tor had made a contract binding- himself to pay the prevailing rate of wages. There is considerable common sense in the reply of the Court to this latter objection. If the lav is valid, the Court says, it governs the con tract and the rights of the parties, whether actually incorporated into the writing or not. If it is not valid, the contractor has not made it so by stipulating in writing to obey it. It js not in the power of the Legisla ture to protect an invalid law from judicial scrutiny by providing that it must receive the assent of the parties to every contract to which it relates." * Judge Parker writes a vigorous dissenting opinion, in which he points out among other things, that whether the statute is unconstitutional or not. there is nothing to prevent the contractor from incorporating the phraseology of the statute into the contract. Whatever we may think of the policy of this legislation, we ques tion very much whether the majority of the Court did not step beyond its duties as to the principle of the law and come perilously near to judicial legislation. Judge Parker carried with him only one of the Court. The law was declared unconstitutional by a vote of five to two. A similar question came before the Court at the same term involving the so-called Dressed Stone Law, a law that required dressed stone for public buildings in New York City to be dressed or carved in the State of New York. In this case Judge Haight, who had joined Judge Parker in the Prevailing Rate of Wages decision, now goes with the majority on the authority of the first case; but the Chief-Judge resolutely reaf firmed his former objections to the law, espe cially on the ground that the provision was in the contract anyway, whether the law was good or not.* In line with these cases was the decision of the Court of Appeals rendered shortly after, 1 People ex. rel. Rodgers v. Coler, 166 N. V. i. 9. ' People ex. rel. Treat v. Coler, 166 N. Y. 144.
in which the Court declared unconstitutional the law prohibiting any person contracting with the State or with a municipal corpora tion from requiring more than eight hours' work for a day's labor. The result of the case in the Court of Appeals was to sustain a demurrer to an indictment. Judge Parker concurs in the result on a question of plead ing; he writes no opinion, but takes pains to go on the record as dissenting "from even the expression of a doubt as to the power of a State to enforce its constitutional mandate by making the violation thereof a crime, whether such violation arises under contract with the State or otherwise." In this case the Court holds that the law conflicts with the Fourteenth Amendment of the Federal Con stitution, because it creates an arbitrary dis tinction between persons contracting with the State or municipality and other employ ers of labor, and thus denies to a person within the State's jurisdiction the protec tion of its laws.' It is of interest to note that at the current session of the United States Supreme Court a similar provision of the Kansas Statute has been held not to con flict with the Fourteenth Amendment.* We have already pointed out that Judge Parker's temperament is far indeed removed from lethargic, and it is not surprising to find that dissenting opinions, or opinions making a bare majority, seem to afford the Chief-Judge the most eagerly welcomed car pet for discussion. And the dissenting opin ion is apt to stray a long way beyond the argument heard in the court room. When in a recent case the Court held that the use of a street for a street surface railway oper ated by electricity imposes an added burden upon the property owners of the fee, the Chief-Judge took it upon himself to write a dissenting opinion, carrying with him one of the judges, in which he cites no less than 3 People?'. Oregon Road Construction Companv, 175 N. Y. 84, 94. 4 Atkin v. Kansas, U. S. Supreme Court Opinions, Advance Sheets, p. 124.
