66 laborers or mechanics, either by those contracting with the Government or by subcontractors. It seems clear, therefore, that the subcontract here in question is subject. to the act, unless it falls within that provision of section 2 which takes out of the operation of the act contracts 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." * * * This exception has been considered in opinions heretofore rendered (29 Op. 534; 30 Op. 24, 31, 49, 133, 211). In the enforcement of the exception, however, difficulties continue to arise, which a careful review of these opinions ieads me to believe are due principally to a lack of definition of the terms of the exception. The act was intended to extend the policy of the eighthour day for laborers and mechanics employed on Government work-a policy which for many years had been in force as to works of construction carried on by the Government, and which had been repeatedly recognized and declared by acts of Congress (29 Op. 371, 372, 373; also 284, 492). Section 1 provides in effect that the eight-hour day shall obtain under every contract made for or on behalf of the United States, requiring the employment of laborers or mechanics, whether such employment is by contractors or subcontractors. It was recognized, however, that the necessities of the case required some exceptions (29 Op. 505, 534). These were made by section 2; among them the exception here in question. The language of the exception, "contracts for such materials or articles as may usually be bought in open market,” necessarily implies that there are materials or articles which may not usually be bought in the open market. The expression thus divides contracts for articles and materials into two classes-one class subject to the act, and the other excepted from its operation; the basis of classification being whether or not the materials or articles contracted for are of the kind that "may usually be bought in open market." The question then becomes: What is the test as to whether materials or articles may usually be bought in open market? Some materials or articles are usually "ordered" for specific purposes and "made" according to particular specifications. Other materials or articles are manufactured in stock or standard forms and supplied to the trade generally. They are usually found in stock, and are "bought" from producers or dealers. In common parlance, they are "bought " and "sold"" in the open market," or "in the general market," as distinguished from materials and articles of the other class which are not usually "bought in open market," but are usually ordered to be made. This use of the phrases "open market" and "general market" is illustrated in the following cases: Referring to a notice to retailers printed on packages of a patented article attempting to fix a minimum retail selling price, it is said in Bauer v. O'Donnell, 229 U. S. 1, 16: "The packages were sold with as full and complete title as any article could have when sold in open market, excepting only the attempt to limit the sale or use when sold for not less than one dollar." In Schloss v. Josephs, 98 Minn. 442, 444, discussing the instructions given the jury in a case involving a contract for certain suits of clothing to be made to order, this language is used: "It does not conclusively appear from the evidence that the clothing ordered in this case was of such standard and uniform varieties as could be disposed of in the open market, and if there was any dispute about it the court did not commit error in taking the opinion of the jury upon the question of whether the contract amounted to a sale of clothing such as ordinarily made by manufacturers and wholesale houses and purchased and dealt in by retail dealers, or whether the contract was for the manufacture of clothing of such peculiar pattern and materials as would not in the general course of trade have been otherwise manufactured." In Goddard v. Binney, 115 Mass. 450, 454, 15 Am. Rep. 112, construing the seventeenth section of the statute of frauds, this passage is found: "The effect of these decisions we understand to be this, namely, that a contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute applies. But on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market, the case is not within the statute." The meaning and purpose of the phrase," whether made to conform to particular specifications or not," remains to be considered. Contracts for materials and articles are commonly classified as "contracts for labor and materials" and " "contracts of sale," the distinction turning upon the nature of the contract, that is, whether or not in the particular instance the contract is for the manufacture of some material or article "to conform to particular specifications." (For authorities see 24 Amer. and Eng. Ency. of Law, 2d ed. p. 1028.) This distinction governs the application of the seventeenth section of the Statute of Frauds, the language of which, "contracts for the sale of goods, wares, and merchandise," is generally held to exclude contracts for materials or articles of any kind to be made to special order. (Goddard v. Binney, supra; Meincke v. Falk, 55 Wis. 427; 42 Am. Rep. 722; in re Gies' Estate, 160 Mich. 502; 19 Amer. and Eng. Ann. Cas. 1288; Forsyth v. Mann, 68 Vt. 116; 32 L. R. A. 788; 20 Cyc. 241, 242.) In the provision here in question, however, Congress did not adopt this classification, but, as we have seen, made the operation of the exception depend upon the kind of materials or articles contracted for, that is, whether they are of a kind which may usually be bought in open market. The words, "whether made to conform to particular specifications or not," were added, I think, for the purpose of emphasizing this, and to make it perfectly clear that the test should not be the nature of the contract. To illustrate, take a contract for iron nails. Assuming that iron nails are articles of a kind which may usually be bought in open market, such a contract would none the less fall within the exception because it called for iron nails to be made according to particular specifications. In the light of the foregoing, it is my opinion that the exception must be held to embrace materials or articles of the kind which are usually manufactured in standard forms and which producers or dealers usually offer for sale in the course of their business, as distinguished from materials and articles of the kind which are usually made to order, or manufactured in a particular manner, shape or condition according to the specifications of the person for whom they are made. The application of this construction—that is, the determination in particular cases of whether the articles are of a kind which are usually manufactured and offered for sale in standard forms, etc., or are of a kind which are usually made to order-obviously involves a consideration of trade conditions and of other questions of fact, and, therefore, is primarily an administrative function to be discharged by the several departments in which the cases arise. This was recognized in the opinion of October 3, 1912, where it was said (29 Op. 534, 543): "Generally speaking, whether a particular article or material falls within the above exception in section 2 is a matter of administration, and the decision of an administrative officer thereon would certainly not be lightly overruled." As regards the opinion of August 1, 1913 (30 Op. 211), to which you refer, I think that, instead of himself deciding that the specific article there in question was within the exception, the Attorney General should have defined the meaning of the exception and then left it to the Treasury Department to apply the definition to that particular case. It follows that if you find that marble cut and finished for use in building construction is a material or article which is usually manufactured in standard forms for the general market and which producers or dealers usually offer for sale in the course of their business, the subcontract should be excepted from the operation of the statute. If, on the other hand, you find that it is not such a material or article, but a material or article usually made to order or manufactured in a particular manner, shape or condition, according to the specifications of the person for whom made, then the subcontract is subject to the operation of the act, and you should compel compliance with its provisions on the part of the subcontractor. Respectfully, To the SECRETARY OF WAR. T. W. GREGORY. RIO GRANDE BOUNDARY. Under a provision of the Diplomatic and Consular appropriation act of March 4, 1915 (38 Stat. 1120), the Secretary of State may direct an investigation as to any or all tributaries within the United States, whether or not flood streams, which may contribute to the flood conditions in the Rio Grande affecting the boundary line between the United States and Mexico. Congress has plenary power to authorize an investigation of nonnavigable streams within a State whenever, in the judgment of Congress, such action is necessary for the preservation of the navigability of its waterways, or for the maintenance with certainty and without fluctuation of the international boundary lines of the United States. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge receipt of your letter of March 17, and also your letter of March 29, 1915, inclosing a memorandum prepared by the Acting Solicitor for the State Department, with reference to certain provisions of the Diplomatic and Consular appropriation acts of June 30, 1914, and March 4, 1915. The questions upon which you have requested my opinion, as stated by you, are as follows: "1. Whether or not the Department of State or the Secretary of State is duly authorized to make this 'investiga83152°- -VOL 30-13- -24 |