Opinion
March, 1900.
Ingle Carpenter and Carlos C. Alden, for plaintiff.
John Whalen and Charles Blandy, for defendant.
The Acts of 1894 (Chap. 622) and 1897 (Chap. 415) apply only to mechanics employed in the usual way to do laboring work, and not to an appointee, like the plaintiff, holding under a yearly employment at a fixed salary, and furnished with board and lodging without charge by the municipality. A person situated as the plaintiff was is not brought into competition with skilled painters, seeking daily or weekly employment, so that he is clearly not within the reason or purpose of the law, which, in consequence, does not apply. McCunney v. City of New York, 40 A.D. 482. The Act of 1894, supra, was expressly repealed on the passage of the Act of 1897, supra (see vol. 1, Laws of 1897, p. 501), and the latter act was in turn repealed by the Act of 1899 (Chap. 567), not in express terms, but by necessary implication — a question which will be hereinafter discussed. The Act of 1894, in regard to prevailing wages, expressly provides that all mechanics, workingmen and laborers "employed by the State or any municipal corporation," or in the employ of persons contracting with the State or such corporation for performance of public works, "shall receive not less than the prevailing rate of wages" in their respective callings. The Act of 1897 (§ 3), after referring to public works, provides that "the wages for such public work shall be not less than the prevailing rate for a legal day's work in the same trade or calling in the locality where the work is performed," and expressly declares that "this section applies to work for the State or a municipal corporation," or for contractors thereof. The Act of 1899 amends section 3 of the Act of 1897, by altering and reconstructing the entire section and making the same read as amended. As reconstructed, that portion of former section 3 which provided that it applied "to work for the State or a municipal corporation" was eliminated for the evident purpose of relieving the State and municipal corporations from the rule relating to prevailing wages; and the reconstructed section requires the State and municipal corporations to observe the following provisions: (1) "Each contract to which the State or a municipal corporation is a party which may involve the employment of laborers, workmen, or mechanics, shall contain a stipulation that no laborer, workman, or mechanic, in the employ of the contractor, subcontractor, or other person, doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight hours in any one calendar day," etc. (2) "The wages to be paid for a legal day's work, as hereinbefore defined, to all classes of such laborers, workmen or mechanics upon all such public work or upon any material to be used upon or in connection therewith, shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality within the State where such public work on, about or in connection with which such labor is performed in its final or completed form is to be situated, erected or used. Each such contract hereafter made shall contain a stipulation that each such laborer, workman or mechanic employed by such contractor, subcontractor or other person on, about or upon such public work shall receive such wages herein provided for. Each contract for such public work hereafter made shall contain a provision that the same shall be void and of no effect unless the person or corporation making or performing the same shall comply with the provisions of this section," etc. The expression "upon all such public work" refers to work to be done by contractors, and not by the State or a municipal corporation without the agency of contractors. The Legislature did not intend to hamper the operations of State or local government with the provisions of the act further than to require contractors while engaged on public works to stipulate in their contracts to pay the mechanics employed on the job wages at the rate prevailing in the locality. That the re-enactment operated as a repeal of section 3 of the Act of 1897 is clear, both upon principle and authority. The section, as reconstructed in 1899, deals with great particularity with every phase of the question of prevailing wages, but was careful to omit the words contained in the section as it formerly existed, declaring that it applied to work "for the State or a municipal corporation," showing a clear legislative intent to abrogate that provision. A subsequent statute, repugnant to a prior one, repeals it. And if a subsequent statute be not repugnant, in all its provisions, to a prior one, yet if the last was clearly intended to prescribe the only rule that should govern, it repeals the former one. Dexter L.P.R. Co. v. Allen, 16 Barb. 15; People ex rel. Ross v. City of Brooklyn, 69 N.Y. 605; Matter of Rochester Water Commrs., 66 id. 413, 421, 422. A statute which is amended and re-enacted so as to read as prescribed in the amendatory statute is thereby wholly annulled as to all future cases, and, except as to rights and duties already existing, becomes merged and incorporated in the later statute. People v. Wilmerding, 136 N.Y. 363; People v. Jaehne, 103 id. 182; People ex rel. Ross v. City of Brooklyn, supra; McDermott v. Nassau E.R.R. Co., 85 Hun, 422. An act which amends an existing statute "so as to read as follows," thereupon enacting a new and substituted provision, repeals all the former statute omitted from the act as amended. Moore v. Mausert, 49 N.Y. 332; People ex rel. Sears v. Board of Assessors, 84 id. 610. There is no such thing as a vested right in a public law which is not in its nature a grant or a contract. Whatever cause of action was acquired under the Acts of 1894 and 1897 was not given by grant or contract (McCarthy v. Mayor, 96 N.Y. 1), but by force of those statutes. They conferred inchoate but not vested rights and the repeal of those acts in 1899 effectually terminated all legal claim to a recovery thereunder. Washburn v. Franklin, 35 Barb. 599; Hoppock v. Stone, 49 id. 524; Butler v. Palmer, 1 Hill, 324. The only theory on which the municipality could be held under said acts was that an employment of a mechanic at a fixed compensation less than the "prevailing rate" was contrary to the provisions of said acts, and as to such compensation, fixed in violation of law, the contract was void. So considered, the repeal of the acts creating the illegality legalized the contract as effectually as if said acts had never been passed (Washburn v. Franklin and Hoppock v. Stone, supra; Curtis v. Leavitt, 15 N.Y. 152), and at the same time divested all inchoate rights which arose under the acts repealed. Butler v. Stone and Curtis v. Leavitt, supra. In conclusion, the court holds that the repeal of the Acts of 1894 and 1897 defeats any right of action thereunder, and that no right whatever exists against the municipality under the Act of 1899. The complaint was, therefore, properly dismissed, and the motion for a new trial must be denied.
Complaint dismissed and motion for a new trial denied.