The plaintiff alleges that prior to the 10th day of May, 1894, he was employed by the defendant through its department of public works “ as rammer; ” that his employment was for no definite or fixed term and that he received wages at the rate of three dollars per day; that on said day chapter 622 of the Laws of 1894 became operative; that he was thereafter employed in the same capacity without definite term until the 1st day of January, 1900, and received compensation at the rate of three dollars per day; that from and after the enactment of chapter 622 of the Laws of 1894 the prevailing rate of wages for this class of work in the city of New York and vicinity was three dollars and fifty cents per day; that he has duly presented a claim for the difference between the compensation received and the prevailing rate of wages, and payment thereof has been refused. The action is brought to recover the difference between the amount received and the compensation to which the plaintiff claims to be entitled by virtue of the provision of the act of 1894 as re-enacted in section 3 of the Labor Law, which requires, among other things, that laborers, workmen and mechanics employed upon public work by a city shall be paid not “ less than the prevailing *137rate for a days work in the same trade or occupation in the locality ” where the work is performed.
If the plaintiff contracted with the city for a lower rate of wages he may not be entitled to the benefit of the provisions of this statute (Clark v. State, 142 N. Y. 101), and it may well be that the circumstances are such that by accepting the lower compensation he should be estopped from claiming more, or that he has waived his right to the higher rate of wages, but none of these things appear on the face of the complaint, and, therefore, they are not presented by the demurrer.
The sole question argued on the appeal is the constitutionality of this provision of the Labor Law as applied to municipal employees, and both parties are desirous of making this a test case, and are anxious that the question should be considered on its merits. We are of opinion that the constitutionality of the law affecting such employees is fairly presented and should be determined.
The Court of Appeals decided in the case of People ex rel. Rodgers v. Coler (166 N. Y. 1) that this provision of the Labor Law was unconstitutional and void as to contractors with a municipality for the performance of public work. In the discussion of the question the learned judge who wrote the prevailing opinion expressed the view that it was also unconstitutional as applied to municipal employees. Inasmuch as that question was not necessarily presented such discussion was obiter dictum, and, as we have been frequently reminded by that learned court, would not be deemed an authoritative adjudication by it. Consequently, it is not binding upon us. With respectful deference, therefore, to the view there expressed, we feel free and deem it our duty to decide the question according to our own judgment of the law. Municipal corporations are created by the Legislature, and from it they derive their authority, accompanied by duties and obligations to the State. We do not question the doctrine that a city, with respect to its property and private contract rights, enjoys “practically” the same immunity from legislative interference as individuals; but there are well-recognized exceptions to this rule. The Legislature may not create a liability against an individual, but it is well settled that it may legalize a claim against a municipal corporation which is founded upon a moral obligation, although the claim be not enforcible either by *138action at law or suit in equity. Long before there was any civil service provision in the Constitution the constitutionality of the civil service laws which, by regulating to a certain extent, restricted cities in matters of appointment and employment were sustained by the courts; and the municipalities were in some instances against their will compelled to make appropriations for maintaining the local civil service commissions. This would seem inconsistent with the unrestricted constitutional right of the municipality to obtain services and labor at the lowest rate at which it might be able to secure the same. If the municipal officers cannot be restricted with reference to the salaries or wages to be paid, it is difficult to see upon what principle they may be restricted with reference to whom they may appoint or employ.
