imposition of the penalty hereinbefore provided such contractor or subcontractor may within six months after decision by such head of a department or the Commissioners of the District of Columbia file a claim in the Court of Claims, which shall have jurisdiction to hear and decide the matter in like manner as in other cases before said court. Sec. 1, act of June 19, 1912 (37 Stat. 137); 40 U. S. C. 324.

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 Fiftysecond Congress, approved August first, eighteen hundred and ninety-two, as modified by the Acts of Congress approved February twenty-seventh, 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); 40 U. S. C. 325.

That this Act shall become effective and be in force on and after January first, nineteen hundred and thirteen. Sec. 3, act of June 19, 1912 (37 Stat. 138).

The provision in section 2 of the text beginning "The President," etc., appears to be superseded by 745, post.

Notes of Decisions

Articles usually bought in open market, Contracts for the purchase of the articles used in printing and binding production are excepted from the operation of the eight hour law of June 19, 1912 (37 Stat. 137), being such articles as are usually bought in open market and in some instances being also classed as supplies for the Government. (1913) 30 Op. Atty. Gen. 24.

The provisions of the eight-hour law of June 19, 1912 (37 Stat. 137), do not apply to

the labor involved in the dressing of marble and stone for public buildings, such labor not being performed at the sites of the buildings themselves, since marble and stone clearly belong in their nature to articles or materials ordinarily to be bought in the open market, although they may be dressed and finished in a manner peculiar to the needs of a particular building. (1913) 30 Op. Atty. Gen. 211.

A subcontractor furnishing cut and finished marble for the Lincoln Memorial should be

excepted from the operation of the eight-hour | standard forms for the general market and law of June 19, 1912 (37 Stat. 137), if it be which producers or dealers usually offer for found that such marble is a material or sale in the course of their business. (1915) article which is usually manufactured in 30 Op. Atty. Gen. 364. 744. Contracts; Eight-hour law (penal).-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 or the District of Columbia, or by any contractor or subcontractor, upon a public work of the United States or of the District of Columbia, and of all persons who are now, or may hereafter be, employed by the Government of the United States or the District of Columbia, or any contractor or subcontractor, to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, is hereby limited and restricted to eight hours in any one calendar day; and it shall be unlawful for any officer of the United States Government or of the District of Columbia, or any such contractor or subcontractor whose duty it shall be to employ, direct, or control the services of such laborers or mechanics or of such persons employed to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, to require or permit any such laborer or mechanic or any such person employed to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, to work more than eight hours in any calendar day, except in case of extraordinary emergency: Provided, That nothing in this Act shall apply or be construed to apply to persons employed in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia while not directly operating dredging or rock excavating machinery or tools, nor to persons engaged in construction or repair of levees or revetments necessary for protection against floods or overflows on the navigable rivers of the United States. Sec. 1, act of Aug. 1, 1892 (27 Stat. 340); act of Mar. 3, 1913 (37 Stat. 726); 40 U. S. C. 321.

That any officer or agent of the Government of the United States or of the District of Columbia, or any contractor or subcontractor whose duty it shall be to employ, direct, or control any laborer or mechanic employed upon a public work of the United States or of the District of Columbia, or any person employed to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, who shall intentionally violate any provision of this act, shall be deemed guilty of a misdemeanor, and for each and every such offense shall, upon conviction, be punished by a fine not to exceed one thousand dollars, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof. Sec. 2, act of Aug. 1, 1892 (27 Stat. 340); act of Mar. 3, 1913 (37 Stat. 726); 40 U. S. C. 322.

That the provisions of this Act shall not be so construed as to in any manner apply or to affect contractors or subcontractors, or to limit the hours of daily service of laborers or mechanics engaged upon a public work of the United States or of the District of Columbia, or persons employed to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, for which contracts have been entered into prior to the passing of this Act or may be entered into under the provisions of appropriation Acts approved prior to the

passage of this Act. Sec. 3, act of Aug. 1, 1892 (27 Stat. 340); act of Mar. 3, 1913 (37 Stat. 727); 40 U. S. C. 323.

The previous 8-hour law, act June 25, 1868 (15 Stat. 77), was incorporated into R. S. 3738, providing that eight hours should constitute a day's work for all laborers, workmen, and mechanics employed by or on behalf of the Government of the United States. That section was superseded by this act.

A permanent appropriation to pay such sum as might be required in the settlement of accounts for services of laborers, etc., employed by or on behalf of the Government, to settle and pay for the same without reduction on account of reduction of hours of labor by said act June 25, 1868, was made by R. S. 3689. That provision is omitted as obsolete.

