The Montgomery advertiser., 1904-12-11
EIGHT-HOUR LAW
NEW YORK APPELLATE BENCH DECIDES LABOR ACT IS UN-2
 CONSTITUTIONAL.
Has no Power, 1t Says, to Make City Pay Short Day
 Wages.

Albany, N Y, Special.
 By a decision today the New York State Court of Appeals declared un- constitutional the labor law which pre- hibits contractor from employing his men more than eight hours day on city, county, or State work. The de- cision was in an action brought by Harry Cossey to compel payment by the city of New York of $2S.215 for six scows manufactured for the street. cleaning department. Payment was refused on the ground that he had violated the terms of his contract in employing his men over eight hours a day Cossey did not deny this, but claimed that the law was unconstitu- tional.
 The Court of Appeals reverses the lower courts and grants the appellants application. Judges O'Brien, Martin and Vann hold that the law is uncon- stitutional in that 1t deprives an in- dividual of property without due pro- cess of law. Chief Judge Cullen, with Judge Werner concurring, makes the decision one of precedent.
 Declares Unions Brighten Courts.
 In his conclusion the chief judge says: 'I fear that the many outrages of labor organizations or of some of their members have not only excited just indignation, but at times frighten- ed courts into plain legal inconsist- encies and into the enunciation of doc trines which, if asserted in litigations arising under any other subject than labor legislation, would meet scant courtesy or consideration"
 Judge Cullen takes the ground that the princiuple involved in this case is precisely similar to that in the action of The People ex rel Rogers vs. Coler. The latter was the earliest case that arose under the labor law and in de- ciding 1t the courts held that the statute was unconstitutional in so far as 1t involved the prevailing rate of wages"
 Legislature Exceeds Power over City.
 Comparing tha two cases. Judge Gull len says: This difference in circum- stances would not justify a distinction in principle and therefore the decision in the Rogers case must control the disposition of the present case, unless the Rogers case has been overthrown by subsequent cases in this court or in the Supreme Court of the United States.
 The decision about to be made can, therefore. stand only on one ground, the unconstitutional interference of the legislature with the right of the muni- cipality. That proposition having been explicitly decided in the Rogers case I feel 1t my duty to follow it, re- gardless of my own opinion on the question:"
 Judge O'Brien Gives His Views.
 Judge OBrien says: "One of the grounds upon which the Rogers case rests is that the statute there con sidered 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. as- serts that this ground has been en- tirely swept away by the case of Atkins vs. Kansas. in which the United States Supreme Court affirmed the con viction of contractor for violating the eight-hour law of that State. I do not concur in that view.
 Tn my opinion the Kansas case does not decide or sweep away what we held in the Rogers case and should hold in this case-namely, that the statute in question violates the constitution of the State in that 1t deprives the relator in this case, as it did in the Rogers case. of his property without due pro- cess of law.