authorized as composed of hulls, outfits, and steam machinery, apparently making a distinction between "construction" and "machinery." The outfits and machinery of a vessel are not parts of the vessel, before installation, in the same sense as is a plate or other portion of the hull, and the language of the act undoubtedly justifies the inference that while the appropriation for the machinery of the battleship authorized was not to be expended until the person constructing the vessel had established an eighthour workday for its employees engaged in such construction, Congress did not regard the manufacture of the machinery as a part of the construction work. This view, however, is weakened by the fact that in the succeeding paragraph relating to torpedo boats and subsurface destroyers theretofore authorized, it is provided that no part of the appropriation therein made "shall be expended for the construction of any boat by any person, firm, or corporation which has not at the time of the commencement and during the construction of said vessels established an eight-hour workday for all employees, laborers, and mechanics engaged in doing the work for which this appropriation is made." The work so appropriated would, of course, include the manufacture of the machinery of the vessels authorized.

On the whole, I think that the intention of Congress, as it is to be gathered from the several provisions of the act, was that the person, firm, or corporation actually constructing the vessel should establish an eight-hour workday for all of its employees engaged upon any of the work authorized by the act, which, it is to be observed, is the complete construction of certain submarine torpedo boats and battleships, the latter exclusive of armor and armament. This view is in substantial accord with the opinion rendered by the Comptroller of the Treasury under date of August 3, 1911, in respect to the meaning of the provisions in question.

Your third question reads:

"Whether said eight-hour workday provision prevents the working of employees, laborers, and mechanics more than eight hours a day in the construction of said vessels

and their machinery under regulations governing what is generally known as 'overtime.'"

There is undoubtedly ground for the contention that the expression "eight-hour workday," as used in the act, does not necessarily prohibit contracts between an employer and his employees by which the latter may, for a consideration, work overtime. This argument receives additional force from the fact that in the present act Congress departed from the provisions of the naval appropriation act of June 24, 1910 (36 Stat. 605, 628; 28 Op. 358), which required the contract for the construction of vessels authorized therein to contain a clause requiring said vessels to be built in accordance with the provisions of the act of August 1, 1892 (27 Stat. 340), and the latter act inhibits laborers upon any of the public works of the United States from being required or permitted to work more than eight hours in any one calendar day. But the reason for this departure, I think, was not to make the eight-hour restriction any the less prohibitive, but to make the provisions in regard to an eight-hour day more effective by prohibiting the expenditure of the appropriations unless it was complied with.

The eight-hour provisions in the present statute were added by way of amendment to the naval appropriation bill after it was reported to the House, and the statements of the Members who propounded or were interested in them indicate that they were intended to apply the eighthour restriction of the act of August 1, 1892, to the construction of the vessels authorized or some of them (46 Cong. Rec. 3085, 3092, 4036). So the conference report on the bill stated that Senate amendments Nos. 56 and 57 "restrict the eight-hour law to the construction of battleships under the appropriation Construction and machinery,' and the House recedes" (ib. 4276).

The underlying purpose of all this legislation is to confer upon workmen the benefits, physical and moral, supposed to flow from a reduction of their labor to eight hours a day; not to increase their wages by enabling them to secure additional pay, if practicable, for working more

than eight hours a day. Such statutes are paternalistic in character, and it is not intended that their benefits should be nullified through contracts made by the beneficiaries.

Respectfully,

WILLIAM R. HARR,

Acting Attorney General.

THE SECRETARY OF THE NAVY.

CONSTRUCTION OF NAVAL VESSELS-MODIFICATION OF

CONTRACTS.

The Secretary of the Navy may insert in the contracts for vessels constructed under authority of the act of March 4, 1911 (36 Stat. 1265), a provision for making changes in said contracts and for determining the amount of increased or diminished compensation arising therefrom, whether such compensation be of the nature of liquidated or unliquidated damages.

DEPARTMENT OF JUSTICE,
December 21, 1911.