The provision of this act was not to apply to alien laborers employed in the construction of the Isthmian Canal within the Canal Zone, by a provision of act Feb. 27, 1906, sec. 1 (34 Stat. 33); and it was not to apply to unskilled alien laborers and to the foremen and superintendents of such laborers so employed by a provision of act June 30, 1906, sec. 4 (34 Stat. 669). Both these provisions are omitted as temporary, merely.

Executive Order of September 19, 1906, published in War Department Circular No. 49 of 1906, requiring that all violations of the eight-hour law shall be referred to the Department of Justice for appropriate action, was superseded by Executive Order No. 7158-A, August 23, 1935, of similar purport.

Notes of Decisions

Intent. If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he in tentionally breaks the law in the only sense in which the law ever considers intent. Ellis v. U. S. (1906), 206 U. S. 246, 257.

With respect to the custom of "trading shifts," Held That one who has undertaken by contract not to permit his employees to work more than eight hours per day cannot escape responsibility by pleading that the men worked voluntarily and that he paid no attention to such detail. (1934) 38 Op. Atty. Gen. 150.

Dredge workers.-The penal statute of Aug. 1, 1892 (27 Stat. 340), was made applicable to persons "employed to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation" by the amending act of March 3, 1913 (37 Stat. 726) (see first paragraph supra). The amending act did not affect prior holdings that dredge workers are not laborers or mechanics within the meaning of the act of June 19, 1912 (37 Stat. 137), prescribing a civil penalty for violation (see 743, ante). (1934) 38 Op. Atty. Gen. 150.

745. Contracts; suspension of Eight-hour laws in 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); 40 U. S. C. 326.

746. Contracts for public works; Bacon-Davis Act. That the advertised specifications for every contract in excess of $2,000, to which the United States or the District of Columbia is a party, for construction, alteration, and/or repair, including painting and decorating, of public buildings or public works of the United States or the District of Columbia within the geographical limits of the States of the Union or the District of Columbia, and which requires or involves the employment of mechanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics, which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, vil lage, or other civil subdivision of the State in which the work is to be performed, or in the District of Columbia if the work is to be performed there; and every contract based upon these specifications shall contain a stipulation that the contractor or his subcontractor shall pay all mechanics and laborers

employed directly upon the site of the work, unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account, the full amounts accrued at time of payment, computed at wage rates not less than those stated in the advertised specifications, regardless of any contractual relationship which may be alleged to exist between the contractor or subcontractor and such laborers and mechanics, and that the scale of wages to be paid shall be posted by the contractor in a prominent and easily accessible place at the site of the work; and the further stipulation that there may be withheld from the contractor so much of accrued payments as may be considered necessary by the contracting officer to pay to laborers and mechanics employed by the contractor or any subcontractor on the work the difference between the rates of wages required by the contract to be paid laborers and mechanics on the work and the rates of wages received by such laborers and mechanics, and not refunded to the contractor, subcontractors, or their agents. Sec. 1, act of Mar. 3, 1931 (46 Stat. 1494); sec. 1, act of Aug. 30, 1935 (49 Stat. 1011); 40 U. S. C. 276a.

Every contract within the scope of this Act shall contain the further provision that in the event it is found by the contracting officer that any laborer or mechanic employed by the contractor or any subcontractor directly on the site of the work covered by the contract has been or is being paid a rate of wages less than the rate of wages required by the contract to be paid as aforesaid, the Government may, by written notice to the contractor, terminate his right to proceed with the work or such part of the work as to which there has been a failure to pay said required wages and to prosecute the work to completion by contract or otherwise, and the contractor and his sureties shall be liable to the Government for any excess costs occasioned the Government thereby, Sec. 2, act of Aug. 30, 1935 (49 Stat. 1012); 40 U. S. C. 276a-1.

(a) That the Comptroller General of the United States is hereby authorized and directed to pay directly to laborers and mechanics from any accrued payments withheld under the terms of the contract any wages found to be due laborers and mechanics pursuant to this Act; and the Comptroller General of the United States is further authorized and is directed to distribute a list to all departments of the Government giving the names of persons or firms whom he has found to have disregarded their obligations to employees and subcon tractors. No contract shall be awarded to the persons or firms appearing on this list or to any firm, corporation, partnership, or association in which such persons or firms have an interest until three years have elapsed from the date of publication of the list containing the names of such persons or firms.

(b) If the accrued payments withheld under the terms of the contract, as aforesaid, are insufficient to reimburse all the laborers and mechanics with respect to whom there has been a failure to pay the wages required pursuant to this Act, such laborers and mechanics shall have the right of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials, and in such proceedings it shall be no defense that such laborers and mechanics accepted or agreed to accept less than the required rate of wages or voluntarily made refunds. Sec. 3, act of Aug. 30, 1935 (49 Stat. 1012); 40 U. S. C. 276a-2.

