make up and certify that such penalty was imposed by reason of an error in fact.

Nothing in this act shall apply to contracts for transportation by land or water, nor shall the provisions and stipulations in this act provided for affect so much of any contract as is to be performed by way of transportation, or for such materials as may usually be bought in open market, whether made to conform to particular specifications or not. The proper officer on behalf of the United States, any Territory, or the District of Columbia may waive the provisions and stipulations in this act provided for as to contracts for military or naval works or supplies during time of war or a time when war is imminent. No penalties shall be exacted for violations of such provisions due to extraordinary emergency caused by fire or flood, or due to danger to life or loss to property. Nothing in this act shall be construed to repeal or modify chapter three hundred and fiftytwo of the laws of the Fifty-second Congress, approved August first, eighteen hundred and ninety-two, or as an attempt to abridge the pardoning power of the Executive.

[H. R. 15651, Sixtieth Congress, first session.]

IN THE HOUSE OF REPRESENTATIVES.

JANUARY 29, 1908.-Mr. GARDNER, of New Jersey, introduced the following bill; which was referred to the Committee on Labor and ordered to be printed.

A BILL Limiting the hours of daily service of laborers and mechanics employed upon work done for the United States, or for any Territory, or for the District of Columbia, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every contract hereafter made to which the United States, any Territory, or the District of Columbia is a party, and every such contract made for or on behalf of the United States, or any Territory, or said District, which may require or involve the employment of laborers or mechanics shall contain a provision that no laborer or mechanic doing any part of the work contemplated by the contract, in the employ of the contractor or any subcontractor contracting for any part of said work contemplated, shall be required or permitted to work more than eight hours in any one calendar day upon such work; and every such contract shall 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 such 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 in this Act directed to be made in every such contract, together with the names of each laborer or mechanic violating 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 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 to appeal to the head of the Department making the contract, or 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 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 appeal to 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. 2. That nothing in this Act shall apply to contracts for transportation by land or water, or for the transmission of intelligence, or for such materials or articles as may usually be bought in open market, whether made to conform to particular specifications or not, or for the purchase of supplies by the Government, whether manufactured to conform to particular specifications or not. The proper officer on behalf of the United States, any Territory, or the District of Columbia, may waive the provisions and stipulations in this Act during time of war or a time when war is imminent. No penalties shall be imposed for any violation of such provision in such contract due to any emergency caused by fire, famine, or flood, by danger to life or to property, or by other extraordinary event or condition. Nothing in this Act shall be construed to repeal or modify chapter three hundred and fifty-two of the laws of the Fiftysecond Congress, approved August first, eighteen hundred and ninety-two.

I also insert the result desired by the friends of this legislation, as shown by the statement made by Mr. Gompers on page 55 of the report of hearings, Fifty-ninth Congress, 1906:

[From a statement made by Mr. Gompers, found in Senate Document 141, the second session of the Fifty-seventh Congress, made on June 3, 1902.]

Mr. Gompers, having this matter before him and pressed upon his attention, said: "We are endeavoring to secure the limitation of a day's work to eight hours. Where Government work enters into the operation of a plant, either in part or in whole, we expect that eight hours shall constitute a day's work by law and the limitation of a day's work."

Mr. PAYSON. That is what I wanted you to say.

Mr. GOMPERS. I am very glad, because I wanted to say it myself, and I want to emphasize it, if possible.

And in 1904, two years later, the same matter being under consideration by Mr. Gompers, he used this language:

"We have been asked how far does this bill go? How far do you want it to go? If we are candid, and we desire to be, as to how far, we would answer until it reached every man, woman, and child who works in the United States. And I trust that statement will be broad enough and comprehensive enough to satisfy the opponents of the bill."

I also insert the remarks made by Senator McComas, on page 110 of arguments before the Committee on Education and Labor, United States Senate, second session, Fifty-eighth Congress, and a formal statement made by Senator McComas, found on page 52 of the same hearings:

Mr. CALLAWAY. I will ask you what this bill does apply to, then?

