Contracts for the purchase of projectiles are not excepted from the operation of the eight-hour restriction, but only the work done in assembling the parts, treating the forging or casting, and machining the projectiles would be "work contemplated by the contract" unless the casting and other parts were manufactured solely and exclusively for the purpose of making the projectiles. Id.

Time of taking effect.--The act became effective Jan. 1, 1913, and hence only contracts thereafter made are required to contain the eight-hour restriction and the penalty stipulation provided. (1912) 29 Op. Atty. Gen. 505.

Insertion of provision.-Contracts excepted from the operation of the eighthour law need not contain the eight-hour stipulation.

When contracts are made by letters of proposal and acceptance, the latter should not contain the eight-hour stipulation. 30 Op. Atty. Gen. 31.

Insertion of provision in case of doubt.--Where the administrative officer in charge is in doubt as to whether a dredging contract involves the employment of laborers or mechanics, the wisest course is to insert in the contract the eight-hour restriction required by the act of June 19, 1912, leaving the status of any particular person as to whom the question is raised to be determined by the actual facts of his employment. (1912) 29 Op. Atty. Gen. 583.

Legality of compensating overtime one day by undertime another.-A schedule by which employees work 8 or 8 hours on 5 days in the week and 4 or 5 hours on Saturday, making a total of 48 hours in each week, is prohibited by the 8-hour workday restriction in said act of 1911. (1912) 29 Op. Atty. Gen. 371.

and

785. Penalty withheld for violation of the eight-hour law. every such contract shail stipulate a penalty for each violation of such provision in such contract of five dollars for each laborer or mechanic for every calendar day in which he shall be required or permitted to labor more than eight hours upon said work; and any officer or person designated as inspector of the work to be performed under any such contract, or to aid in enforcing the fulfillment thereof, shall, upon observation or investigation, forthwith report to the proper officer of the United States, or of any Territory, or of the District of Columbia, all violations of the provisions of this Act directed to be made in every such contract, together with the name of each laborer or mechanic who has been required or permitted to labor in violation of such stipulation and the day of such violation, and the amount of the penalties imposed according to the stipulation in any such contract shall be directed to be withheld for the use and benefit of the United States,, the District of Columbia, or the Territory contracting by the officer or person whose duty it shall be to approve the payment of the moneys due under such contract, whether the violation of the provisions of such contract is by the contractor or any subcontractor. Any contractor or subcontractor aggrieved by the withholding of any penalty as hereinbefore provided shall have the right within six months thereafter to appeal to the head of the department making the contract on behalf of the United States or the Territory, and in the case of a contract made by the District of Columbia to the Commissioners thereof, who shall have power to review the action imposing the penalty, and in all such appeals from such final order whereby a contractor or subcontractor may be aggrieved by the imposition of the penalty hereinbefore provided such contractor or subcontractor may within six months after decision by such head of a department or the Commissioners of the District of Columbia file a claim in the Court of Claims, which shall have jurisdiction to hear and decide the matter in like manner as in other cases before said court. Sec. 1, act of June 19, 1912 (37 Stat. 137).

That this Act shall become effective and be in force on and after January first, nineteen hundred and thirteen. Sec. 3, act of June 19, 1912 (37 Stat. 138).

Notes of Decisions

Report of violations.-Under the operation of the eight-hour law it will not be necessary to report the cases of any persons working more than eight hours a day upon any vessel engaged in dredging under Government contract, rrespective of

a

whether such persons are connected with the vessel as a part of its crew in its operation and management or are only employed thereon in the particular work of dredging and handling material. (1912) 29 Op. Atty. Gen. 583.

786. Exceptions from the eight-hour law. That nothing in this Act shall apply to contracts for transportation by land or water, or for the transmission of intelligence, or for the purchase of supplies by the Government, whether manufactured to conform to particular specifications or not, or for such materials or articles as may usually be bought in open market, except armor and armor plate, whether made to conform to particular specifications or not, or to the construction or repair of levees or revetments necessary for protection against floods or overflows on the navigable waters of the United States: Provided, That all classes of work which have been, are now, or may hereafter be performed by the Government shall, when done by contract, by individuals, firms, or corporations for or on behalf of the United States or any of the Territories or the District of Columbia, be performed in accordance with the terms and provisions of section one of this Act. The President, by Executive order, may waive the provisions and stipulations in this Act as to any specific contract or contracts during time of war or a time when war is imminent, and until January first, nineteen hundred and fifteen, as to any contract or contracts entered into in connection with the construction of the Isthmian Canal. No penalties shall be imposed for any violation of such provision in such contract due to any extraordinary events or conditions of manufacture, or to any emergency caused by fire, famine, or flood, by danger to life or to property, or by other extraordinary event or condition on account of which the President shall subsequently declare the violation to have been excusable. Nothing in this Act shall be construed to repeal or modify the Act entitled "An Act relating to the limitation of the hours of daily service of laborers and mechanics employed upon the public works of the United States and of the District of Columbia," being chapter three hundred and fifty-two of the laws of the Fifty-second Congress, approved August first, eighteen hundred and ninety-two, as modified by the Acts of Congress approved February twenty-seventh, nineteen hundred and six, and June thirtieth, nineteen hundred and six, or apply to contracts which have been or may be etered into under the provisions of appropriation Acts approved prior to the passage of this Act. Sec. 2, act of June 19, 1912 (37 Stat. 138).

Notes of Decisions.

The word "supplies" and the phrase "such materials or articles as may usually be bought in the open market" are practically synonymous and cover things which are had in store or stock. Whether a particular article or material falls within this exception to the eight-hour provision is generally a matter of administration. Op. Atty. Gen. 534; 80 Op. Atty. Gen. 49. Any article or material which can fairly be said to be included, in its ordinary condition, within the class of supplies or

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articles which may usually be bought in open market, is excepted from the operation of the act, no matter if it may differ in particulars from other members of the class by reason of the requirements of the specifications under which it is contracted for. For instance, paper, in its ordinary state, evidently belongs to the class of "supplies" and it is not withdrawn therefrom because manufactured according to the standard of quality fixed upon by the Joint Committee on Printing. 29 Ор.

481

Atty. Gen. 639. Building materials furnished by contractors or subcontractors are excepted. 30 Op. Atty. Gen. 133.

Looking at the act of June 19, 1912, it will be seen that sec. 1 lays down the rule which is to govern all contracts hereafter entered into by the United States, or on its behalf, and prescribes the penalty for a violation of its requirements and the mode of redress when the penalty is unjustly exacted, while sec. 2 states the exceptions to the rule and the qualifications and limitations thereof. The main exceptions are found in the first sentence of see. 2. But to these exceptions there is attached a proviso, the effect of which is to limit and narrow the exceptions. This proviso might be so construed as to nullify, in whole or in part, portion of the act to which it is attached. The purpose of the proviso, however, is merely to qualify or limit the part of the enactment to which it is attached and not to nullify or destroy it. The Attorney General therefore ruled that to carry out the intent of the proviso, the words, which have been, are now, or may hereafter be performed by the Government," can not be taken literally, but must be construed as referring to work which, up to the time of

the making of the contract therefor has ordinarily been performed by the Government, and not merely occasionally or to a limited extent, so that to let the same upon contract would indicate an intention to evade the eight-hour restriction of the act of Aug. 2, 1892. To illustrate: In view of your statement that "the War Department has from time to time engaged in the manufacture of clothing, tentage, and various equipments for the Army on its own account, using materials purchased for the purpose, but as a general rule the Government awards contracts for the manufacture of clothing, furnishing material therefor," I should say that, under the circumstances stated, the eighthour restriction need not be incorporated in contracts for such clothing. 29 Op. Atty. Gen. 511.

But as to smokeless powder, in view of the fact that the Government manufactures about 30 per cent of the amount in use, it could not be considered that the Government occasionally or to a limited extent had performed such work; so contracts for the purchase of this class of powder must fall under the eight-hour law. 29 Op. Atty. Gen. 546.

787. Suspension of the eight-hour law. That in case of national emergency the President is authorized to suspend provisions of law prohibiting more than eight hours labor in any one day of persons engaged upon work covered by contracts with the United States: Provided further, That the wages of persons employed upon such contracts shall be computed on a basic day rate of eight hours work, with overtime rates to be paid for at not less than time and one-half for all hours work in excess of eight hours. Act of Mar. 4, 1917 (39 Stat. 1192), making appropriations for the naval service.

788. Price proportioned to cost of manufacture by the Government.-That except as expressly otherwise authorized herein, no part of the sums appropriated by this Act shall be expended in the purchase from private manufacturers of any material at a price in excess of 25 per centum more than the cost of manufacturing such material by the Government, or, where such material is not or has not been manufactured by the Government, at a price in excess of 25 per centum more than the estimated cost of manufacture by the Government. Sec. 3, act of Mar. 3, 1921 (41 Stat. 1352), making appropriations for fortifications, etc.

789. Contracts with Government-owned establishments.-That all orders or contracts for the manufacture of material pertaining to approved projects heretofore or hereafter placed with Government-owned establishments shall be considered as obligations in the same manner as provided for similar orders placed with commercial manufacturers, and the appropriations shall remain available for the payment of the obligations so created as in the case of contracts or orders with commercial manufacturers. Act of June 15, 1920 (41 Stat. 975), making appropriations for the support of the Army.

790. Adjustment of war contracts of 1917-18.-That the Secretary of War be, and he is hereby, authorized to adjust, pay, or discharge any agreement, express or implied, upon a fair and equitable basis that has been entered into,

in good faith during the present emergency and prior to November twelfth, nineteen hundred and eighteen, by any officer or agent acting under his authority, direction, or instruction, or that of the President, with any person, firm, or corporation for the acquisition of lands, or the use thereof, or for damages resulting from notice by the Government of its intention to acquire or use said lands, or for the production, manufacture, sale, acquisition or control of equipment, materials or supplies, or for services, or for facilities, or other purposes connected with the prosecution of the war, when such agreement has been performed in whole or in part, or expenditures have been made or obligations incurred upon the faith of the same by any such person, firm, or corporation prior to November twelfth, nineteen hundred and eighteen, and such agreement has not been executed in the manner prescribed by law: Provided, That in no case shall any award either by the Secretary of War, or the Court of Claims include prospective or possible profits on any part of the contract beyond the goods and supplies delivered to and accepted by the United States and a reasonable remuneration for expenditures and obligations or liabilities necessarily incurred in performing or preparing to perform said contract or order: Provided further, That this Act shall not authorize payment to be made of any claim not presented before June thirtieth, nineteen hundred and nineteen: And provided further, That the Secretary of War shall report to Congress at the beginning of its next session following June thirtieth, nineteen hundred and nineteen, a detailed statement showing the nature, terms, and conditions of every such agreement and the payment or adjustment thereof: And provided further, That no settlement of any claim arising under any such agreement shall bar the United States Government through any of its duly authorized agencies, or any committee of Congress hereafter duly appointed, from the right of review of such settlement, nor the right of recovery of any money paid by the Government to any party under any settlement entered into, or payment made under the provisions of this Act, if the Government has been defrauded, and the right of recovery in all such cases shall exist against the executors, administrators, heirs, successors, and assigns, of any party or parties: And provided further, That nothing in this Act shall be construed to relieve any officer or agent of the United States from criminal prosecution under the provisions of any statute of the United States for any fraud or criminal conduct: And provided further, That this Act shall in no way relieve or excuse any officer or his agent from such criminal prosecution because of any irregularity or illegality in the manner of the execution of such agreement: And provided further, That in all proceedings hereunder witnesses may be compelled to attend, appear, and testify, and produce books, papers and letters, or other documents; and the claim that any such testimony or evidence may tend to criminate the person giving the same shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person in the trial of any criminal proceeding. Sec. 1, act of Mar. 2, 1919 (40 Stat. 1272-3).

