The opinion
Ingraham, P. J.:
I fully concur in the opinion of my brother Scott that section 14 of the Labor Law (Consol.' Laws, chap. 31; Laws of 1909, chap. 36) is a violation of both the Federal and State Constitutions. (See U. S. Const. 14th Amendt. § 1; State Const. _ art. 1, §§ 1, 6.)
As to the second question raised, I do not think that this *461 section of the Labor Law applies to contracts made by the city of Hew York to build the subways which are described in the complaint in this action. The question, it seems to me, is not whether the Legislature had power to regulate the method by which the municipal corporation of the city of Hew York should carry on its work or make its contracts for the improvement of the property which it held as a proprietor or owner of such property, but whether the Legislature has attempted to do so. The provision of section 14 of the Labor Law is: “In the construction of public works by the State or a municipality, or by persons contracting with the State or such municipality, only citizens of the United States shall be employed.” This provision relates solely to the construction of public works, and in the construction of such public works the evident intention was to limit the power of the State or a municipality or any persons contracting with the State or municipality. It was conceded that the city of Hew York has large interests which it holds, not as public property in the sense which such property is held by the State or a municipal corporation for public purposes, but in a strictly proprietory right, and which it is authorized by the Legislature to improve for the benefit of the city and to enable it to receive for the city the profits which will accrue from such improvements. Take the case of the docks and wharves that the city owns and has improved and rents to those engaged in the commerce of the port, receiving for the use of the municipal corporation the rents or emoluments paid for their use. As to a contract to build such a dock or structure thereon, I think it could well be said that it was not a public work in which the city was engaged, but rather a private work for the benefit of the municipality, as distinct from a work for the benefit of the public at large. So as to many other contracts which the city is authorized to make for the improvement of its property and for the enhancement of its revenue. And it seems to me clear that the building of these subways is within this class. The city is not building these subways for the benefit of the People of the State, but for the benefit of the municipal corporation, and it owns such subways, and they are operated not as public works but as the private property of the city. It is authorized to *462 lease these subways when built to a private corporation. All the public are excluded from the subways or the benefits that flow from their construction and operation except upon the payment of a fee charged, a percentage of which is paid to the city, and at the expiration of the term for which they are leased the property reverts absolutely to the city to be a part of its private property. (Matter of Rapid Transit R. R. Comrs., 197 N. Y. 96 .)
It seems clear, therefore, that even assuming that the Legislature had power to impose such an obligation upon the city of New York by limiting the prohibition to “ public works,” such limitation did not apply to work of the character described in the complaint in this action, and, therefore, the provision of this section of the Labor Law did not apply to the city of New York when building a subway or railroad as a business enterprise of the city.
McLaughlin, J., concurred.
Judgment sustaining demurrer of appellant Heim reversed, with costs, and demurrer overruled, with costs to said appellant in this court and in the court below, and judgment directed for the relief demanded in the complaint. Order to be settled on notice.