CONTRACTS intentionally, and is a sufficient allegation ely implies that the act was done the intent to support the information of after Bridge to The verdict. C. S. e Co. (D. C. 1898), 88 Fed. 891. v. San Francisco section Case of each laborer or mechanic so required to work more than eight hours, and A criminal information against a contractor for violation of such provision must set out the names of, or otherwise identify, the persons so alleged to have been unlawfully employed, that the accused may meet the charge intelligently, and be able to plead a conviction or acquittal in bar of any subsequent prosecution. U. S. v. Breakwater Co. (D. C. 1909), 174 Fed. 78. makes it a separate offense Burden to show emergency.-The rule which places the burden of proof upon the party who, under the circumstances of the ease, is best able to make the proof, requires that, in a prosecution for violation of the law, the burden of showing the alleged offense was justified by an extraordinary emergency shall be upon the one inter [$749 posing such a defense, who from the necessities of the case is possessed of special knowledge with reference thereto. U. S. v. Sheridan-Kirk Contract Co. (D. C. 1906), 149 Fed. 809. Jurisdiction. In a prosecution of Government contractors for "unlawfully, intentionally, and knowingly requiring or permitting a laborer or mechanic, employed on public work," to wit, a dam, to work more than eight hours in a single calendar day, the offense is not the working overtime, but is on the part of the contractor in requiring and permitting such overtime work to be done; and hence, where the work is directed, required, or permitted from the Ohio side of the river, the Federal court for the Southern District of Ohio has jurisdiction over the offense, notwithstanding some or all of the work may have been performed south of the line which divides the States of Ohio and Kentucky. U. S. v. Sheridan-Kirk Contract Co. (D. C. 1906), 149 Fed. 809. 749. Same; provision in contracts.-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; Sec. 1, act of June 19, 1912 (37 Stat. 137), U. S. C. 40: 324. * This was the first section of an act entitled "An act relating to the limitation of the hours of daily service of laborers and mechanics employed upon a public work of the United States and of the District of Columbia, and of all persons employed in constructing, maintaining, or improving a river or harbor of the United States and of the District of Columbia." Sec. 2 of the act is set forth post, 750. Notes of Decisions Application of section.-The restriction of the act applies to contracts for the purchase of supplies by the Government where the work incident to the manufacture thereof has ordinarily been performed by the Government up to the time of the making of the contract therefor, and not merely occasionally or to a limited extent, and it is immaterial whether the contractor furnishes both materials and labor or labor only. (1912) 29 Op. Atty. Gen. 505. The 8-hour workday restriction of the act applies only to work contemplated by the contract. The words "work contemplated by the contract" include the work directly and proximately in view in the contract as specifically appropriated to and destined for the Government use. (1912) 29 Op. Atty. Gen. 534. The 8-hour workday restriction of the act of June 19, 1912 (37 Stat. 137), known as the 8-hour law, applies to the employment of labor on the work contemplated by the contract, and it is immaterial by whom the labor is employed, whether by a contractor, subcontractor, or sub-subcontractor. (1913) 30 Op. Atty. Gen. 31. The word "supplies," and the phrase "such materials or articles as may usually be bought in open market," are practically synonymous, and cover things which are had in store or stock. Whether a par ticular article or material falls within this exception to the 8-hour provision is generally a matter of administration. Id. Smokeless powder is manufactured ordinarily by the Government, and hence contracts for the purchase thereof are subject to the 8-hour restriction. Id. Contracts for the purchase of projectiles are not excepted from the operation of the 8-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. The provisions of this section do not apply to work to be performed by alien laborers and mechanics upon public works of the United States within the territorial limits of a foreign country. (1924) 34 Op. Atty. Gen. 257. Time of taking effect.-This act became effective Jan. 1, 1913, and hence only contracts thereafter made are required to contain the 8-hour restriction and the pen alty stipulation provided. Insertion of (1912) 29 Op. provision.