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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."
It is clear that this proviso is susceptible of a construction which will nullify, in whole or in part, the portion of the act to which it is attached and whose general provisions it is meant merely to limit. If the words in the proviso,
which have been, are now, or may hereafter be performed by the Government,” be taken literally, then, since practically every conceivable class of work, and certainly every class of work mentioned in the exceptions at the beginning of section 2, either has been in the past or may be in the future performed by the Government, the proviso would simply put back under the ban of section 1 the very contracts which had just been excepted from that section. For example, section 2 provides that nothing in the act shall apply to the construction or repair of levees. Clearly the construction or repair of levees either has been or may hereafter be performed by the Government. If, then, the construction now under consideration be given to the proviso, the result will be that the construction of levees will be taken from the provisions of the act in one breath, only to be restored the next.
The purpose of a proviso is, as stated above, merely to qualify or limit the enactment to which it is attached. It can never be taken to nullify or destroy it. It is necessary, therefore, to find a construction of this proviso which, while giving it due effect as a limitation, will yet not make it destructive of the other provisions of the act.
It must be remembered at the outset that the act of August 1, 1892 (27 Stat. 340), provided :
“ That the service and employment of all laborers and mechanics who are now or may hereafter be employed by the Government of the United States,
is hereby limited and restricted to eight hours in any one calendar
and that this act is expressly continued in force by the act of June 19, 1912. The effect of the act of August 1, 1892, was to make the Government in all respects an eight-houra-day employer as regards laborers and mechanics. (20 Op. 459; Op. June 28, 1912, 29 Op. 481.) Bearing this in mind, the intent of Congress in the act of June 19, 1912, may be developed thus: It first established a general rule which would require every contract made by the Government involving the employment of labor to be carried out on an eight-hour basis. It then at once occurred to Congress, and indeed it had been pointed out by the President in his message on the subject, that there were certain classes of contracts where the application of an eight-hour law was impracticable, either by reason of peculiar conditions of nature, as contracts for transmission of intelligence, or for transportation by land or water, or by reason of continuous, ever-present emergency, as in construction of levees, or, as in the case of supplies and articles ordinarily bought in the open market, because wholly impracticable from the standpoint of the Government and the contractor alike. Accordingly Congress, by section 2, excepted these cases from the operation of the all-embracing provision of section 1. Up to this point there is no difficulty in interpreting the meaning of the act. But the language of the proviso read in connection with the earlier part of section 2 presents a more difficult question of construction.
The debates in the House over these provisions indicate an intention on the part of the framers of the act to prevent by means of this proviso the use by officials of the Government of the exceptions in section 2 to evade the requirements of the act of August 1, 1892, by causing work of the general nature ordinarily performed directly by the Government itself to be done by contract or under it.
In the bill as originally introduced the exception only embraced “all classes of work now being performed by the Government.” (48 Cong. Rec., Dec. 14, 1911, p. 337.) The committee amended this by changing the words “ being” to read “which have been, are now, or may hereafter be.” (48 Cong. Rec., Dec. 14, 1911, pp. 337–338.)
Debating this proviso, the ambiguity of which was pointed out by Mr. Norris and Mr. Mann, Representative Hughes, who was especially advocating the passage of the bill, said the intent of the proviso was “ to take from out
66 now 66*
of the exception all classes of work which have been, are now, or may hereafter be performed by the Government.” (48 Cong. Rec., Dec. 18, 1911, pp. 469, 470.) He acknowledged that he was in doubt as to the meaning of the words “which have been," yet he contended that the words in the proviso described work of such character that it showed that Congress “knew just what the Government was making for itself, and therefore they limited the proviso to things that were now being made by the Government.” He said (ib. 470):
this proviso means to say to the Government that work that already falls under an eight-hour classification and is now being done by the Government under an eight-hour law shall be done under the eight-hour law by contract; work which the Government is now engaged upon and activities of various kinds, such as building guns, constructing battleships, manufacturing powder, and doing river and harbor work, doing it all under the eight-hour law. Now, if the Government attempts to have that work done by a private individual or a contractor, under the provisions of this act, we insist that it shall be done under those conditions, too." Mr. Mann then said:
* The forepart of section 2, having provided for the purchase of supplies by the Government and stipulated what it is to be required to perform under the act, then the gentleman wants to provide, as I understand that if the Government undertakes in its work to purchase supplies not in the open market, but by contract, it must be on the eight-hour basis.
“In other words, it is not proposed that where the Government does work now under the eight-hour law it shall not 1 evade that by entering into a contract with a private contractor?
“Mr. HUGHES. Yes; that is the extent to which I want to go.”
Assuming this to be the intent of the proviso, and it being essential to give it a construction which shall accord with the other provisions of the act, the words “ which have
1 In order to make sense, “not” should be omitted.
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 eight-hour restriction of the act of August 1, 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 that as a general rule the Government awards contracts for the manufacture of clothing, furnishing material therefor," I should say that, under the circumstances stated, the eight-hour restriction need not be incorporated in contracts for such clothing.
What has been said, with the statement that, in my opinion, it is immaterial whether the contractor supplies both materials and labor or labor only, appears to answer your first and second questions.
Your third question is whether the provision regarding the employment of labor should be inserted in contracts now to be awarded for supplies for the entire current
The first section of the act provides that “every contract hereafter made * shall contain” an eight-hour work-day restriction, as well as a penalty stipulation for a violation thereof. Section 3 provides that “this act shall become effective and be in force on and after January 1, 1913.”
It appears that section 3 was added in the Senate without debate (48 Cong. Rec., 7418, May 24, 1912), so that this provision must be understood as having been accepted by that body as meaning just what it said. When the bill was returned to the House, Mr. Wilson, of Pennsylvania, who was in charge thereof, referring to this amendment, said that “it changes the date upon which the act shall go into effect to January 1 next, the presumption being that that is for the purpose of allowing those who are making bids to have an opportunity to make their establishments conform to the changed conditions.” (48 Cong. Rec., 8152, June 5, 1912.)
Mr. Wilson's statement suggests that it may have been his understanding that notwithstanding the provision postponing the taking effect of the act, contracts entered into subsequent to the passage of the act and prior to January 1, 1913, should contain the eight-hour restriction and penalty stipulation mentioned, the operation of the same only being postponed until the later date. So the provision of section 2 of the act that “ nothing in this act shall be construed to * * 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," seems to imply that the act, notwithstanding the provision of section 3, was still to apply to contracts made after its passage. But these inferences are too vague, in my opinion, to justify a disregard of the plain meaning and effect of section 3. That section expressly fixes the time when the act shall become effective and be in force; and as the only requirement of the act is that contracts thereafter made shall contain the eight-hour restriction and penalty stipulation, when Congress said that the act should become effective and be in force on the later date, it can only be understood to have been meant that until that date the mandate of the act in the respect mentioned should be regarded as innocu
In other words, in view of the provision of section 3 that “this act shall become effective and be in force on and after January 1, 1913,” the words “every contract hereafter made” in section 1 must necessarily mean that every contract made after the act becomes effective shall contain the provisions mentioned. To hold that the mandate of the act as to the insertion in contracts of the eight-hour restriction and penalty stipulation became operative on its passage despite section 3, but that such contractual provisions were not to become operative until January 1, 1913, is to write a new act. I therefore answer your third question in the negative. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF WAR.