« AnteriorContinuar »
(21 Op. 338). However, it is not clear whether any of the laborers referred to in your question would fall within the spirit and reason of this limitation, as stated by the Comptroller, and in the view I have taken it is not necessary now to decide the point.
I am of opinion, therefore, that the eight-hour law includes in its scope such of the laborers employed at the various customs ports as are actually engaged in manual labor, and that as to them it has not been repealed by the extension-of-hours act. Respectfully,
GEORGE W. WICKERSHAM.
The SECRETARY OF THE TREASURY.
The practical meaning of the word “ammunition ” as used in the
proviso in the fortification act of June 6, 1912, under the heading of “Armament of fortifications,” is much for the determination of the departments for which it is especially intended, and as this proviso is mainly for the guidance of the War and Navy Departments and those purchasing material for them, it may well be taken that the generally accepted meaning of the word in these
departments was the one intended. Ammunition means something different from materials for ammuni
tion. It is generally the assembled or practically complete prod
uct, substantially ready for use in firearms. The requirement of the law that a contractor for ammunition shall
have established an eight-hour workday for all of his employees engaged upon the work under contract is to be construed as pro
hibiting his working such employees more than eight hours a day. The Attorney General declines to express an opinion as to what, if
any, steps must be taken under the proviso by the contracting officer, and what is the status of claims presented for payment for labor and material furnished under a contract, in the event that a contractor who had actually announced an eight-hour workday before obtaining his contract should afterwards for any reason
revert to a longer workday, as the question is hypothetical. The eight-hour workday restriction of this proviso does not apply to purchases of ammunition made abroad.
DEPARTMENT OF JUSTICE,
July 1, 1912. SIR: I have the honor to comply with your request, under date of June 24, 1912, for an opinion as to the construc
tion of a portion of the fortification act of June 6, 1912 (37 Stat. 125), under the heading of “Armament of fortifications.” The provision referred to is as follows:
* Provided, That, except in time of war or when, in the judgment of the President, war is imminent, no part of this or of any other sum in this act for ammunition shall be expended for the purchase of any ammunition from any person, firm, or corporation which has not at the time of commencement of said work established an eighthour workday for all employees, laborers, and mechanics engaged or to be engaged in the work of manufacturing the ammunition named herein.”
The questions submitted are these:
“(1) What is to be considered as ammunition within the meaning of the proviso quoted ?
“(2) Is the requirement that a contractor for ammunition shall have established an eight-hour workday for all his employees engaged upon the work under a contract to be construed as prohibiting his working such employees more than eight hours per day?
“(3) What, if any, steps must be taken under this proviso by the contracting officer, and what is the status of claims presented for payment for labor and material furnished under a contract, in the event that a contractor who had actually announced an eight-hour workday before obtaining his contract should afterwards, for any reason, revert to a longer workday?
“(4) Does the limitation of the proviso apply to purchases of ammunition made abroad?”
1. Referring to the first question, it is probably impossible to state authoritatively just what is “ ammunition” within the meaning of this proviso. Yet the word has an ordinary and generally recognized meaning sufficient for practical purposes, and, by familiar rules of construction, this ordinary meaning must be taken to be the one intended, as no other is indicated.
Then, too, peculiarly in the War and Navy Departments, this word has a more definite and certain meaning; and as this proviso is mainly for the guidance of these depart
ments and those purchasing material for them, it may well be taken that the generally accepted meaning of the word in these departments was the one intended.
It is also certain that the word “ ammunition ” means something different from materials for ammunition. Thus, powder is ammunition; but the saltpeter and other materials of which it is composed are not. It is generally the assembled or practically completed product, substantially. ready for use in firearms, which is ammunition. The word, as here used, means something which is already ammunition and does not require some further process of manufacture to make it such or to fit it for use as ammunition. Shot, shells—whether loaded or not-shrapnel, bullets, powder, percussion caps, fulminating powder, cartridge cases, fuses, etc., intended for firearms, may well be called ammunition.
