COURT OF SPECIAL SESSIONS OF THE CITY OF NEW YORK —BOROUGH OF THE BRONX — PART V.

February 23, 1923.

#### THE PEOPLE v. NEW YORK CENTRAL COMPANY.

Sunday labob — Labob Law — Definition of factory — Laws 1921, oh. 50.

The Labor Law in its definition of factory excludes, and therefore exempts from the requirements as to a day of rest in seven, power houses and other structures used by a public service corporation in operating electric railroads, but excepts from the exemptions repair shops. Held that any part of a power house used at any time in the making of repairs is a repair shop, excepted from the exemption as stated.

Present: Hon. Moses Herrman, Presiding Justice; Hon. Daniel F. Murphy and Hon. Clarence Edwards, Associate Justices.

Appearances:

*Jerome*Donovan, of New York City, *Deputy Attorney General (Floyd H.*Wilmot, of New York City, of counsel), for the People.

*Alex. S. Lyman,*of New York City *(Jacob Aronson,*of New York City, of counsel), for defendant.

Clarence Edwards, Justice:

The defendant is charged by the information with violation of the provision of the Labor Law requiring that workmen in factories shall have one day of rest in seven, and that when the day is not Sunday a schedule shall be made, posted and filed showing the substituted arrangement. (Labor Law, Laws of 1921, chap. 50, § 161, paragraph 1 and paragraph 3; Penal Law, § 1215.)

*435The laborer named was found in the defendant’s powerhouse engaged in repair work on a Sunday, and the schedule above mentioned, as applicable to his case, was not posted or filed.

A small space in the powerhouse was used as location of a lathe and other minor machinery used in making repairs; the laborer made such repairs at this place and wherever need was for his presence in sxxclx work in the powerhouse in connection with the equipment there in use in generating and supplying power to move trains, engaged in interstate commerce, into, and oxxt of, the Grand Central Terminal.

The Labor Law, in its definition of *factory,*excludes, and therefore exempts from the. above requirement, powerlxoxxses and other structures used by a public service corporation in operating electric railroads, but excepts from the exemption repair shops (Labor Law, § 2, paragraph 9.) I think we are reqxxired by the aixthority cited below to hold that any part of a powerhouse xxsed at any time in the making of repairs is *pro hac vice*a repair shop, excepted from the exemption as stated. (People v. Transit Development Company, 178 App. Div. 288.)

The second argument urged by the defense is that recent federal legislation (Act of Feb. 28, 1920, chap. 91, title iii) deals with the same sxxbject, as a branch of interstate commerce, as the provision of the Labor Law in question, and that therefore the latter is superseded and annulled. It is trxxc that xvhere the Congress legislates, having authority, the power of the State to deal with the same sxxbject ceases, xxnless concur--x'ent legislatix’e axxthoritv is expressly reserved in the State. This principle applies to all attempted State legislation in a field occxxpied by national legislation, whether the former be on diverging, parallel or idexxtical lines. Bxxt I thiixk it is exndent here that the sxxbjects of the two acts of legislation are not at all the same. The act of Congress is for the benefit of interstate commerce, to insure efficacy in its eqxxipment by xxsing, *436among other means, the intervention of the Railroad Labor Board to compose differences between workmen and employers. The State law is a police regulation for the general public welfare, enacted because the Legislature was of the opinion that one day of rest in seven for any man working under the conditions shown would conduce towards his becoming and continuing a well-constituted unit in the body politic. That determination is not subject to question here as to its. being within the scope of authority of the State government, its relation to beings and doings in interstate commerce dealt with by the federal law being quite superficial and adventitious. The general police power of a State properly exercised is not affected by legislation of Congress dealing collaterally with persons and objects involved in the State legislation. (See McKelvey v. United States, 258 U. S., 43 Sup. Ct. 132.)

See also opinion of Mr. Chief Justice Taft in United States v. Lanza (decided Dec. 11, 1922), 000 U. S. 000, 43 Sup. Ct. 141, quoting from opinion of Mr. Justice Lamar in Southern Ry. Co. v. R. R. Com., Indiana, 236 U. S. 439, 35 Sup. Ct. 304 (as to apparently concurrent jurisdiction), as follows:

“ This concurrent jurisdiction may be either because the nature of the act is such that at the same time it produces effects respectively within the sphere of state and federal regulation and thus violates the laws of both, or where there is this double effect in a matter of which one can exercise control, but an authoritative declaration that the paramount jurisdiction of one shall not exclude that of the other.”

I therefore advise that the decision of the court on the issue tried be for the People, finding the defendant guilty as charged.

Defendant convicted of the offense charged. All concur.