
    In the Matter of the Petition of the Keystone State Construction Company, Respondent, for a Writ of Certiorari against John Williams, as Commissioner of Labor of the State of New York, Appellant.
    Third Department,
    September 11, 1912.
    Labor Law—violation, of eight-hour law by municipal contractor — report of Commissioner of Labor not final determination — certiorari.
    The determination of the Commissioner of Labor that a municipal contractor is violating section 3 of the Labor Law, prescribing the wages payable to laborers on municipal contracts for eight hours’ work, is not a final determination, and hence certiorari does not he to review it. Under the provision of section 21 of the Labor Law requiring the Commissioner of Labor to report such violation to the officer, department or board having charge of the work, the functions of the Commissioner are merely advisory to the contracting municipality, and the contractor is not concluded by the result of his examination.
    Appeal by the defendant, John Williams, as Commissioner, etc., from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 15th day of April, 1912, denying the defendant’s motion to quash a writ of certiorari and to vacate a stay.
    
      Thomas Carmody, Attorney-General [James A. Parsons, Deputy Attorney-General, of counsel], for the appellant.
    
      Ball & Ludlow [Wilbur L. Ball of counsel], for the respondent.
   Betts, J.:

The Keystone State Construction Company has a contract with the city of New York, made through its board of water supply, to construct the Hill View reservón.’ in the city of Yonkers, a portion of the Catskill aqueduct. -It is engaged in the construction of this reservoir. About a year after the commencement of construction complaint was made to the defendant, the Commissioner of Labor of the State of New York, that the relator was proceeding in violation of the pro-visions of the Labor Law by payment of one dollar and fifty cents per day for common labor while the prevailing rate of wages in that locality for that kind of service was a greater amount per day. The Commissioner of Labor, as was his duty under the statute, investigated the complaint and found it well founded and notified relator that the prevailing rate of wages was one dollar and eighty cents per day of eight hours in the locality where the work under the contract was being •performed.

The relator requested a hearing on the question before, the Commissioner which was granted and a further investigation was had and the Labor Commissioner found that the prevailing rate of wages in the locality was one dollar and seventy-six cents per day of eight hours for a day’s work in the same trade or occupation as was being performed by relator, and so notified the relator and requested it to comply with the law. Whereupon before any further proceedings were taken by the Commissioner of Labor, the relator applied to and obtained from the court a writ of certiorari requiring the State Commissioner of Labor to make a return and providing for a review of his proceedings, together with an injunction staying the Commissioner of Labor from proceeding any further in the matter. A motion was then made by the Commissioner of Labor for an order quashing the writ of certiorari and vacating the injunction order staying the Commissioner of Labbr herein. This motion was denied and from that order of denial this appeal is taken.

The two sections of the Labor Law (Consol. Laws, chap. 31; ■Laws of 1909, chap. 36) with which we are concerned here are section 3 (as amd. by Laws of 1909, chap. 292) and section 21, which so far as material are as follows:

“ § 3. Hours to Constitute a Day’s Work.— Eight hours shall constitute a legal day’s work for all classes of employees in this State. * * * 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 works, 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.”
§ 21. Commissioner of Labor to Enforce Provisions of Article.— The Commissioner of Labor shall enforce all the provisions of this article. * * * If complaint is made to the Commissioner of Labor that any person contracting with the State or a municipal corporation for the performance of any public work fails to comply with or evades the provisions of this article respecting the payment of the prevailing rate of wages, the requirements of hours of labor or the employment of citizens of the United States or of the State of New York, the Commissioner of Labor shall, if he finds such complaints to be well founded, present evidence of such non-compliance to the officer, department or board having charge of such work. Such officer, department or board shall thereupon take the proper proceedings to revoke the contract of the person failing to comply with or evading such provisions.”

The Commissioner of Labor asserts that he was about to present the evidence of non-compliance with the law and violations of the law by the relator to the board of water supply of the city of New York, the board having charge of such work, when he was stayed by the injunction herein.

It is claimed by the relator that the action of the Labor Commissioner here is final and that upon his report to the municipal employing body the rights of the parties are determined and fixed; that hence certiorari will lie here to review the action of the Commissioner of Labor.

The State through its Attorney-General acting for the Commissioner of Labor claims that the rights of the parties are not finally determined by the action of the Commissioner of Labor and that his action is largely advisory. The section of the Code of Civil Procedure claimed by the Attorney-General to apply is section 2122, which, so far as material, in my View of it, is as follows:. . ,

“§ 2122. Except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued in either of the following cases:

“1. To review a determination, which does not finally determine the rights of the parties, with respect to the matter to he reviewed.
2. Where the determination can be adequately reviewed by an appeal to a court or to some other body or officer.”

A little light is thrown upon the question at issue, which is in a small compass here, by judicial decisions.

In the case of People ex rel. Dumary v. Van Alstyne (53 App. Div. 1) it was held that where a municipal board having charge of a contract entered into between the municipality and Dumary, the relator (after a hearing on charges of violation of this section 3 of the Labor Law), decided that the charges were well founded and revoked the relator’s contract, the determination of the board, as to the fact of violation, is not of a judicial character and does not conclude the contractor as to such fact and that hence a writ-of certiorari would not issue . against said municipal board.

That was a case decided by this Appellate Division and has very many features. in common with the case here decided. Following out the reasoning in that decision, if, after receiving notification by. the Commissioner of Labor that in his opinion the contractor, the relator here, was not complying with the provisions of the Labor Law, the board of water supply should cancel the contract, the action of the Commissioner of Labor would be no .protection whatever to the city of New York or its board of water supply upon' an action being brought by the .contractor for damages for cancellation of his contract. It cannot well be otherwise. . It cannot be that the determination of the Commissioner of Labor is conclusive in a matter of this kind, as he is not under the statute compelled to give the contractor any notice of his investigation; but if he finds such complaint to be well founded, that is, having the appearance of .truth and verity, then he is to present evidence of such noncompliance with the Labor Law to the municipal board,.having charge of such work. During all of this investigation the contractor has no opportunity for a hearing except through the courtesy of the Commissioner of Labor, and he cannot of necessity be divested of his property rights by a proceeding of which he might never hear, until the result was announced.

We,, therefore, conclude that the functions of the Commis ■ sioner of Labor here are advisory to the contracting municipality and that the contractor is not concluded by the result of the examination of the Commissioner of Labor. The rights of the parties here are not finally determined by the action of the Commissioner of Labor, and hence under the plain reading of subdivision 1 of section 2122 of the Code of Civil Procedure the writ of certiorari will not lie, as no provision is made in the Labor Law for a review by certiorari.

It follows that the order appealed from should be reversed, the writ quashed and stay vacated, with costs and disbursements to the Commissioner of Labor.

All concurred.

Final order reversed, with costs to the Commissioner of Labor, and writ quashed and stay vacated.  