rule of consistency here, no inconsistency can arise from my approval of the ward system for one city and the general ticket system for another.

The present school law of Ogdensburg provides for the election of three school commissioners annually, to hold office for the term of six years. There are nine school commissioners in said city. The terms of the school commissioners now in office end as follows: Three in 1907, three in 1909, three in 1911.

This bill provides that there shall be no election of school commissioners in May, 1907, but that at the general election in the year 1906 there shall be elected nine commissioners,three for terms beginning June 1st, 1907 and expiring December 31st, 1908; three for terms beginning June 1st, 1907 and expiring December 31st, 1910, and three for terms beginning June 1st, 1907 and expiring December 31st, 1912. The successors to such commissioners to be elected biennially for terms of six years from the first day of January next following their election. The terms of office of all the school commissioners now in office expire, by the terms of the bill, on May 31st, 1907. Provision is made in the old law, and preserved in the amendment, for a non-partisan school caucus for the purpose of nominating school commissioners.

Communications are on file favorable to the bill from A. R. Herriman, President of the Board of Education; John T. Watt and John E. Briggs, members of said board. A communication is on file from Frank Chapman, Chairman of a Committee of said board, in opposition to the bill. From the letter of Mr. Herriman, it would appear that the committee consisted of himself and Messrs. Chapman and Kelly, and that Mr. Herriman refused to concur in the report of the committee. It is stated that the report of the committee was

adopted at a meeting of the Board of Education, with a view to securing an amendment to the bill at this session which would not terminate the terms of office of all the present commissioners. on May 1, 1907.

The only serious objection, from a legal or constitutional point of view, to these two bills is that the entire Board of Education is legislated out of office, whereas, by a curtailment of their term of office, so that the same would expire on the 31st of December preceding the 31st of May in the years their terms now expire, instead of on the latter date, the present board would remain in office for substantially the full terms for which the members thereof were elected. Aside from this, there is nothing unusual about the bills. As a measure of economy, cities of the third class are generally doing away with the spring election, and providing for the election of city officers at the general election in the fall of even-numbered years.

Nothing in either of the bills takes from the people of Ogdensburg the right to choose their elective officers. When terms of office are curtailed, the individuals who are affected thereby are naturally inclined to look with disfavor upon the proposition, and it is therefore not unusual to have the mayor or the common council, or both, recorded in opposition to bills of this kind, when local sentiment generally favors the same; but it must be recalled that the Constitution absolutely prohibits the Legislature from extending the terms of city officers, and it is generally found necessary to curtail the terms of some officers in order to accomplish the purpose of changing the date of city elections from spring to fall.

It would be preferable to shorten the terms of the present elective and appointive officers by as brief a period as practicable in making the change from spring to fall elections, but

it is now too late to amend the bills, and I have concluded to approve them rather than to defeat their main purpose entirely.

MEMORANDUM FILED WITH SENATE BILL Nɔ. 843 RELATIVE TO THE HOURS OF LABOR AND THE PREVAILING RATE OF WAGES APPROVED

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany, May 19, 1906

MEMORANDUM on Senate Bill Int. No. 17, Printed No. 843, entitled

"An act to re-enact section three of the labor law, relative to the hours of labor and the prevailing rate of wages."

The Labor Law is Chapter 415 of the Laws of 1897 and is a compilation of prior acts of the Legislature. Chapter 856 of the Laws of 1867 fixed eight hours of labor as a legal day's work on public work, and since 1870 it has been the law that eight hours shall constitute a legal day's work for all classes of employees except those engaged in farm and domestic service.

The section hereby re-enacted (section 3) was amended in 1899 (Chapter 567) and in 1900 (Chapter 298), and has been a part of the laws of the State in its present form since April 3, 1900, except that the present bill provides that nothing therein shall be construed to apply "to the construction, main

tenance and repair of highways outside the limits of cities and villages."

The penal and criminal provisions of the law, and the provisions affecting wages, do not apply to laborers in private employments, such as clerks in retail and wholesale stores, mercantile establishments and the like. A penal statute fixing the hours of labor of adult male persons employed in private work, not of a dangerous or unwholesome nature, or establishing a rate of wages to be paid for private work, would doubtless be held unconstitutional, as an arbitrary interference with freedom of contract; but this is a question of large import, which I have no occasion to determine or even to consider, for this bill imposes no penalties for violation of its provisions except in case of public employees or employees on public works. This re-enactment of the former law meets a decision of the Court of Appeals adverse to the constitutionality of so much thereof as applied to employees of municipal contractors.

The following brief history of this section in the courts of the State will indicate the purpose and legal effect of this amendment:

The Court of Appeals held, in 1894, that the Legislature has power to pass a general law regulating the compensation of laborers employed by the State, or by officers under its authority (Clark v. State, 142 N. Y., 101); and the same court held in 1904, that the provision of the Labor Law as to prevailing rate of wages, so far as it relates to State or municipal employees, was constitutional (Ryan v. City of New York, 177 N. Y. 271).

The Court of Appeals in 1903, in the case of the People v. The Orange County Road Construction Co., 175 N. Y. 84, by a divided court, upheld the right of the State, when the State itself prosecutes a work, to dictate every detail of the service

required in its performance, prescribe the wages of workmen, their hours of labor, and the particular individuals who niay be employed, but denied that such right exists where it has let out the performance of the work to a contractor.

In 1901 the Court of Appeals held, in the case of People ex rel. Rodgers v. Coler, Comptroller, 166 N. Y. 1, that a municipal contractor who has fully performed his contract might compel the city to pay the amount due by mandamus, although he had failed to comply with his stipulation to pay the prevailing rate of wages; and that if he failed to pay such rate the contract should be void, since the Labor Law, so far as it relates to such a case, was unconstitutional.

Subsequent to the decision of this case, the Supreme Court of the United States, in Atkin v. State of Kansas, 191 U. S. 207, upheld a similar statute prescribing an eight-hour day and the prevailing rate of wages for employees of municipal contractors. Atkin, a municipal contractor, was prosecuted criminally, convicted and punished under this statute. This case might be deemed to be controlling, were it not that thereafter the Court of Appeals of this State, in the case of People ex rel. Cossey v. Grout, Comptroller, 179 N. Y. 417, again by a divided court held that the Atkin case did not control the decision in the Rodgers case, so far as that case held that the Labor Law was an unconstitutional violation of the city's rights and powers.

Last year the people of the State determined that if the Legislature lacked the power to enact such laws in behalf of labor's hours and wages on public works as were deemed wise and salutary, the fundamental law should be so changed as to grant such powers in unmistakable language and by an overwhelming popular vote the Constitution was amended by adding a new section to read as follows: