Imágenes de páginas

laborers, workmen, and mechanics now employed, or who may hereafter be employed, by or on behalf of the Government of the United States.” This statute proved ineffective because it was held to be not mandatory but merely directory (United States v. Martin, 94 U. S. 400), and also not to apply to laborers employed by independent contractors even though engaged on Government work (United States v. Driscoll, 96 U. S. 421).

The present act was passed avowedly to meet these two decisions and, as expressed in the reports of committees (H. Rept. 1267, 52d. Cong., 1st. sess.) — “to secure a practical enforcement of the purpose intended to be secured by the act of 1868” (p. 6). and to extend it* in plain terms to laborers and mechanics in the employ of contractors and subcontractors on Government works." (P. 6.) The report further says

that the purpose of Federal legislation on this subject is to lend the influence and example of this Government to the authorities of States and municipalities, having a broader scope of jurisdiction in which to make the principle applicable: * * * If we wish by the example of this Government to make the application of the principle universal, we must ourselves extend it to the limit of our jurisdiction.” To the same effect are the report in the Senate (S. Rept. 948, 52d Cong., 1st sess.), and the speech of Mr. Tarnsey, who had charge of the bill in the House of Representatives (23d Cong. Rec. 5723, and Appendix, 451) and the speech of Mr. Buchanan, another member of the committee (23d Cong. Rec. 5726) and of Mr. Dungan (23 Cong. Rec. 5733).

Furthermore, in the bill as originally drawn, a comma was inserted between “subcontractors” and “ upon.” This would have made the clause “ upon any of the public works of the United States” relate to laborers employed

66 *

[ocr errors]
[ocr errors]


by the United States, or by the District of Columbia, as well as to those employed by independent contractors. Its omission in the final text, changing, as it does, the entire grammatical relation of these clauses, is significant, and exactly accords with the evident purpose of the later act, as it appears from the above legislative history.

It is plain from this history that the reference to“ public works

was not intended as a limitation restricting the scope of the original act, but merely as a part of an extension of that act to laborers employed by independent contractors on such works.

There remains the question whether the act of March 15, 1898 (30 Stat. 277, 316), commonly known as the extension of hours act, has repealed the eight-hour law so far as concerns the laborers referred to in your question. That law provides as follows:

SEC. 7. Hereafter it shall be the duty of the heads of the several executive departments,

to require of all clerks and other employees, of whatever grade or class, in their respective Departments, not less than seven hours · of labor each day * *: Provided, That the heads of the Departments may, by special order, stating the reason, further extend the hours of any clerk or employee in their Departments, respectively; but in case of an extension it shall be without additional compensation. * *

“ SEC. 11. That all laws or parts of laws inconsistent with this act are repealed."

Whether this act, or its predecessor act of March 3, 1893 (27 Stat. 715) operated to repeal the eight-hour law to any extent whatever is a question upon which there might be some doubt, although the congressional history of both these later acts indicates that Congress recognized their inconsistency with the eight-hour law in so far as they cover the same field and intended to that extent to repeal that law (24 Cong. Rec. 1399, 1400, 1401, 1402, 2483 ; 31 Cong. Rec. 1252, 1253, 2638). And so it was held by the Comptroller of the Treasury (4 Comp. Dec. 578, 582).

However, it is not necessary to determine this question

because, in my opinion, the extension-of-hours act did not apply to laborers employed outside the Departments at the seat of Government, and therefore did not repeal the eighthour law so far as concerned the laborers referred to in your question.

The terms“ executive departments” and “ departments," as ordinarily used in the acts of Congress, are terms of art, whose meaning is confined to offices and bureaus located at the seat of government, together with the socalled field forces, which in theory are only temporarily absent from Washington.

This was the ruling of Mr. Attorney General Harmon (21 Op. 338), construing the extension-of-hours act of March 3, 1893 (27 Stat. 715), which was the predecessor to the present act of 1898. The amendments made by the later act were slight and do not in any way affect the point in question, so that this opinion is properly to be considered as authority on the precise question. The opinion held (at p. 340) that the extension-of-hours act was confined, so far as related to the Treasury Department, to the clerks and employees at Washington.

