EIGHT-HOUR LAW NOT APPLICABLE TO MATERIALS PURCHASED BY

CONTRACTOR.

Bohnen v. Metz, 126 App. Div. 807, affirmed by the Court of Appeals December 15, 1908; opinion by Justice Houghton in the Appellate Division. The parties submit their controversy under section 1279 of the Code of Civil Procedure, and by their stipulated facts show that the plaintiff is a citizen of this State and the defendant city a municipal corporation, and the defendant Metz its officer charged with the duty of authorizing the payment of any moneys due or to become due on a contract with such municipality; that a contract was made between the city and the defendant Wille for the erection of a municipal building for the sum of $30,000, in which building there were to be doors, windows and other manufactured woodwork. By the contract Wille agreed that he would comply with the provisions of chapter 415 of the Laws of 1897, as amended, known as the Labor Law, and that he would not permit or require any laborer, workman or mechanic in the employ of himself, or sub-contractor, or other person doing or contracting to do the whole or a part of the work embraced in his contract to work more than eight hours in any day, except in cases of emergency, and that he would pay the rate of wages prevailing in the locality, and that the contract should be void unless he should fully comply with such provisions of the Labor Law. In the course of construction, doors, windows and other manufactured woodwork required for the building and used in it were manufactured for the special purpose at the request of Wille by a manufacturer within the State of New York who employed workmen and mechanics more than eight hours a day and paid them less than the prevailing rate of wages in the city of New York. By the terms of the contract $1,000 is now due, and the plaintiff as a citizen of the State pursuant to the right given him by section 4 of the Labor Law (as amd. by Laws of 1899, chap. 567), challenges the right of the city and its fiscal officer to make such payment on the ground that Wille by purchasing doors, windows and woodwork for the building from a manufacturer who employed his men more than eight hours a day and paid them less than the prevailing rate of wages, forfeited his contract and the right to any payment thereunder. The city, through its officers, refuses to declare the contract void and submits to the court whether or not it is its duty so to do.

Whether section 3 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 567; Laws of 1900, chap. 298, and Laws of 1906, chap. 506), providing that every contract with the State or a municipal corporation involving the employment of laborers, workmen or mechanics, shall contain a stipulation that no such laborer, workman or mechanic in the employ of the contractor, sub-contractor or other person doing, or contracting to do, the whole or a part of the work, embraced in the contract shall be permitted or required to work more than eight hours a day, or be paid less than the prevailing rate of wages of the locality in which the work is to be done, and shall be void unless such stipulation is observed, be deemed constitutional or unconstitutional, the stipulated facts do not bring the contractor Wille within its provisions.

The manufacturer who worked his men more than eight hours and who

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did not pay the prevailing rate of wages was not a Sub-contractor or other person doing, or contracting to do, the whole or a part of the work," within the meaning of the statute. It was necessary that the windows and doors be made to measure, and, therefore, it was necessary that an order for their manufacture be given. The transaction amounted, however, to a mere purchase of material necessary for the building.

The construction of the statute contended for by plaintiff would follow the iron beams necessary for a building to the mines, the woodwork to the logging camp and the stone to the quarry, and would put a contractor to the hazard of forfeiture of his contract and all payments due him in the purchase of any material for the construction of any municipal building.

In 1905 the People adopted an amendment to section 1 of article 12 of the Constitution, providing that "The Legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection. welfare and safety of persons employed by the State or by any county, city, town, village or other civil division of the State, or by any contractor or subcontractor performing work, labor or services for the State or for any county, city, town, village or other civil division thereof." By virtue of this constitutional power the Legislature, by chapter 506 of the Laws of 1906, reenacted section 3 of the Labor Law as it has been amended by chapter 298 of the Laws of 1900, adding thereto only the provision that it should not apply to the "construction, maintenance and repair of highways outside the limits of cities and villages."

