I agree with Chief Judge CULLEN that the statute interposed as the sole defense to the relator's claim is void for the reason that it violates the State Constitution, but I do not concur in all the reasons and arguments upon which a perfectly correct conclusion seems to be based. My reasons for concurring in the general result and dissenting from at least one proposition in the opinion are these:
We certainly decided in the Rodgers case that this same statute which required the contractor at the peril of forfeiting all the fruits of his contract to pay to his workmen what is termed the prevailing rate of wages was in conflict with the Constitution, and, therefore, void. There cannot, of course, be any sound distinction between the clause of the statute which attempts to regulate wages and the clause which attempts to limit the hours of work. Both provisions were enacted at the same time for the same or similar purpose and any valid reason for condemning the former applies to the latter. Moreover, theRodgers case when decided had the support of a previous decision of this court (People ex rel. Warren v. Beck,144 N.Y. 225), and was followed and recognized as the law until theRyan case was decided, which introduced the distinction between the city itself as the employer of labor and the contractor. (People ex rel. Treat v. Coler, 166 N.Y. 149; People ex rel.Rodgers v. Coler, 166 N.Y. 8; People ex rel. North v.Featherstonhaugh, 172 N.Y. 112.) I will not stop to consider or make any comments upon that distinction. My views in that regard appear in the report of the case. I will only add now that the distinction, even if sound, can be of no practical importance, since the city can always circumvent or evade it by employing contractors. *Page 430
One of the grounds upon which the Rodgers case rests is that the statute there considered and now before us deprived the contractor of his property without due process of law, and the learned chief judge, as I understand the opinion, asserts that this ground has been entirely swept away by the case of Atkin v. Kansas (191 U.S. 207). I do not concur in that view. Since that case is being constantly cited as authority for all kinds of paternal legislation, it may not be amiss to analyze it to the end that we may know just how far it goes and what it decides. It is certainly important to know how far it overrules any of the principles involved in the decision of the Rodgers case, since it is not at all likely that this is the last case that will come before the court arising out of these labor controversies. The learned chief judge states in his opinion that our statute and the Kansas statute are substantially the same. That is a very important point in the discussion. With great respect I must say that in this he is, as I think, greatly mistaken. There is a very wide difference between the two statutes in their scope and purpose, as will be seen upon careful examination and reflection. That will be quite apparent when we consider what the two statutes accomplish or attempt to accomplish and the bearing of our own statute upon this case.
It is an undisputed fact that the relator in this proceeding delivered to the city property, the contract price of which exceeded $28,000. The relator furnished this property at his own expense and the city now has it and uses it as its own. The statute, so far as the relator is concerned, confiscates this property, since it deprives him of the right either to have it returned or to enforce collection of the purchase price. It permits the city to declare the contract null and void, to retain the property and grants it immunity from any obligation to pay and furnishes a defense to any suit or proceeding brought by the contractor to recover the contract price. The city has agreed to pay for the property, but the statute now before us forbids such payment and furnishes the city with a good defense if the law is valid. All this is sought to be *Page 431 accomplished, not by any judicial proceeding or legal process, but by a legislative edict "as sweeping and relentless as the torch of Omar." It would seem to be scarcely possible that any one could argue himself into the belief that such a law does not violate the constitutional guaranties for the protection and security of private property and the sacredness of contracts. It is difficult to see how any court could hold that such a law does not interfere with property rights, contract obligations and all remedies for their enforcement, but, as I understand the opinion, just such a decision is imputed to the highest court in the land, since it is asserted that one of its decisions has swept away all ground for the claim in this case and from our judgment in theRodgers case that the statute in question deprives the contractor of his property without due process of law.