Moreover the doctrine stated relates to property of the municipality after the same has been acquired and to contracts after the same home been made. The authority of a municipality to acquire property and make contracts is derived from the Legislature, which may impose upon its exercise reasonable conditions, restrictions and obligations. The statute under consideration does not purport to interfere with existing contract rights and is applicable only to contracts made after its enactment. It has always been the practice of the Legislature to fix the salaries and compensation of the principal officers and employees of municipalities or to provide that the same shall be fixed, usually within a maximum and a minimum limitation by some municipal authority. Statutes of this character have never been declared unconstitutional unless they contravene other provisions of the Constitution prohibiting the increase of compensation during a term of office or employment. Furthermore, the constitutionality of statutes fixing the compensation of city employees who are not officers and perform no higher grade of service than those performed by the plaintiff has been sustained. (Clark v. State, 142 N. Y. 101. See, also, McGraw v. City of Gloversville, 32 App. Div. 176; McCunney v. City of New York, 40 id. 482, 484 ; People ex rel. Satterlee v. Board of Police, 75 N. Y. 38.) If the Legislature itself may constitutionally fix the salaries of employees of a municipality, we see no reason why it may not instead provide, as it has done by this statute, that as to employees performing certain classes of work for which there is a *139prevailing rate of wages in the locality, such prevailing rate of wages shall be paid. Prior to the decision in the Rodgers Case (supra) this court frequently affirmed the provision of this statute relating to the payment of the prevailing rate of wages to municipal employees and enforced the same. (McMahon v. Mayor, 22 App. Div. 113; McCann v. City of New York, 52 id. 358; McAvoy v. City of New York, Id. 485; McCunney v. City of New York, supra.) The McCann and McAvoy Cases (supra) were affirmed by the Court of Appeals (166 N. Y. 587, 588); but that court expressly refrained from passing on the constitutional question on the ground that it was not properly presented by the record and had been expressly waived on the argument. It has also been held — we do not mean to approve or disapprove the doctrine — that it is competent for the Legislature to provide that employees of a municipality shall not be required to work more than eight hours in twenty-four consecutive hours “ except in case of necessity, in which case pay for such labor shall be at the rate of time and one-half for all time in excess of such eight hours ” (People v. Warren, 77 Hun, 120); and that section 384h, subdivision 1, of the Penal Code, which provides that “ any person or corporation who, contracting with the State or a municipal corporation, shall require more than eight hours work for a day’s labor ” is guilty of a misdemeanor, is constitutional and valid. (People v. Orange County Road Construction Company, 73 App. Div. 580.) It may be here observed that, although the discussion in the prevailing opinion in the Rodgers Case (supra) would seem to indicate the invalidity of the eight-hour provision of the Labor Law as well as the provision relating to the prevailing rate of wages, that learned court does not consider such question decided by that decision. (People ex rel. Lentilhon v. Coler, 168 N. Y. 6, 8.) Manifestly one of the purposes of the Legislature in enacting the statute under consideration was to insure the payment of living wages to the employees of municipalities whose salaries or compensation was not fixed by the Legislature or by the municipal legislative body. We are asked to hold that the municipality, the creature of the Legislature, has the constitutional right in defiance of the legislative will to seek out in any part of the land the cheapest grade of mechanics and workmen obtainable and import them into this city and employ them on the public *140works, notwithstanding that the effect may be that such employees will tind themselves working at starvation wages and the citizens and residents of the city whom they displace may become subjects of the public bounty, with a resulting duty on the part of the city imposed by the Legislature, clearly within constitutional limitations, of supporting and maintaining them. Manifestly there would be no economy in this, and it would be unfair and unjust both to the imported employees and to the city and its citizen inhabitants. Such methods have frequently resulted in strikes, entailing untold misery and suffering, not only upon the displaced employees, but oftentimes upon the public as well.
The “ prevailing rate of wages ” does not mean the wages paid by the municipality itself, but the market rate or the rate generally prevailing in the locality for similar services to those performed by the classes of employees enumerated in the statute. (McMahon v. Mayor, supra) The standard thus prescribed by the Legislature is apparently practicable, and the Legislature, presumably upon proper investigation, has so -determined. Of course the statute is not controlling where there is no local prevailing rate of wages with reference to similar services. (McCunney v. City of New York, supra.) It is but right and just that persons engaged in the public service, particularly mechanics, workmen- and laborers, whose compensation is the lowest, should receive as high remuneration as those engaged in similar private employment. Living wages are calculated to insure greater skill and more faithful performance of public services. Furthermore, the public interests are promoted by encouraging laborers, workmen and mechanics tq become permanent residents of the city or vicinity, rather than to leave them in a state of uncertainty and consequent unrest with reference to their tenure of employment and compensation, as would be the case if this statute were declared unconstitutional.
We agree with the learned counsel for the appellant that the amount of other claims of this character, no matter how numerous, should not influence the decision as to the constitutionality of the law. Doubtless the city will be able to protect itself against any unjust claims by proving either a contract for the rate of wages paid or waiver or estoppel.
It follows, therefore, that the interlocutory judgment should be *141reversed, with costs, and the demurrer overruled, with costs, but with leave to the defendant to interpose an answer upon payment of costs of this appeal and of the demurrer.
O’Brien, J., concurred.
Judgment affirmed, with costs.