Assuming that the present law is free from the vices of the former law pointed out in People ex rel. Cossey v. Grout (179 N. Y. 417) and People v. Orange County Road Const. Co. (175 id. 84) and kindred cases, it cannot be held that the Legislature intended to include labor employed in the production of raw material necessary for municipal buildings and works. Presumptively, the Legislature enacts labor laws to benefit and aid labor. If the law be held to embrace purchased manufactured material and to work a forfeiture of the contract and all payments earned if in its manufacture and preparation for use the eight-hour law is not observed and the prevailing rate of wages of the locality is not paid, its presumed beneficent object will be defeated, for no municipal work will be done because no contractor will be foolhardy enough to enter into any contract liable to be annulled in such a manner. Labor laws, like any other law which the Legislature sees fit to enact, should be upheld by the courts where no constitutional violation exists. but no absurd interpretation which defeats their object should be permitted. The situation is not changed because the defendant Wille contracted that he would forfeit payments if he violated the law. The material which he purchased did not come within the law as we view it, because the persons employed in the manufacture of the doors, windows and woodwork ultimately used in the building were not employed "on, about or upon such public work" within the meaning of the statute, and hence it was unimportant whether they were employed more than eight hours a day or were not paid the prevailing rate of wages.

Our conclusion is that the defendant Wille did not forfeit his contract and that he is entitled to the payment due under it.

Judgment is directed for defendant Wille, with costs.

Child Labor

Responsibility for Illegal Hiring of Children.

In the June, 1908, Bulletin was reported a decision of the Appellate Division in the First Department, to the effect that the clause of section 70 of the Labor Law which prescribes that no child between 14 and 16 years of age" shall be employed, permitted or suffered to work" in a factory without an employment certificate laid upon employers an absolute duty of preventing such illegal employment which might not be escaped by pleading that directions not to employ children illegally had been given to subordinates or that illegal employment existed without the employer's knowledge. This decision has now been reversed by the Court of Appeals unanimously. The latter court's decision, however, does not hold that a manufacturing concern has fulfilled its obligation as to employment of children by giving directions to its subordinates that no children shall be illegally employed. It holds only that the superintendent in charge of a factory, who is not the proprietor and who does not himself hire the children, is not liable if children are illegally employed without his knowledge and contrary to his directions. Both the proprietor of the business and the subordinate who actually hires the children, it is expressly held in the decision, are liable.

The essential facts in the case are given in the opinion of the Appellate Department in the June Bulletin. The opinion of Justice Chase of the Court of Appeals in full is as follows:

Section 70 of the Labor Law, as amended by chapter 184 of the Laws of 1903, provides: "No child under the age of fourteen years shall be employed, permitted or suffered to work in or in connection with any factory in this State. No child between the ages of fourteen and sixteen years shall be so employed, permitted or suffered to work unless an employment certificate issued as provided in this article shall have been theretofore filed in the office of the employer at the place of employment of such child."

It is provided by the Penal Code (section 384-1), that "Any person who violates or does not comply with:

"1. The provisions of article six of the labor law relating to factories is guilty of a misdemeanor and upon conviction shall be punished for a first offense by a fine of not less than twenty nor more than one hundred dollars.

Said section of the Labor Law is a police regulation intended for the protection of the public health. A violation of its provisions is not malum in se, but malum prohibitum. Such a prohibitive statute should be strictly construed. (People v. Werner, 174 N. Y. 132.)

The defendant was not individually an employer of labor. He was an officer, agent and employee of the corporation and responsible to it for the conduct of its business but so far as appears in no way beneficially interested therein. Such an oflicer, agent and employee has such powers and performs such duties in the management of the property and affairs of the corporation as may be prescribed by the directors or in the by-laws of the corporation. (The Stock Corporation Law, sec. 27.)

We assume that the person who owns a factory is liable for a violation of said section of the Labor Law if contrary to the provisions thereof a child is employed by such owner either directly or through an officer, agent or employee, and wholly without regard to whether the employment is an intentional and willful violation of the statute. The term "person" includes a corporation or joint association as well as a natural person. (Penal Code, sec. 18, subd. 13.)

