. If the government has the power of determination in this regard, then it must follow that it has also the power to make its determination effective and provide by penalty the enforcement of the law; this is the ordinary and frequent exercise of governmental power; consequently, all agents of the government become subject to the penalty if they infringe the law. Does this in anywise interfere with, the laborer 1 Is his right above the conceded power of government in this respect ? His right is the right to offer his labor in the market equally with every other laborer of his class, and no more. If he offer it to the government he knows what terms the government has prescribed, and, if he is not willing to accede to those terms, he may not be compelled thereto. But where does the power reside, or did ever reside, in the law, which will compel the government to change its terms to compliance with what the laborer demands ? His right is presently, at the place where he offers his labor, but it is subject to the rights of the party, at the same time and place, to whom the labor is offered. It seems to follow, therefore, that between the government and the laborer a law which prescribes the hours that shall constitute a day’s work, and prohibits by penalty its violation, infringes upon no right possessed by either. 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, is 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 exemption from such statute when it has voluntarily in terms incorporated it in its contract and agreed to be bound by and carry out its terms ? The city said to the defendant, and to all other contractors, when it invited bids for the performance of the work, the statute is one of the conditions which must be complied with, and an obligation which must be assumed by the contracting party. The defendant was not obliged to bid ; the conditions imposed applied equally to all who should bid; the act of bidding was with full knowledge and voluntary. Under these conditions defendant made its bid, and, when awarded the contract, voluntarily executed the same, and assumed the obligations imposed upon the city by the statute. How can it be said that he was an independent contractor freed of obligations ? He was an independent contractor, but he is not independent of the obligations imposed by the contract. He has chosen to substitute himself in the place and stead of the city in this regard, and, therefore, becomes subject to the same obligations and duties which the law imposed upon it. Defendant, by bidding and accepting the contract, became the recipient of ' all the benefits which accrued therefrom, and he should not now be heard in repudiation of lawful obligations assumed thereby.

It is said in Bertholf v. O'Reilly, 74 N. Y. 517 : “ A party cannot object upon constitutional grounds to a liability which he has voluntarily assumed, in consideration of a benefit conferred, and one may renounce even a constitutional provision made for his own benefit.” 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.