The CHAIRMAN. I think it would apply, so far as the three years of hearings before us are concerned, to Government vessels, to these large marine engines, probably to large trains in the navy-yards, perhaps to heavy 30-ton mortar carriages. Beyond that I have not, in three years' hearings, anything in mind to which I could say this bill

really would apply. I do not mean to say that there are not other things, but they are

not numerous.

Mr. CALLAWAY. Why would it not be a good idea, then, to specify those things and make it clear?

The CHAIRMAN. That would be unconstitutional, in my judgment. Mr. CALLAWAY. Well, if that is all it is, it is unconstitutional just the you hit it straight or go around the tree for it; is it not?

The CHAIRMAN. No.

same, whether

Mr. CALLAWAY. I can not see the difference if it has the same effect.
The CHAIRMAN. A general law and a special law are upon an entirely different basis.
Mr. CALLAWAY. Are you sure the Supreme Court will construe this bill as you do?
The CHAIRMAN. I can not be positively sure of what anybody else will do.

The CHAIRMAN. I want to state here that I have been considering this measure for several years, and I am amazed to find the misapprehension the manufacturers and business men of this country have as to the scope of the bill. The infinite variety of things that people come here and say are covered by this bill, and the confusion and misapprehension that exist in regard to it amazes me, after giving it careful and patient reflection and study year after year. It does seem to me this misapprehension is being industriously spread by the gentlemen who are seriously opposed to this bill upon other grounds, in order that those who are not at all affected by it may be made anxious about it. I suppose that is to be expected. The language of the bill does not mean what has been claimed here. I think that intelligent lawyers, who differ about many things, have agreed and do agree with the statement I have just made.

Mr. DOWNEY. I appreciate that, Mr. Chairman, thoroughly. It is not for the contractor or for the Department to decide the fine points involved in this bill. I believe that, ultimately, the result will be as you say. But as the contractor can not decide it, and as the chief of the Department can not decide it, the contractor must go through all the machinery that you suggest, and finally to the Court of Claims, It makes it so difficult and so expensive that unless the amount involved is very large, the contractor simply can not afford to take advantage of the machinery.

The CHAIRMAN. I want to say that 95 per cent of the things contracted for and purchased by the Government are contracted for and purchased from materials, articles, and supplies that are excepted by the provisions of this bill. That is my judgment about the matter.

Mr. DOWNEY. That will have to be finally decided by the courts.

I also insert observations of Mr. Chairman Gardner, found on page 33 of the hearings before the House Committee on Labor, Fifty-ninth Congress:

The CHAIRMAN. While you are on your feet there, there is a matter I would like to mention. The McComas bill, the Hitt bill, so called, is spoken of in connection with the old bill known as the "Gardner bill," and you have said. I think, once before, that they all embody the same principle, and they are substantially the same. Do you mean to make that a matter of record as the position of yourself and your organization? It is claimed, I think, by the shipbuilding people that the report of the Committee on Labor of the Senate has had the effect of eliminating about everything but the shipyards. It was stated here the other day by Judge Payson, I think, that the Secretary of Commerce and Labor, or some person in authority there, says that from the bill under consideration last year, to wit, the bill as reported in the Senate by Senator McComas, about 95 per cent of the effect of the present bill was eliminated.

I call your attention to the fact that among the things which were in the original bill in the Committee on Education and Labor was a provision to give the right of appeal to the contractor to the Court of Claims, and conferring upon that court the jurisdiction to hear and determine, which it had not before. The old bill excepted from its provisions such materials as might be usually bought in the open market, whether manufactured to conform to particular specifications or not. That was amended in the Senate by inserting after "materials" the word "articles," making it "materials or articles." the term "articles" there covering materials which would be eliminated from the bill. Again, an amendment was put in over there in the following words: "Or for the purchase of supplies by the Government, whether manufactured to conform to particular specifications or not." That is another broad elimination from the operation of the bill of a large part of the Government supplies. I do not know how far it would go. The allegation has been made against the bill as amended there that there was nothing left in it but the river and harbor work and the shipyards. I do not know whether the two phrases taken together-"or articles" and "supplies, whether manufactured to conform to particular specifications or not —are not almost broad enough to include a ship.

