(dissenting in part). This appeal presents a question as to the nature and extent of the power conferred by section 220 of the Labor Law providing for the classification of trades or occupations to be used in performing public work.
The power of classification was first added to the law by chapter 300 of the Laws of 1935 which amended section 220 of the Labor Law by adding new subdivisions 3-a to 3-d. A reading of these subdivisions would indicate that the power of classification was intended to be exercised before the letting of contracts. Subdivision 3-a provides it shall be the duty of the department of jurisdiction to ascertain from the plans and specifications the classification of workmen, mechanics and laborers to be employed on State projects. Subdivision 3-b creates an advisory board to be appointed by the Governor to aid in the work of classification. Subdivision 3-d provides for the work of classification of occupations on public work “ proposed to be constructed ”.
The reclassifications complained of in the present proceeding all took place months after the letting of a contract.
The construction work covered by the contract was a section of highway which included a tunnel or culvert about 500 feet long and 8 feet in diameter to be used for the diversion of water to a river. The tunnel was minutely described in the plans and specifications upon which bids were obtained.
Prior to the letting of the contract and pursuant to section 220, a schedule had been prepared by the proper authorities setting forth the classes of labor to be used in performing the work. More than sixty trades or occupations were specified in this schedule and included was the position of “ laborer ”. The prevailing rate of wage for each classification was set forth. However, there was no specification of the trades to be used in any particular portion of the work except such as might be inferred from the nature of the work itself and the statement of the trade. At least, no particular skilled labor was specified as being required for the work of boring the tunnel.
After the letting of the main contract, a subcontract was let to the present petitioner who claimed that it pursued a method of boring a tunnel with the aid of metal protective sheathing known as liner plate that would permit the work to be performed by common labor. As it proceeded to do its work, complaints were made by labor unions contending that certain skilled mechanics should have been engaged to do the tunnel work. Included in those complaining was the Sandhog’s Union.
The contractor pointed out that the tunnel work was being *243done in free air and he insisted it could be and ordinarily was done by common labor. The authorities finally concluded that, the work must be done by ‘ ‘ miners ’ ’ at $2.82 per hour as against $1.71 for laborers.
It was, in effect, conceded at the opening of the second hearing before the Industrial Commissioner that there had been no change in the conditions of the work after the letting of the contract, and that the attempted addition of classifications was due solely to a desire to satisfy the protests of the labor unions. The use of miners was not urged by the State as necessary for the proper boring of the tunnel or under any provision of the contract.
At the end of the schedule of classifications is a notation “ Labor classifications not appearing on this rate sheet can be used only with the consent of the Superintendent of Public Works ”. This has no application in the instant case, as there was a classification of ‘ ‘ laborer ’ ’. The contract, though not in the record, is said to contain a provision also attached to the schedule of classifications “ Any occupation not listed in the above schedule must be requested through the Department of Public Works from the Department of Labor.” Again, this provision is inapplicable, because the occupation of “ laborer ” was listed, and the contractor had no need to request any new classification.
We thus have a situation where what is commonly known as a “ jurisdictional dispute ” was attempted to be settled by the intervention of the public authorities acting pursuant to section 220 of the Labor Law. They attempted to so settle the dispute by adding new classifications though no change had occurred in the work planned and without any contention by the State that the work would be improperly performed by laborers.
In my opinion, there was no authority under section 220 for the action taken here and none may be read into the section by inference.
Section 220 refers generally to the fixation of prevailing rates of wages. As the prevailing rate of wages may change from time to time during the performance of work, the power to fix said rates is a continuing one.
This is recognized in the statute as appears from the provisions found in subdivisions 6 to 9 of section 220 (see, also, Matter of Gander Realty Corp. v. Andrews, 239 App. Div. 618).
The classification of trades and occupations in performing public work was undoubtedly intended to be an aid to the fixation of prevailing rates of wages, but the power to classify is *244a separate act not essentially part of the public policy (N. Y. Const., art. I, § 17) and its limitations as set forth in the statute must be respected.
If new work or a change in plans had been ordered, there might be some basis for inferring the power to make a new classification, but that was not the situation here. In performing the duty of classifying under this section, the public bodies that act, including the advisory board, do so without granting a hearing to the contractor. The settlement of jurisdictional disputes after the contract had been let clearly creates a situation where a contractor must have the right to be heard.
I do not think it was ever intended that these disputes be settled by the exercise of the power attempted here.
In Building Chems. Corp. v. State of New York (164 Misc. 407) it was held that where the State of New York failed to include the classification of waterproofing in its specifications that it could not revise its lists by adding such a trade without breaching the contract. It was said there that it was the duty of the authorities to ascertain and determine prior to the time of advertisement the schedule of wages to be paid the workmen and to file at that time the classifications of such workmen together with a statement of the work to be performed by them.
The present case is even a stronger one for the contractor in that there was a specification of a class of “ laborer ” that could perform the work, for all we know, in the manner in which the contract required.
There was one step taken in this proceeding which seems to have been within the power of the authorities, i.e., the increase of the scheduled prevailing rate for “ laborer ” from $1.71 an hour to $1.87 per hour. To that extent the public officials acted within the scope of their authority, but this determination seems to have been superseded by later ones.
While I agree with the decision of the majority to annul the determination of the respondents, I would limit any rehearing to the question of the prevailing rate of wages for the position of “ laborer ” only.
Peck, P. J., Cohn and Botein, JJ., concur with Breitel, J.; Callahan, J., dissents in part in opinion.
Determination of the State Industrial Commissioner annulled and matter remitted to him for such further proceedings as may be appropriate. Settle order.