SIR: I have the honor to acknowledge the receipt of your letter of the 8th instant, in which you request my opinion"as to whether, if the contracts for the construction of the vessels authorized by the act of March 4, 1911, contain a provision for changes in the plans and specifications and in the contracts themselves and for payment on account thereof in a manner prescribed, the amounts claimed by contractors as a result of such changes would be of the nature of unliquidated damages, and whether this department may legally embody in such proposed contracts a provision for making changes in the plans and specifications and the contracts themselves and for determining the increased or decreased compensation allowable for such changes and make payment on account thereof accordingly."

In the case of United States v. Corliss Steam Engine Company (91 U. S. 321, 322, 323) the Supreme Court, in sustaining a settlement made by the Secretary of the Navy of a claim for damages, both liquidated and unliquidated, said:

66* * * The power of the President in such cases is, of course, limited by the legislation of Congress. That

legislation existing, the discharge of the duty devolving upon the Secretary necessarily requires him to enter into numerous contracts for the public service; and the power to suspend work contracted for, whether in the construction, armament, or equipment of vessels of war, when from any cause the public interest requires such suspension, must necessarily rest with him. As, in making the original contracts, he must agree upon the compensation to be made for their entire performance, it would seem, that, when those contracts are suspended by him, he must be equally authorized to agree upon the compensation for their partial performance. Contracts for the armament and equipment of vessels of war may, and generally do, require numerous modifications in the progress of the work, where that work requires years for its completion. With the improvements constantly made in shipbuilding and steam machinery and in arms, some parts originally contracted for may have to be abandoned, and other parts substituted; and it would be of serious detriment to the public service if the power of the head of the Navy Department did not extend to providing for all such possible contingencies by modification or suspension of the contracts, and settlement with the contractors."

In United States v. Cramp & Sons Co. (206 U. S. 118) the Supreme Court held that a release executed by the contractor, in pursuance of a clause in the original contract, covered both liquidated and unliquidated damages.

The opinions of this office have been substantially to the same effect. (18 Op. 101; 21 ib. 207; 28 ib. 121.)

The authorities show that the powers of the Secretary of the Navy, in regard to making, modifying, and suspendin contracts for the construction of vessels of war are such as are adapted to the necessities of the situation and include the right to provide in such contracts for any contingencies which may be expected to arise. Where no provisions of law limit them they are fully as great as the powers of an individual under the same circumstances. They are certainly ample enough to justify such an ordinary, if not necessary, provision as that which you desire to insert.

It may be true that the heads of executive departments have no power to settle claims for unliquidated damages (Wm. Cramp & Sons v. United States, 216 U. S. 494), but the rule has never, so far as I am aware, been extended beyond the settlement of claims arising out of a breach of the contract. It does not follow that the head of a department may not insert in the contract itself a provision for making changes therein and for determining the amount of increased or diminished compensation arising therefrom, whether such compensation be of the nature of liquidated or of unliquidated damages.

I have the honor, therefore, to advise you that, in my opinion, the provision which you desire to insert in the contracts for vessels constructed under the authority of the act of March 4, 1911 (36 Stat. 1265), would be entirely legal.

Respectfully,

WILLIAM R. HARR,
Acting Attorney General.

THE SECRETARY OF THE NAVY.

SELECTION OF SURGEON GENERAL OF THE PUBLIC HEALTH AND MARINE-HOSPITAL SERVICE.

The President in selecting a Surgeon General of the Public Health and Marine-Hospital Service is not restricted by law to the list of commissioned officers in the Medical Corps of that service.

DEPARTMENT OF JUSTICE,

December 21, 1911.

SIR: I have the honor to acknowledge the receipt of your letter of the 28th ultimo, requesting an opinion on the question whether the law restricts the President, in selecting a Surgeon General of the Public Health and MarineHospital Service, to the list of commissioned officers in the Medical Corps of that service, or leaves him free to select a Surgeon General from other sources.

The answer to your inquiry appears to depend solely on the proper construction of "An act to regulate appointments in the Marine-Hospital Service of the United States,"