I also insert remark made by Senator McComas, found on pages 61 and 62, arguments before the Senate committee, second session Fifty-eighth Congress:

The CHAIRMAN. If you can buy that in open market, and you want stone according to certain specifications that is, stone of a certain kind or of a certain size-this bill would not affect it. Unlike the act of 1892, under which you are now working on public buildings, this bill excepts such matters from its operation.

I desire to say in this connection that with this opinion of Senator McComas, the chairman of this committee, Mr. Gardner has agreed, in statements before the committee.

I also insert extracts from the report of the Secretary of Commerce and Labor on House bill 4064, made January 27, 1905, and found on pages 16, 17, 18, and 19:

OPINION OF THE SOLICITOR OF THE DEPARTMENT AS TO THE SCOPE OF THE BILL.

DEPARTMENT OF COMMERCE AND LABOR,

OFFICE OF THE SOLICITOR,
Washington, June 22, 1904.

The honorable the SECRETARY OF COMMERCE AND LABOR. SIR: I have the honor to acknowledge the receipt of a letter of Acting Secretary Murray, under date of the 14th instant, requesting my opinion on the scope of House bill No. 4064, entitled "A bill limiting the hours of daily service of laborers and mechanics employed upon work done for the United States, or for any Territory, or for the District of Columbia, and for other purposes.'

A careful study of the terms of this bill and of the statements and arguments made upon the several hearings before the committees to which it was referred, shows that it affects only those contracts which contemplate labor to be performed after the execution of the contract and in fulfillment of it. Labor performed upon or in connection with the subject-matter of the contract, prior to the execution of the contract, is not affected by the provisions of this bill; hence contracts made by the Government for the purchase of articles in existence do not come within the scope of the bill. But all contracts which contemplate the performance of labor after their execution, except in so far as the bill expressly excludes them, are affected by the provisions of the bill, whether the labor be expressly required by the terms of the contract or be necessarily involved; hence, subject to the express exceptions made in the bill, the following two general classes of contracts fall within the scope of the bill:

First, contracts solely for the performance of labor; secondly, contracts for the sale and delivery of materials or articles, where, from the terms of the contract, or the nature of the article, or the situation of the parties, or the circumstances of the case, it is contemplated, at the time of the execution of the contract, that labor will be performed upon or in connection with the material or article, in the fulfillment of the contract. Although contracts for transportation and contracts for the transmission of intelligence are contracts for labor, they are expressly excepted from the eight-hour provisions.

In addition to these, certain contracts which belong to the second class above mentioned are excepted from the operation of the bill. They are "contracts for such materials or articles as may usually be bought in open market, whether made to conform to particular specifications or not, and contracts for the purchase of supplies by the Government, whether manufactured to conform to particular specifications or not." Both of these exceptions, in my opinion, are expressed in language which is vague. In case this bill becomes a law there will necessarily be a variety of interpretations made by executive officers, by contractors, by laborers, and by the courts until a clear and final determination has been made by the highest court of the land. My own opinion is that “such materials or articles as may usually be bought in open market' embrace all articles and materials, a stock or quantity of which is usually kept on hand for sale to the public, by some person making it his business to sell such articles. By virtue of the words "whether made to conform to particular specifications or not,' it seems reasonably clear that if an article or material may usually be bought in the open market a contract for such article or material is not governed by the provisions of the bill limiting work to eight hours a day, even although the article or material, by the provisions of the contract, is to be made according to particular specifications.