In my opinion the Kansas case does not decide any such proposition and does not sweep away what we held in the Rodgers case, and should hold in this case, namely, that the statute in question violates the Constitution of the state in that it deprives the relator in this case, as it did the relator in theRodgers case, of his property without due process of law. In order to get a clear view of the question before the Federal court and what the case decides, it ought to be examined with some care. The learned chief judge is quite correct when he states that only one question was before the court, and that was whether the state statute violated the Federal Constitution in that it deprived the defendant in the case of his liberty without due process of law. It certainly did not assume to deprive him of anything else. The court had before it for construction a statute widely different from our own, since the only remedy prescribed for its enforcement was by indictment and criminal prosecution. It was a criminal case, based upon a criminal statute, that obviously contained no such drastic remedies for enforcement as are to be found in the statute now before us. It did not assume, as our statute does, to destroy or confiscate the contractor's property, or to annul his contract, or to deprive him of any *Page 432 remedy for the collection of the fruits of his contract. It did not touch the contract at any point, nor the money earned upon it. It simply subjected his person to incarceration for violation of the law, and after conviction all his remedies against the city for collecting the price of his work were left intact. He could enforce his claim against the city for the money earned on the contract just as well after conviction as he could before. The wide difference between the Kansas statute and our own will thus be seen at a glance. The former simply punishes the contractor for a specific act or omission, while the latter deprives him of all property rights under his contract, which with us frequently amounts to thousands and even millions of dollars.
The Kansas case decides nothing except the single proposition that the defendant in the case having voluntarily entered into the contract was not deprived of his personal liberty by the statute. That was the sole question before the court and the decision does not conflict in the least with anything decided in the Rodgers case, except possibly what was there said with respect to the personal liberty of the contractor so far as that was supposed to be involved in the right to make contracts with his workmen. There is not a word in the opinion of the court, as I now recall it, with respect to the effect of the statute upon the property rights of the contractor, and for the plain reason that the statute did not assume to disturb or interfere with these rights at all. How very different then is that case from the Rodgers case and the case at bar? It is quite conceivable that a statute may be good which assumes to punish a municipal contractor for violation of some law in the execution of the contract, but it would not follow by any means that it would also be valid if it assumed to deprive the contractor of all rights under the contract when executed. The legislature has the undoubted power to punish a person criminally for shooting game out of season in this state, but if it should attempt to deprive him at the same time, summarily, of the ownership of his gun, a very different question would be presented. The legislature has ample power to *Page 433 make it a crime for a person to disturb his neighbor's oysters lawfully planted in public waters, or to remove the stakes or buoys placed in the water to mark the locality where the oyster beds have been so planted, but it has no power to confiscate the coats or other water craft used in unlawfully removing the oysters and thus violating the statute. (Colon v. Lisk,153 N.Y. 188.) Such cases illustrate the distinction between statutes that assume to punish as crimes forbidden acts and those that assume to confiscate property or to destroy the obligations of contracts. The Kansas statute punishes an act or omission as a crime, while our statute attempts to confiscate property. If I have succeeded in showing in this brief review of that case that it does not decide any such proposition as is claimed, it is quite unnecessary to extend the discussion.
There is, however, one feature of that decision which although not discussed at all in the opinion, is of considerable interest, and that is what seems to be the practical concession on the part of the court of the omnipotence of a state legislature in the creation of new crimes. It is virtually held that the Kansas legislature had the power to make it a crime for a municipal contractor to permit his employees to work five minutes more than eight hours in the day even though the servant wanted to work and the employer was willing to pay extra wages. Of course if the legislature could make it a misdemeanor to permit this, it could make it a felony, and if all this is so there would seem to be no limit to the power of a state legislature in that respect. Whatever may be the law of Kansas, or the law in the Federal courts in that respect, it is quite certain that this court has held that the power is limited and that the legislature has no power to denounce as crimes acts which in their nature and consequences are innocent and harmless. (People v. Gillson,109 N.Y. 389; People v. Arensberg, 103 N.Y. 388; People v.Marx, 99 N.Y. 377; People v. Hawkins, 157 N.Y. 1; Matterof Jacobs, 98 N.Y. 98.) *Page 434