The Comptroller of the Treasury has twice made the same ruling in reference to the present extension-of-hours act, holding that it did not apply to local inspectors of steam vessels under the Treasury Department (7 Comp. Dec. 125, 126) or to immigration inspectors in Porto Rico (14 Comp. Dec. 413).

These rulings are in accord with the long line of authorities holding, for instance, that phrases such as “ clerks and employees in the departments” do not cover employees in customhouses and subtreasury, post offices, etc. (26 Op. 254); collectors of internal revenue, postmasters, and consuls (15 Op. 262, 267); employees under the Reclamation Service (13 Comp. Dec. 733; 11 Comp. Dec. 558, 595); employees of the Hydrographic Survey (10 Comp. Dec. 770); outside civil-service employees (3 Comp. Dec. 127); outside Weather Bureau employees (1 Comp. Dec. 559); and assessors of internal revenue (even covering the District of Columbia) (Pearson's Case, 9 Ct. Cls. 152-153).

This conclusion with reference to this particular act is confirmed by the paragraphs of the act succeeding the one above quoted, which are as follows:

Hereafter it shall be the duty of the head of each executive department to require monthly reports to be made to him as to the condition of the public business in the sereral bureaus or offices of his department at Washington; and in each case where such reports disclose that the public business is in arrears, the head of the department in which such arrears exist shall require, as provided herein, an extension of the hours of service to such clerks or employees as may be necessary to bring up such arrears of public business" (30 Stat. 317).

Here it is distinctly indicated that Congress was concerned only with the offices at Washington. The fact appears to be, as these passages indicate, that the purpose of the legislation was to clear up arrears of work in the Departments proper at Washington, and the predecessor act was so explained by Mr. Cannon, in reporting the bill (14 Cong. Rec. 2317), where he stated that the Departments had asked large increases in the force of clerks to finish arrears in business and the Committee on Appropriations advised an increase of hours instead.

On several occasions when Congress has desired to apply certain of the provisions of the extension-of-hours act to employees outside of Washington it has been done by special act, which, of course, it would not have done had it intended these employees to be covered by the general bill. Thus, in 1890, desiring to give certain employees of the customs service outside of Washington certain of the privileges provided by the extension-of-hours act of 1883 (22 Stat. 563), it did so by the following special act:

“ That all officers and employees of the customs service of the Government who receive a per diem compensation shall be entitled to receive the same leave of absence as is provided for clerks and employees in the several executive Departments at. Washington, District of Columbia, by chapter one hundred and twenty-eight, section four, of the United States Statutes at Large, volume twenty-two, pages


five hundred and sixty-three and five hundred and sixtyfour, approved March third, anno Domini eighteen hundred and eighty-three.

SEC. 2. That the Secretary of the Treasury shall make all rules and regulations necessary to carry the provisions of this act into effect (26 Stat. 362).”

In this language Congress itself specifically described the act of 1883 (which was one of the earlier forms of the present hours-of-service act) as applying to the clerks and employees “ at Washington.”

Similarly, Congress has passed special acts giving the leave-of-absence privilege to letter carriers (23 Stat. 60), to clerks and employees in the first and second class post offices (26 Stat. 648) and to railway postal clerks (30 Stat. 964), none of which enactments would have been necessary if clerks outside of Washington had been covered by the general hours-of-service law.

Finally, it is very significant that after Attorney General Harmon had rendered his opinion above cited, construing the extension-of-hours act of 1893 as not applicable outside of Washington, Congress reenacted that statute in its present form, which made no change in any respect material to the point decided. Under the familiar rule, therefore, it is to be assumed that the construction placed upon the act by the Attorney General accorded with the views of Congress. (United States v. Hermanos, 209 U. S. 337.)

For these reasons I concur with this opinion of Mr. Attorney General Harmon rather than with the opposite opinion of Mr. Attorney General Griggs (22 Op. 77), to whose attention Mr. Harmon's opinion and its acceptance by Congress was apparently not called.

There is also a question whether the extension-of-hours act, even if applicable outside of Washington, would cover the laborers referred to in your question. The Comptroller of the Treasury has held that it does not apply to laborers whose wages are not fixed by law or regulation (4 Comp. Dec. 578, 583). That opinion, so far as I know, has never been overruled or questioned, and it is consistent with the reasoning in the opinion of Mr. Attorney General Harmon

« AnteriorContinuar »