-Contracts excepted from the operation of the 8-hour law need not contain the 8-hour stipulation. When contracts are made by letters of proposal and acceptance, the latter should not contain the 8-hour stipulation. (1913) 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 8-hour restriction re quired by the act of June 19, 1912, leaving the status of any particular person as to whom the question is raised to be deter mined 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. 750. Same; exceptions.-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 twentyseventh, nineteen hundred and six, and June thirtieth, nineteen hundred and six, or apply to contracts which have been or may be entered 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); U. S. C. 40: 325. As to the second sentence of the text, beginning "The President," etc., this appears to be superseded by 751, post. 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 8-hour provision is generally a matter of administration. 29 Op. Atty. Gen. 534; 30 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 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 Op. 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 sec. 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 8-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 cir cumstances stated, the 8-hour 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 8-hour law. 29 Op. Atty. Gen. 546. 751. Same; suspension during emergency. 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 8 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; U. S. C. 40: 326. Notes of Decisions Overtime pay in general.-Where a fire at Nitro, W. Va., operated, during his term man with seven years' experience in a of service, by a contractor and agent of city fire department enters the service of the fire department of the explosive plant the United States, and later by another contractor, and still later by the Ordnance Department, at a much increased salary and with full knowledge that his employment would be "under the 24-hour system," and accepts his compensation without protest or complaint to any one in authority that his pay was less than it should be, and makes no claim for compensation for more than eight hours' service until the filing of this suit, more than six months later, he can not maintain an action for compensation for overtime under the 8-hour laws. Swisher v. U. S. (1922), 57 Ct. Cl. 123. Firemen serving at United States explosives plants during the war with Germany were not "laborers" or "mechanics" within the meaning of the 8-hour laws. Id. CHAPTER 13 FEDERAL COURTS Supreme Court; reports, distribution, 752. Defendants in criminal cases, 754. Habeas corpus: Power of courts, 757. Power of judges, 758. Habeas corpus-Continued. Conditions for issue of writ, 759. Allowance and direction of writ, 761. Form of return, 763. Body to be produced, 764. Date for hearing, 765. Hearing and disposition, 766. 752. Supreme Court; reports, distribution. The reports provided for in section 225 shall be printed, bound, and issued within eight months after said decisions have been rendered by the Supreme Court, and within said period the Attorney General shall distribute copies of said Supreme Court Reports as fol* the Secretary War, each assistant secretary of each * the Judge Advocate General of the the Military Acad* to the law * to lows: of the executive departments, * * each one copy; Army; the Chief of Finance, War Department; * * my at West Point, New York; brary of the Judge Advocate General of the Army, two copies; the Secretary of War for the use of the proper courts and officers of the Philippine Islands, seven copies; to the Secretary of War for military headquarters which now exercise or may hereafter exercise general court-martial jurisdiction, such number, not to exceed in time of peace twenty-five copies, as the Secretary of War may from time to time specify; * * Provided, That This Act shall not be construed so as to require that reports and digests printed prior to the date of approval of this Act shall be furnished to the Secretary of War for military headquarters. Sec. 227, act of Mar. 3, 1911 (36 Stat. 1154), as amended by sec. 3, act of July 1, 1922 (42 Stat. 816), as amended by act of June 12, 1926 (44 Stat. 736), as amended by act of Jan. 29, 1929 (45 Stat. 1143); C. S. C. 28: 334. * 758. District courts; jurisdiction. The district courts shall have original jurisdiction as follows: ** Twentieth. Concurrent with the Court of Claims, of all claims not exceeding en thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or pon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for damages. whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Gov ernment in said court: # * ** Par. 20, sec. 24, Judicial Code, act of Mar. 3, 1911 (36 Stat. 1093); U. S. C. 28: 41. This section was repealed by sec. 1200, act of Feb. 26, 1926 (44 Stat. 125), but reenacted without change by sec. 1122 (c) of the same act (44 Stat. 121). |