The owner, by or for whom the child is employed in violation of the statute, is liable because such employment is prohibited. The question of intent is immaterial. (People v. Werner, supra; People v. Kibler, 106 N. Y. 321.) The person actually entering into the contract by which a child is employed contrary to the provisions of the said section of the Labor Law is liable therefor, although such person acts as the agent or employee of another because his act is also contrary to such provision of the statute.

The question directly before us, however, is as to whether an employee of a corporation, who is the superior in authority of another employee of such corporation, is individually liable for such employment in the interest of and for the beneficial purposes of the corporation when such employment is made by the subordinate without the knowledge or consent of the person charged with the crime and contrary to his express direction. We think not.

The Labor Law relating to factories does not treat the owner of a factory and the superintendent or manager thereof as equally responsible in all cases for carrying out its provisions.

Section 76, relating to the registry of children employed in a factory, by its express terms applies to each "person owning or operating a factory and employing children." Sections 77 and 78, relating to the hours of labor of minors and women, apply to "The employer of such person;" section 79, relating to the inclosure and operation of elevators and hoisting shafts and the inspection thereof; section 86, relating to ventilation; section 90, relating to inspection of factory buildings, and section 92, relating to the employment of women and children at polishing or buffing, apply to "the owner, agent or lessee of such factory;" section 81, relating to the protection of employees operating machinery, applies to "The owner or person in charge of a factory where machinery is used;" section 83, relating to factory inspectors ordering the erection of fire escapes, applies to "the owner, proprietor or lessee of any factory or the agent or superintendent thereof, or either of them;" section 87, relating to the report of accidents, applies to "the person in charge of any factory;" and section 91, relating to the inspection of boilers, applies to "the owner, agent, manager or lessee of such factory.”

An examination of all of the sections in the article of the Labor Law relating to factories shows that it was the intention of the Legislature to make an owner, as the person beneficially interested, generally liable for violations

of the article, and also to place upon the persons immediately or personally connected with the acts prohibited the responsibility for carrying out the provisions thereof.

"A person concerned in the commission of a crime whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal." (Penal Code, sec. 29.)

The defendant is not a principal as defined in said section of the Penal Code. "A person who commits or participates in an act which would make him an accessory if the crime committed were a felony, is a principal, and may be indicted and punished as such, if the crime be a misdemeanor." (Penal Code, sec. 31.) The defendant did not commit or participate in the act of employing the girl mentioned in the information or complaint.

There is no provision of the Labor Law which makes the superintendent of a factory of a corporation liable for the employment of a child under sixteen years of age by a foreman or other employee contrary to express directions given in good faith by such superintendent. The defendant is not in any sense a person who aids or abets such employment in violation of the statutes or who counsels, commands, induces or procures such employment. He was not a person who employed, permitted or suffered the girl mentioned to work in the Kursheedt Manufacturing Company.

The judgment convicting the defendant of the crime of violating section 70 of the Labor Law should, therefore, be reversed, and the defendant discharged. (People v. Taylor, 192 N. Y. 398.)

Employers' Liability.

[Under this heading are reported all decisions of courts of record construing the Employers' Liability Law of 1902 or the Railway Liability Law of 1906 together with all decisions interpreting common law liability handed down by the Court of Appeals, and those by the Appellate Divisions of the Supreme Court which unanimously affirm decisions below. Other decisions under the common law are reported here only when the circumstances make them of unusual interest.]

LIABILITY FOR ILLEGAL EMPLOYMENT OF CHILDREN.

Section 70 of the Labor Law makes it unlawful to employ a child under fourteen years of age in any factory. In cases where a child so employed has been injured the courts have held that the mere employment was some evidence of negligence although not conclusive. In the case of Lee v. Sterling Silk Mfg. Co. [BULLETIN 1907, p. 46], which is similar to the present case, the Second Appellate Department held that it was error to exclude all evidence of contributory negligence and assumption of risk or, in other words, the employment of the child in violation of the statute does not establish conclusively the negligence of the defendant. In the present case a girl under fourteen was injured and the same court held that the employment was sufficient to authorize the jury to