1918.]

Opinion, per CRANE, J

[225 N. Y.]

tion and inspection to have been made immediately or forthwith, and that the court had no power to delay it for six weeks or until the certificate of election has been issued.

If a discretion were given to the Special Term to fix the time of the examination, this court cannot review the order unless there be an abuse of power. (Knickerbocker Trust Co. v. Oneonta, C. & R. S. R. R. Co., 197 N. Y. 391; People ex rel. Flynn v. Woods, 218 N. Y. 124.)

The provisions of section 374 under which this application was made are:

Any candidate shall be entitled as of right to an examination in person or by authorized agents of any ballots upon which his name lawfully appeared as that of a candidate; but the court shall prescribe such conditions as of notice to other candidates or otherwise as it shall deem necessary and proper.'

As to notice to the candidate, an order was presented by the applicant and granted requiring Alfred E. Smith to show cause why Charles S. Whitman should not examine the ballots cast at the general election and why an order should not be made providing for the time when and the manner in which such examination should be had.

Leaving aside all other considerations, the court upon this application could have taken into consideration the fact that the soldier vote had not yet been canvassed. Article XV of the Election Law, as amended by chapter 298 of the Laws of 1918, makes full provision for taking the vote of the soldiers and sailors of this state serving the nation in various parts of the country. After these votes have been received in the various commands, where the soldiers or sailors are stationed, it is provided that they shall be forwarded in envelopes to the secretary of state at Albany who, in turn upon proper notice, forwards them to the boards of election in each county, according to the residence of the voter. It is then

[225 N. Y.]

Opinion, per CRANE, J.

[Dec.,

enacted by subdivision 6 of section 513 that the board of inspectors in each election district, where the soldier and sailor vote is to be canvassed, shall convene for that purpose at ten o'clock in the forenoon on the sixth Tuesday after election. This year the sixth Tuesday falls on the seventeenth of December.

Considering the number of soldiers and sailors that New York state has furnished in this war, many of whom are now at the various encampments, it is impossible to say what the effect of this vote will have upon the result of the gubernatorial election. It is stated in the record on this appeal that the present margin between the opposing candidates is about 7,000 votes. It may be that when the soldier and sailor vote is counted, the purpose for which this order has been obtained may no longer exist.

The result, in any event, may be so conclusive as to avoid the necessity or desire for a further examination of any ballots. Whether this be so or not, the fact remains that the judge, to whom this application was made, could very justly have considered these matters, and have determined that it was proper, under the circumstances, that the examination should not take place until after the canvass of all votes had been completed.

Furthermore, the appellant fails to disclose any injustice that will be done him or any rights which will be lost or impaired by waiting until the time appointed.

It follows, therefore, that the order appealed from must be affirmed, without costs.

HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN and MCLAUGHLIN, JJ., concur.

Order affirmed.

1918.]

Statement of case.

[225 N. Y.]

THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN H. PRICE, Respondent, v. SHEFFIELD FARMS-SLAWSONDECKER COMPANY, Appellant.

Labor Law - provision prohibiting employment of children under the age of fourteen years employer equally liable whether child is employed by himself or his agents must employ reasonable supervision to prevent violation of statute — legislature had power to make violation of statute a criminal offense and provide for punishment by fine.

1. The Labor Law (Cons. Laws, ch. 31), standing by itself, is not a criminal statute, but a separate statute (Penal Law, § 1275) supplements its mandates and prohibitions by attaching penal consequences. These do not of necessity affect the meaning that the Labor Law would have without them; the scope of the duty is one problem; the extent to which the breach may be visited with punishment another.

2. Section 162 of the Labor Law prohibiting the employment in or in connection with mercantile establishments of children under the age of fourteen years is directed primarily against the employer, and only secondarily against others as they may aid and abet him. He must neither create nor suffer in his business the prohibited conditions. He may not escape the duty by delegating it to others. He breaks the command of the statute if he employs the child himself and he breaks it equally if the child is employed by agents to whom he has delegated his own power to prevent. And what is true of employment is true of the sufferance of employment. The statute makes no distinction between sufferance and permission.

3. Any act or omission that will charge an employer with a breach of section 162 of the Labor Law becomes by force of section 1275 of the Penal Law a breach of that statute as well. There was power in the Legislature to impose this stringent penalty and to punish offenders by fines moderate in amount, but in sustaining the power to fine this court is not to be understood as sustaining to a like length the power to imprison. The statute is not void as a whole though some of its penalties may be excessive. The good is to be severed from the bad and the valid penalties remain.