It is quite true that this court has recently held that the legislature could make it a criminal offense for a baker to permit his workmen to work more than ten hours in the day (People v. Lochner, 177 N.Y. 145), but the struggle in that case was to make what some of us thought was a labor law a health law, and so within the police power. Nothing of that kind was claimed for the Kansas statute, or is claimed. Indeed it was expressly held that it could not come within that class of statutes enacted for the promotion or protection of health. But this is a digression that has little, if any, bearing on the case at bar. The only question that we are now concerned with is this: Does the case of Atkin v. Kansas decide that the statute now before us, and which was before us in the Rodgers case, is free from the constitutional objection that it deprives the contractor of his property without due process of law? In my opinion it does not and could not, since no question of that kind was presented by the statute or by the case, and so I conclude that that decision has not swept away one of the most important grounds upon which one of our own decisions rests. The fallacy of the argument that gives such effect to the Kansas case consists in the assumption that because the court held that the Kansas statute does not unduly interfere with personal liberty, it, therefore, held that our statute does not invade the rights of private property. There was no question in the case in regard to the deprivation of the contractor of his property. It is obvious that a case which deals only with the question of personal liberty cannot be an authority to overthrow our decision in theRodgers case based as it was upon an entirely different statute, which invades and was held by us to invade the constitutional safeguards of private property. When we consider that the Kansas statute was not aimed at the contractor's property and does not interfere in the least with his contract or its fruits, or deprive him of the right to sue upon it, or authorize it to be canceled or destroyed, and that our statute expressly does or attempts to do all these things, thereby providing for the destruction of all the contractor's property rights, even to the *Page 435 extent of forbidding any municipal officer to pay him for his work, the wide difference in the destructive power of the two statutes must be apparent. The only reason why the present case is now before us is that the city authorities refused to pay the relator the contract price of the property which he delivered to the city and which the city retains and uses as its own. Except for this statute the comptroller would have paid the claim, and his excuse for refusing to pay contained in the record is simply that the statute forbids him to pay and makes it a public offense if he does. Hence, I think it is plain that the decision in theKansas case did not and could not sweep away any support which the Rodgers case has in the proposition that our statute violated the Constitution in that it deprived the contractor of his property without due process of law.
I have a word to say with respect to the latter part of the opinion. The proposition that a law cannot be unconstitutional which simply requires a party to perform his contract before he can recover upon it cannot of course be disputed, and if that is what this statute means, and all it means, it is probably about as harmless and useless a law as ever was enacted. I assume that the legislature never supposed that it was necessary to pass a statute forbidding a party to enforce a contract that he had himself violated or had not performed. That has been the law from time immemorial, and of course is the law still. If the relator in this case has not performed his contract, he cannot recover and is entitled to no relief. If he has not performed his contract it is not of the slightest consequence whether the statute in question is constitutional or not. In that aspect of the case the statute is not involved in the discussion. But the relator has performed his contract. He has produced and delivered to the city the property which was the subject-matter of the contract and the city neither refused to accept nor offered to return it, or made any objection on the ground of non-performance. Even if such an objection could survive delivery and acceptance of the property, it would have no basis whatever in the facts of this case. *Page 436 If we inquire wherein or in what respect the relator has failed to perform, the answer is that he stipulated not to permit his workmen to work more than eight hours a day. That is the head and front of his offending. That is the breach and the only breach that is claimed. It was not of the slightest consequence to the city whether he permitted his workmen to labor eight hours or nine, so long as he produced and delivered the property that he agreed to deliver. It is a fair test of the importance of that objection to inquire whether the city could have maintained any action against the contractor for the so-called breach. Of course, it could not, for the plain reason that the act of the relator in regulating the hours of work was immaterial and entirely foreign to the subject-matter of the contract. If the contractor had stipulated that his workmen should wear black hats and boots instead of shoes, a breach of that condition, if it is a condition, would not furnish the city with any cause of action or any ground of defense. The obstacle that is in the relator's way when he seeks to recover the $28,000 which the city agreed to pay him as the price of the property delivered is not the stipulation in the contract, but the statute. I doubt if any one would even suggest that if there was no eight-hour statute that the stipulation in the contract would be regarded as of the slightest importance. A breach of contract can never be urged as a cause of action or defense unless the breach is of some stipulation that is material considering the subject-matter of the contract. Stipulations with respect to some extraneous matter, or such as that now under consideration, are not material.
Finally it ought to be observed that this very question was presented, discussed and decided in the Rodgers case. The last paragraph of the opinion is devoted entirely to that question, and it was held that the omission on the part of the contractor to keep this stipulation was entirely immaterial, and no obstacle to his right to enforce the contract. We held that if the statute was not valid the stipulation was not binding, and I fail to find anything in the Atkin case that overrules what we then decided in that regard. *Page 437