This Act shall not be construed to supersede or impair any authority otherwise granted by Federal law to provide for the establishment of specific wage rates. Sec. 4, act of Aug. 30, 1935 (49 Stat. 1012); 40 U. S. C. 276a-3.

This Act shall take effect thirty days after its passage, but shall not affect any contract then existing or any contract that may thereafter be entered into

pursuant to invitations for bids that are outstanding at the time of the passage of this Act. Sec. 5, act of Aug. 30, 1935 (49 Stat. 1013); 40 U. S. C. 276a-4.

In the event of a national emergency the President is authorized to suspend the provisions of this Act. Sec. 6, act of Aug. 30, 1935 (49 Stat. 1013); 40 U. S. C. 276a-5.

The funds appropriated and made available by the Emergency Relief Appropriation Act of 1935 (Public Resolution Numbered 11, Seventy-fourth Congress) are hereby made available for the fiscal year ending June 30, 1936, to the Department of Labor for expenses of the administration of this Act. Sec. 7, act of Aug. 30, 1935 (49 Stat. 1013); 40 U. S. C. 276a-6.

The provisions of section 1, supra, were suspended until otherwise provided by Proclamation No. 2088, June 5, 1934, because of conflict with section 206, National Recovery Act, 899c, post.

Proclamation No. 2088 was revoked by Proclamation No. 2090, June 30, 1934.

For right of action referred to in section 3, supra, see 542, ante.

Regulations for predetermining the prevailing rates of wages were issued by the Department of Labor on September 30, 1935, and amended on August 26, 1936 (Reg. 503).

Notes of Decisions

Authority of Secretary of Labor.-Where decision of questions of fact is committed by Congress to judgment and discretion of head of department, his decision thereon is cous clusive, and courts have no power to interfere unless there has been denial of fair hearing, finding is not supported by any substantial evidence, or erroneous ruling of law has been made.

In suit by laborers on public building to recover difference between wages paid and prevailing rate, determination of Secretary of Labor as to prevailing wage rate held conclusive in absence of contention that Secretary acted arbitrarily or without substantial basis for his findings (Heard Act, as amended, 40 U. S. C. 270, 276a).

bert Engineering Corp. v. U. S. (1936), 82 Ct. Cl. 616.

Contracts within section.-Contracts in excess of $2,000 for alteration or repair of U. S. Coast Guard Vessels, boats, and aircraft, and such contracts for construction thereof as provide for passage of title to the U. S. during the progress of the work as partial payments are made, are contracts for "public works" as that phrase is used in this section, provided the contract is to be performed at a particular site, the location of which is known to the Government at the time bids are advertised. (1936) 38 Op. Atty. Gen. 418.

Performance of contract for construction and erection of Diesel engine for irrigation Power of Secretary of Labor to fix pre-district would not be enjoined on ground that vailing wage rates in case of dispute on public building construction includes power to determine period during which they have been prevalent in place in which public work is being done (40 U. S. C. 276a).

failure to contain minimum wage scale and maximum hour provision violated state statute, where foundation work and other construction in state had already been substantially completed (St. Cal. 1931, p. 910, as amended; Pen. Code Cal. sec. 653c, and sec. 653c-1 as added by St. 1933, p. 1644). Nev-Cal Electric Securities Co. v. Imperial Irr. Dist. (C. C. A., 1936), 85 F. (2d) 886. Alleged invalidity of part of contract of

Secretary of Labor, having found that prevailing wage rates differed from rates being paid by contractor on public building, has no power to postpone or defer time when his findings shall become effective. U. S. v. Barstow & Co. (C. C. A., 1935), 79 F. (2d) | irrigation district which called for construc

496.

It was not incumbent upon the Secretary of Labor to grant a hearing to the parties concerned before him under the act of March 3, 1931, for determination of the prevailing wage to be applied in Government contract work; and in the absence of fraud, or arbitrary or capricious action, the Secretary's determination was final and conclusive. Gil

tion work in state, on ground of failure to contain minimum wage and hour provisions required by state statute, did not affect rest of contract, where part of work to be done in state was easily separable from rest of project (St. Cal. 1931, p. 910, as amended; Pen. Code Cal. sec. 653c, and sec. 653c-1 as added by St. 1933, p. 1644.) Id.

747. Contracts for supplies; Walsh-Healy Act. That in any contract made and entered into by any executive department, independent establishment, or other agency or instrumentality of the United States, or by the District of Columbia, or by any corporation all the stock of which is beneficially owned by the United States (all the foregoing being hereinafter designated as agencies of