To secure relief as provided above, unexpended portion of appropriations for the fiscal year 1918 are to remain available until June 30, 1921, as listed in the act of June 5, 1920 (41 Stat. 1026-1027).

The effect of the act of Mar. 2, 1919 (40 Stat. 1272), authorizing the adjustment of informally executed war contracts, is to give the Secretary of War original jurisdiction in the settlement of claims arising thereunder and to suspend temporarily further action by the accounting officers. Claims under informally executed war contracts which have been submitted to the auditor and settled prior to the passage of said act may not be transmitted to the Secretary of War for his further action, but it will be the duty of the

claimants to file their claims with the Secretary of War. Where payments under informally executed war contracts have been made and allowed in the accounts of disbursing officers they must be considered as closed so far as action by the statute must be made through the Secretary of War, and the prior payments will be for his consideration. If claims under informally executed war contracts coming within the provisions of said act should be filed with the auditor, that officer may transmit them to the War Department for consideration under said act and advise the claimants to that effect. The auditor is not authorized to withdraw settled accounts and transmit them as claims to the War Department. 25 Comp. Dec. 774.

791. Jurisdiction over claims under war contracts of 1917-1918.-That the Court of Claims is hereby given jurisdiction on petition of any individual, firm, company, or corporation referred to in Section 1 hereof, to find and award fair and just compensation in the cases specified in said Section in the event that such individual, firm, company or corporation shall not be willing to accept the adjustment, payment or compensation offered by the Secretary of War as hereinbefore provided, or in the event that the Secretary of War shall fail or refuse to offer a satisfactory adjustment, payment or compensation as provided for in said Section. Sec. 2, act of Mar. 2, 1919 (40 Stat. 1273).

792. Adjustment of agreemer.ts with foreign governments and persons.-That the Secretary of War, through such agency as he may designate or establish is empowered, upon such terms as he or it may determine to be in the interest of the United States, to make equitable and fair adjustments and agreements, upon the termination or in settlement or readjustment of agreements or arrangements entered into with any foreign government or governments or nationals thereof, prior to November twelfth, nineteen hundred and eighteen, for the furnishing to the American Expeditionary Forces or otherwise for War purposes of supplies, materials, facilities, services or the use of property, or for the furnishing of any thereof by the United States to any foreign government or governments, whether or not such agreements or arrangements have been entered into in accordance with applicable statutory provisions; and the other provisions of this Act shall not be applicable to such adjustments. Sec. 3, act of Mar. 2, 1919 (40 Stat. 1273).

793. Payment to a sub-contractor. That whenever, under the provisions of this Act, the Secretary of War shall make an award to any prime contractor with respect to any portion of his contract which he shall have sublet to any other person, firm, or corporation who has in good faith made expenditures, incurred obligations, rendered service, or furnished material, equipment, or supplies to such prime contractor, with the knowledge and approval of any agent of the Secretary of War duly authorized thereunto, before payment of said award the Secretary of War shall require such prime contractor to present satisfactory evidence of having paid said subcontractor or of the consent of said subcontractor to look for his compensation to said prime contractor only; and in the case of the failure of said prime contractor to present such evidence or such consent, the Secretary of War shall pay directly to said subcontractor the amount found to be due under said award; and in case of the insolvency of any prime contractor the subcontractor of said prime contractor shall have a lien upon the funds arising from said award prior and superior to the lien of any general creditor of said prime contractor. Sec. 4, act of Mar. 2, 1919 (40 Stat. 1273).

794. Adjustment of contracts for manganese, chrome, pyrites and tungsten.That the Secretary of the Interior be, and he hereby is, authorized to adjust, liquidate, and pay such net losses as have been suffered by any person, firm, or corporation, by reason of producing or preparing to produce, either manganese,