(77 Hun, 120.)

#### PEOPLE v. WARREN.

(Supreme Court, General Term, Fifth Department..

April 12, 1894.)

•Constitutional Law—Restricting Hours op Labor.

Laws 1891, c. 105, § 504, which provides that contractors for city work in the city of Buffalo shall not accept more than 8 horns for a day’s work, or employ any man for more than 8 hours in 24 consecutive hours, except in cases of necessity, does not “abridge the privileges of citizens," within the inhibition of Const. U. S. art. 14, § 1, nor does it disfranchise or deprive any member of the state of any of his rights or privileges within Const. N. Y. art 1, § 1.

Appeal from court of sessions, Erie county.

Henry J. Warren was convicted by the police court of the city of Buffalo of a misdemeanor, and from a judgment of the court of sessions affirming the judgment of conviction, defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

F. R. Perkins, for appellant.

D. J. Kenefick, Asst. Dist. Atty., for the People.

DWIGHT, P. J.

The offense charged in the complaint before the police magistrate was a violation of section 504 of chapter 105 •of the Laws of 1891, entitled “An act to revise the charter of the city of Buffalo.” The following is the text of the section men-, tioned:

“In contracting for any work required to be done by the city, a clause -shall be inserted that the contractor submitting proposals shall bind himself in the performance of such work not to discriminate either as to workmen or wages against members of labor organizations, or to accept any more than eight hours as a day’s work, to be performed within nine consecutive hours. Nor shall any man or set of men be employed for 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 horns.”

In October, 1893, the Barber Asphalt Paving Company was engaged, under a contract with the city of Buffalo, in paving Delevan avenue in that city. The defendant was the superintendent of the company, and, as such, was charged with the hiring of laborers employed on the work, and regulating and prescribing their hours of labor. On the 9th and several successive days of that month, the defendant employed the complainant and other laborers on the work mentioned, and caused them to work 10 hours of the 24 hours of each day. There was no special necessity for extra labor, *304and no extra wages were paid or promised therefor. The defendant, having been convicted in the police court of a misdemeanor for violating the prohibition contained in the statute quoted above, appealed from that judgment to the court of sessions, and in his affidavit of appeal he alleged, as the sole ground of error, that the statute in question was—

(“Unconstitutional and void, and in violation of and contrary to article 14, § 1, of the constitution of the United States, which reads as follows: ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;’ also section 1 of article 1 of the constitution of the state of New York, which reads as follows: ‘No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof unless by the law of the land or the judgment of his peers.’ ”

• No other ground of error is argued or suggested on this appeal, and no other can properly be considered here. People v. Beatty, 39 Hun, 476; People v. McGann, 43 Hun, 55; People v. Jewett, 69 Hun, 550, 23 N. Y. Supp. 942.

The objection specified we regard as wholly without force. The only right, privilege, or immunity of any citizen of the United States which, it is charged, may be abridged, or of which, it is charged, any member of this state may be deprived by the operation of the statute in question, is what has been called, in language quoted by counsel, “the sacred right of labor;” by which we understand to be intended the right of every man to do such lawful work as he finds employment to do, on such terms as he can agree upon with his employer. We do not understand that there is any right of labor which goes beyond that. No man has a right to labor for me unless I employ him; and, in fixing the terms of the employment, my right is as good as his. He can no more compel me to his terms than I can compel him to mine. If my terms do not suit him, he may seek employment elsewhere; if his terms do not suit me, I may employ another man. Thus the liberty of both is respected, and no right of either is infringed. Of course the terms of employment include the hours of labor. I may hire a man to work for me by day or by night, and for 1 hour, or 12, of the 24. And so might the city of Buffalo, except that, in respect to one class of work, viz. that done under contract, it chose to have a provision inserted in its organic law to the effect that such work should be done for it by days’ work of eight hours each, and *that*all its contracts should so provide. By means of the statute in question, therefore, the terms of employment of laborers, on contract .work, for the city of Buffalo, are fixed, on the part of the city, and it remains for the laborer seeking emloyment to accept or refuse those terms: If he insists upon working more than eight hours a day, he may seek other employment, either for the whole or for the excess of his time. His liberty of choice is not interfered with, nor his right to labor infringed. As in the illustration previously employed, he has no right to labor for the city of Buffalo except upon the terms offered in its behalf. ■ ■

We see, on principle, no ground for the contention of the appellant that the statute in question violates any provision of the con*305stitution either of this state or of the United States, and we believe that contention to be equally unsupported by authority. The question involved in the familiar cases cited by counsel for the appellant does not seem to be germane to the discussion in the case before us. Those are the Slaughterhouse Cases, 16 Wall. 97; the Stockton Laundry Case, 26 Fed. 611; the Oleomargarine Case (People v. Marx) 99 N. Y. 386, 2 N. E. 29; the Tenement House Tobacco Manufactory Case (In re Jacobs) 98 N. Y. 98, and others of similar purport and effect. The principle upheld and enforced in all these cases is that among the rights, privileges, and immunities mentioned in the two constitutional provisions above quoted, which of right belong to citizens of all free governments, is to be numbered (in the language of Field, J., in the Slaughterhouse Cases) “the right to pursue a lawful employment in a lawful manner, without other restraint than such as affects all persons.” We think it very clear from the discussion already had that the principle so-amply defended is not impugned by the statutory enactment here in question. In order to be obnoxious to the principle so defined, the statute must do something more than to fix the terms upon which a single municipal corporation may require laborers on its works to be employed. A precisely similar statute was enacted, in 1892 by the congress of the United States, in respect to the employment of laborers on the public works of the government or of the District of Columbia. We are not aware that the constitutionality of that act has ever been questioned. Its particular application was disputed by the defendant and denied by the court in the case of U. S. v. Ollinger, 55 Fed. 959. But the decision was distinctly upon the ground that the defendant was not a contractor with the government within the meaning of the statute. No such question is presented in this case.

With neither authority to support it, nor a clear balance of reason in its favor, the contention of the defendant must be disallowed. The judgment appealed from should be affirmed. Judgment of the court of sessions of Erie county affirmed, and case remitted to that court for further proceedings accordingly. All concur.