I think, would be very doubtful. I think it would be doubtful about his being successfully able to compete for any business at all that would come up. Then our only other resource would be to look for more desirable business or go out of business entirely. Mr. EMERY. Then what, in your opinion, would be the general effect on Government contracts? Mr. GRAHAM. It would be demoralizing on Government contractors. Mr. EMERY. You think that there would be less and less competition for Government contracts? Mr. GRAHAM. Most assuredly. Mr. PAYSON. One thing further I would like to get your judgment upon. I do not know that it has ever been touched upon in these hearings. Suppose that it should happen by reason of these contingencies that you have named and the fear in assuming risks such as you have named, that the Government was driven to attempt to do its own work in a way; would not the Government, in that condition of affairs, be in exactly the same condition as to subcontractors and inability to get contracts from them to do the work for the Government that you, as a contractor, would be under in the same line?. Mr. GRAHAM. Naturally so. I want to give you an illustration of supplies. While this does not cover supplies, I want to show you how, when you throw restrictions around a contract, you eliminate the contractors. Mr. EMERY. This covers supplies that can not be bought in the open market. Mr. GRAHAM. This particular supply I speak of does apply. The Navy Department, about a year ago, asked for bids on 270,000 incandescent lamps, or thereabouts. They had a specification that no manufacturer could make lamps in accordance with. When bids were opened we were the only bidders for those lamps, regardless of the number of manufacturers there were in the country, and dealers. We handed in the only bid. We had qualified our bid to furnish lamps such as could be made. There was no competition, because they had thrown around it restrictions that the lamp manufacturers would not consent to. Whether we got more or not than the lamps were worth, they did not have time to readvertise, and they gave contracts for the lamps in accordance with our proposal. (Thereupon, at 3.20 o'clock, the committee adjourned until tomorrow, Thursday, February 20, 1908, at 2 o'clock, p. m.) THURSDAY, February 20, 1908. The committee met at 2 o'clock p. m., Hon. John J. Gardner (chairman) in the chair. STATEMENT OF MR. J. A. EMERY. Mr. EMERY. Mr. Chairman and gentlemen of the committee, in the course of the presentation of our case against this bill we submitted to you yesterday some evidence of a practical character, that of business men of long experience and established reputation, regarding the effect upon their own contracts with the Government of the measure before this committee for consideration. We shall submit a considerable amount of further evidence upon this subject of the same practical character, and I may say for the benefit of the committee that our ability to supply evidence of this character from gentlemen with the very deepest financial interest in the future stipulations to be contained in Government contracts is limited only by the patience of the committee. The amount involved in Government contracts annually is of so great a character, affects so many industries, and is of such deep concern to so many actual, as well as prospective, contractors, that it is of the deepest importance to them that they should be protected against an improper assumption of risks or against the passage of bills of dubious and uncertain meaning, to say nothing of restrictions upon their liberty of an unconstitutional nature. We apprehend, in addressing this committee, that it is not the desire of the committee to enact doubtful or vague or uncertain legislation. The personnel of the committee and the responsibility that rests upon its members assure us that such a conclusion is most reasonable. But it is not only important, gentlemen, that the end which the law seeks to attain shall be in itself a proper one, but that it shall be attained by a proper legislative method. The ambiguities that creep into legislative enactments were aptly and cleverly described in the story Daniel O'Connell told of the effort of the Roscommon County council to provide by resolution for the construction of a jail, expressing its intent in three resolutions, as follows: 1. Resolved, That the county of Roscommon do construct a jail. 2. That the new jail be constructed out of the materials of which the old jail is composed. 3. That the prisoners confined in the old jail remain there until the completion of the new jail. The bill before the committee for consideration contains some objectionable features, not merely in the estimation of the opponents of the bill, but in the estimation of the law officer of the Government to whom it was submitted by the Department of Commerce and Labor, or to whom a bill practically identical with the present bill was submitted by the honorable Secretary of the Department of Commerce and Labor, which opinion is contained in the report by the Hon. Victor H. Metcalf, Secretary of the Department of Commerce and Labor, on H. R. 4064, being the eight-hour bill, Document No. 413. I ask, Mr. Chairman, that the opinion of the Solicitor, beginning on page 16 and concluding on page 19, be made a part of my remarks for the purpose of reference. OPINION OF THE SOLICITOR OF THE DEPARTMENT AS TO THE SCOPE OF THE BILL. DEPARTMENT OF COMMERCE AND LABOR, The SECRETARY OF COMMERCE AND LAROR: 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 eight-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. 66 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 papers submitted to me inclosed in the letter of the Acting Secretary of the 14th instant. Respectfully, W. M. COLLIER, Solicitor. The same objection to the verbiage of the bill which was made by the Solicitor-General to bill No. 4064 can be made with equal force against the existing bill, as all the dubious phrases therein complained of as uncertain or vague remain in the present bill. The Solicitor-General declares particularly that such expressions as "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 for the Government, whether manufactured to conform to particular specifications or not,' were, in his opinion, exceedingly vague. As the opinion is contained in the record, there is no necessity for dealing with it in detail, except to again assert, Mr. Chairman, that the defects there pointed out are still in the bill, and that if the law officers of the Government themselves consider that the language of the bill is vague, dubious, and uncertain, can it be the policy of this committee to recommend for passage an act which makes the risk of a contractor most uncertain, and which may apply to a large class of articles offered under Government contract, to which the contractor is uncertain whether such stipulations in the contract apply or not? And yet any contract, if this act becomes a law, which affects the articles in question and which does not contain the stipulations provided for in this act, must of necessity be an invalid contract, and the contractor for the Government must find himself facing one of two contingencies, either that he supply the Government the articles in question without such stipulations in his contract and take the chances under complaint, or under investigation by some officer of the Government discovering that he has not complied with the law, and that the disbursing officer of the Government may not pay him because of the invalid nature of the contract into which he has entered. Or the contractor may proceed under the stipulation of this bill, |