4. Where upon the trial of an information charging a violation of section 162 of the Labor Law there is some evidence of the defendant's negligence in failing for six months to discover and prevent the employment of a child under the age of fourteen years, the omission

[225 N. Y.]

Points of counsel.

[Dec.,

to discover and prevent was a sufferance of the work and for the resulting violation of the statute a fine was properly imposed. People ex rel. Price v. Sheffield Farms, etc., Co., 180 App. Div. 615, affirmed.

(Argued November 18, 1918; decided December 10, 1918.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 14, 1917, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting defendant of a violation of section 162 of the Labor Law.

The facts, so far as material, are stated in the opinion.

George W. Alger for appellant. There was no evidence before the court to justify a conviction, there being an utter absence of proof that defendant employed or permitted this child to work for it. (People v. Taylor, 192 N. Y. 398; Gregory v. United States, 17 Blatch. 325; Lancaster v. Commonwealth, 149 Ky. 443; Loosey v. Orser, 4 Bosw. 391; Chicago v. Sterns, 105 Ill. 555; People v. Werner, 174 N. Y. 132; Rose v. Balfe, 223 N. Y. 481; Reilly v. Connable, 214 N. Y. 586; Collins v. Butler, 179 N. Y. 156; O'Brien v. Stern Bros., 223 N. Y. 290; Labatt Master & Servant [2d ed.], § 2252; Driscoll v. Scanlon, 165 Mass. 348.) The construction of the statute as one imposing upon the defendant as the owner and proprietor of a business the absolute duty, which it is bound to perform at its peril, of preventing the employment by its employees of children, without its knowledge or consent, is unjustified and erroneous. (T. H. Dept. v. McDevitt, 215 N. Y. 160; People v. Werner, 174 N. Y. 132; People v. West, 106 N. Y. 283; People v. D'Antonio, 150 App. Div. 109; People v. Roby, 52 Mich. 577.)

Edward Swann, District Attorney (Robert S. Johnstone of counsel), for respondent. The facts proved establish the defendant's liability under the statute. (American

1918.]

Opinion, per CARDOZO, J.

[225 N. Y.]

Car Co. v. Armentraut, 214 Ill. 509; Inland Steel Co. v. Yedinak, 172 Ind. 423; Purtell v. P. & R. C. & I. Co., 256 Ill. 110; Ten. House Dept. v. McDevitt, 215 N. Y. 160; Comm. v. N. Y. C. & H. R. R. R. Co., 202 Mass. 394; People v. Werner, 174 N. Y. 132; C., B. & Q. Ry. v. United States, 220 U. S. 559; Ford v. State, 37 Atl. Rep. 172; Reg. v. Tolson, 23 Q. B. Div. 168; 3 Greenl. on Ev. § 21; People v. Taylor, 192 N. Y. 398.) The legislature may impose upon a person or corporation engaged in a business an absolute liability without reference to the common-law doctrine of respondeat superior or other common-law doctrines, and without fault or negligence. (New York Central R. R. Co. v. White, 243 U. S. 188; Bowersock v. Smith, 243 U. S. 29; Hawkins v. Bleakly, 243 U. S. 210; Matter of Heitz v. Ruppert, 218 N. Y. 148.)

* *. *

CARDOZO, J. The defendant, a corporation, has been convicted of violating section 162 of the Labor Law (Consol. Laws, chap. 31). That section provides that "no child under the age of fourteen years shall be employed or permitted to work in or in connection with any mercantile establishment specified in the preceding section." Violation of the Labor Law is a misdemeanor, and is punishable, if a first offense, by a fine of not less than twenty nor more than fifty dollars (Penal Law, sec. 1275).] Heavier fines and even imprisonment may follow a repetition of the offense (Penal Law, sec. 1275). In this case the fine imposed was $20. The question is whether there is any evidence of guilt. [The defendant is engaged in the sale of milk. It employs one hundred and twenty-five drivers to make deliveries to its customers. In February, 1917, one of the state's inspectors found a boy of thirteen years assisting in a driver's work. The driver, one Schmidt, employed the boy and paid him. Schmidt's purpose