As illustrative of the difference referred to, the Chief of Ordnance very properly says:
This department purchases material for the manufacture of projectiles, cartridge cases, powder bags and fuzes, both in commercial shapes and partly completed states, and it is not certain whether or not such material is to be considered ammunition within the meaning of the proviso. For instance, the steel cases for shrapnel are sometimes purchased in the form of drawn cylinders, closed up at one end, tempered and ready for machining to finished dimensions; at other times, the material is procured in the form of bar steel, and the cases produced by turning and boring. Brass for cartridge cases and fuzes is purchased in sheet or bar form, and silk material for cartridge bags in rolls. The bar steel and brass and the sheet brass mentioned are commercial shapes, and, as far as the shape and quality are concerned, are suitable for many other purposes besides the manufacture of ammunition, while the drawn steel cases and the disks from which they are drawn are not. As a rule, this department does not purchase ordinary commercial material for any one specific purpose. It is procured for stock, and after procurement is issued for any and all purposes for which it is applicable. The at
tempt to separate commercial material so that part should be produced upon an eight-hour basis, while for the remainder no such limitation was required, would be most inconvenient for this department, and would obviously be most embarrassing for contractors, of whom the Government is only one of many customers. In that event, it is unlikely that a large manufacturing concern would make the radical change in its business methods that such a requirement would involve, and consequently the procurement of commercial material under the eight-hour restriction would be difficult and perhaps impossible.”
Such considerations have much weight in determining the answer to this question; and when Congress uses a word of such uncertain meaning as the one here considered, but which has in the department for which the provision is especially intended a more definite and certain meaning, it may well be taken that the latter was intended. So that the practical meaning of the word here used is much for the determination of the department for which it is especially intended. And as the Supreme Court has more than once said, such departmental construction will not be interfered with, except for cogent reasons.
2. Answering your second inquiry, I beg to advise you that, in my opinion, the requirement of the law that a contractor for ammunition shall have established an eighthour workday for all his employees engaged upon the work under contract is to be construed as prohibiting his working such employees more than eight hours a day. The provision in the fortification act of June 6, 1912, is similar to those in the naval appropriation act approved March 4, 1911, and in an opinion to the Secretary of the Navy of December 21, 1911 (29 Op. 279, 283–284), it was held that the eight-hour workday provisions in the earlier act prevented the working of employees, laborers and mechanics more than eight hours a day, under “overtime” regulations, in the construction of the vessels and their machinery therein referred to. The eight-hour restrictions in these later statutes are not merely “ directory,” as has been held in the case of the provision of section 3738 of the Revised
Statutes that eight hours shall constitute a day's work for all employees, workmen, and mechanics who may be employed by or on behalf of the Government of the United States (United States v. Martin, 94 U. S. 404; Laurey v. United States, 32 Ct. Cl. 266; 17 Op. 341; 19 id. 685). As said in the opinion of December 21, 1911 (29 Op. 284), where it was held that the purpose of the eight-hour provisions in the naval appropriation act was to apply to the construction of the vessels therein authorized the eight-hour law of August 1, 1892 (27 Stat. 340), which absolutely prohibits the working of laborers and mechanics on public works more than eight hours a day, except in case of extraordinary emergency:
“ 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.”
3. The third question is a hypothetical inquiry which, under well-settled rules, I must ask you to excuse me from answering (19 Op. 414; 20 Op. 288, 729; 21 Op. 106, 510).
4. The remaining question is whether the requirement of this proviso, that contracts for ammunition shall be made only with manufacturers who adopt the eight-hour rule, applies to such contracts made in foreign countries.
Taking the language of this proviso literally, there is no doubt that it applies equally wherever such contracts are made. But the literal language of an act does not always govern its construction. There is another important and often potent rule of construction which requires that every legislative act be construed with reference to its purpose and object, and it is not infrequent that the plain language of an act gives way under this rule.
There can be no doubt that the sole purpose of this proviso was the betterment of the conditions of our own people, and especially the laboring class. It was not at all