Articles and materials, therefore, even although not of standard sizes, qualities, patterns, or types, would probably be within the exception and be excluded from the eight-hour provision if the same general kind of article in other sizes, qualities, patterns, or types was purchasable in the open market. There may

be a point where variation from standard sizes, qualities, patterns, or types is so great as to make an article separate and distinct from any class usually found in the open market. Whether this is so must be determined in each case as it arises. It is impossible in advance to make a classification of the innumerable articles purchased by the Government and say which are excepted and which are not excepted by this bill. Purchasing officers of the various departments not only have the best means of knowing what are the articles purchased by their respective departments, but also whether such articles are usually purchasable in open market, and whether or not they depart to so great an extent from articles usually kept in stock for sale that the articles contracted for may be said not to be purchasable in open market. The chairmen and members of the committees of the Senate and of the House to which the bill was referred, the advocates and the opponents of its passage, upon the various hearings, expressed conflicting views as to the proper construction of the language embodying this exception in its application to numerous articles which were mentioned. It may be proper here to say that the chairman of the Senate committee to which the bill was referred. Senator McComas, who was the author of the language of the exceptions under consideration, declared that in his opinion 95 per cent of the articles purchased by the Government were excepted from the 8-hour provision of the bill. Personally I can lay down no more specific rule than that heretofore stated by me, leaving its application to those having to do with the cases as they arise.

The fourth exception in the bill is "contracts for the purchase of supplies by the Government, whether manufactured according to particular specifications or not. The word "supplies" is one which is used with a great deal of latitude. Its definitions vary from the comprehensive ones given in Webster's Dictionary and in the Standard Dictionary, viz, "that which supplies a want," that which is or can be supplied; available aggregate of things needed or demanded,” down through various limitations to the extremely narrow meanings given to it as used in appropriation bills where legislative provision for one class of articles has caused a general provision for "supplies" to be held not to include articles mentioned in other places in the bill which would, however, ordinarily fall within the term. This uncertainty in the use of the word "supplies" like the vagueness of the expression "such materials as may usually be bought in open market," in my opinion, makes it vitally necessary that the bill should be amended and more specific language used. Uncertainty as to the scope of these exceptions will doubtless result in contractors increasing the amounts of their bids or refraining from bidding. If they bid under the impression that the contract which is sought by them is within the exception, it may thereafter be determined that it is not within the exception, and, in such event, great loss would result to them. The definitions of the word "supplies,' given in the dictionaries which I have just cited, should not be adopted in the construction of this bill. To do so would be to nullify its provisions in toto. Furthermore, those definitions, in my opinion, give the primary rather than the ordinary or even the legal meaning of the word. On the other hand, I think there is no justification for giving the word the narrow meaning frequently given to it in the various appropriation bills. It should be given that meaning which it has long enjoyed in the general statutes of the Government relating to supplies. The word "supplies," as used in section 3709 of the Revised Statutes, has been construed by Second Comptroller Maynard and by Comptroller Tracewell (5 Comp. Dec., 65) as having reference to "those things which the well-known needs of the public service will from time to time require in its different branches for its successful and efficient administration." Without considering how accurate that definition was as the word is used in section 3709, I am of the opinion that the word "supplies," as used in the bill under consideration, relates to articles which are provided to meet well known, customary, and usual needs of the public service, as distinguished from exceptional or special needs. To a very large extent the idea of consumption or of destruction by use as distinguished from permanency of duration, and the consequent necessity of frequent renewal and of annual provision, is involved. Supplies ordinarily are incidentals. Furthermore, the word includes personalty but not realty. Public buildings, public works, public vessels, and all unusual purchases would not be within the meaning of the word "supplies." This last statement is not to be construed as implying that all other articles not mentioned in it constitute supplies. Doubtless many other articles than those mentioned would not be supplies, but it would be impossible to enumerate them in advance.

I return the paper submitted to me inclosed in the letter of the Acting Secretary of the 14th instant.

Respectfully,

W. M. COLLIER, Solicitor.