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EIGHT-HOUR LAW-CONTRACTORS FURNISHING QUARTERMASTER'S SUPPLIES— Advance Sheets, 26 Op., page 36.-On July 25, 1906, the Secretary of War made an inquiry of the Department of Justice as to the applicability of the act of August 1, 1892, to contractors furnishing supplies for the Quartermaster's Department. The temporary nature of such supplies, as contrasted with permanent improvements such as are commonly found in connection with public works, was referred to as affecting the conclusions to be reached. The reply of Henry M. Hoyt, Acting Attorney-General, was in the negative, as appears from the following quotation from the opinion prepared by him:
In an opinion which I have just rendered to the Secretary of the Navy (above), regarding the application of this law to the construction of vessels for the Navy under contract with private establishments, it is held that the law is not applicable to such a contract, and also that the furnishing of equipment and material for such vessels—as, for instance, armor, guns, etc.—under special contract is not embraced within the law.
The case presented by you appears to me to be clearer even than the foregoing cases, for, presumably, quartermaster's supplies for the use of the Army are such as, generally speaking, are consumed sooner or later in the using. In the opinion to the Secretary of the Navy just cited I followed Mr. Miller's opinion of August 24, 1892. [See opinion next above for note on Mr. Miller's opinion.) I again approve that opinion, and therefore have the honor to answer your question in the negative.
EIGHT-HIOUR LAW-RECLAMATION SERVICE-- Advance Sheets, 26 Op., page 64.-An act of June 17, 1902, known as the Reclamation Act, provides for the construction of irrigation works by the Government, and contains a provision as to hours of labor without reference to conditions of extraordinary emergency. In view of this and other subjects of inquiry, the Secretary of the Interior, on September 21, 1906, addressed the following questions to the Attorney-General:
(1) Is the proviso to section 4 of the act of June 17, 1902, supra, which declares in part, “That in all construction work eight hours shall constitute a day's work,” to be regarded as in anywise repealing or modifying that provision of the act of August 1, 1892, which makes it unlawful to employ or permit laborers to work more than eight hours in any one calendar day on any public works of the United States "except in case of extraordinary emergency.” Differently stated, is the declaration in the act of June 17, 1902, that eight hours shall constitute a day's work upon the public works therein specified, in conflict with the saving clause in the act of August 1, 1892, which allows more than eight hours' work in one calendar day “in case of extraordinary emergency?”
(2) Are blacksmiths and their helpers, teamsters hauling camp supplies, etc., firemen, pumpmen, cooks, and flunkies to be classed
as “laborerers and mechanics" within the meaning of these terms as employed in the act of August 1, 1892?
(3) Are the engineers of the Reclamation Service responsible under the statutes in case the contractors on the works under their supervision shall require more than eight hours' labor from laborers and mechanics upon these works?
The opinion of Attorney-General Moody given in reply is reproduced in full:
The letter of the Director of the Geological Survey states that it is dangerous to both life and property to do blasting during the regular hours of labor when the men and the steam shovel are at work; and that it is very necessary to keep the powder men at their posts after the regular working hours in order to make their final preparations for shooting the blasts. The letter also states that it is necessary to clean up the shale thrown down by the blasts upon the tracks before the regular working hours the following morning, in order that the force on the cuts and steam shovel shall not then be standing around idle until the tracks can be cleaned. The same reason for work before or after the regular hours applies to the necessary shifting of track, shoeing of horses, repair and cleaning machinery, and to other labor essential to the promptness and efficiency of the regular day service of men and machinery. It is also suggested that if water for domestic use of the camp may not be hauled after regular working hours by some of the teams on the work, it would be necessary to keep an extra team for this purpose only, at much greater cost than “by putting in a little time by extra work;" and that teamsters hauling supplies, cooks, and “flunkies' (by which I understand scullions or assistants to cooks are meant) must put in more than eight hours per day.
The eight-hour law of 1892 (act of August 1, 1892, 27 Stat., 340) provides (sec. 1):
“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, by the District of Columbia, or by any contractor or subcontractor upon any of the public works of the United States or of the said 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 to require or permit any such laborer or mechanic to work more than eight hours in any calendar day except in case of extraordinary emergency."
The Reclamation Act provides (act of June 17, 1902, sec. 4, 32 Stat., 388):
“In all construction work eight hours shall constitute a day's work."
There can be no doubt that under the terms of these laws and in the light of the discussions and opinions relative to the eight-hour law (20 Op., 454, 459; 26 Op., 30, 36) “irrigation works for the storage, diversions, and development of waters for the reclamation of arid and semi-arid lands" (sec. 1, Reclamation Act) perfectly and comprehensively fill the idea of “public works of the United States." This conception is not weakened by the fact that ultimately the management and operation of such irrigation works is to pass to the owners of the lands irrigated (sec. 6), for not only when constructed are all these irrigation works public works of the United States upon lands of the United States to be acquired by condemnation if necessary (sec. 7), but section 6 also provides that the title to the reservoirs and the works necessary for their protection and operation shall remain in the Government until otherwise provided by Congress.'
But I think that the eight-hour day means eight hours of effective labor, and therefore so far as your questions present the case of laborers and mechanics who, from the exigencies of the situation, must wait until after the completion of the regular day to finish their work, I am of the opinion that the blasting, cleaning of tracks, repair of machinery, and all other similar work essential to prompt and continuous service in the regular day may be legally done before and after the regular hours. To be more specific, laborers and mechanics who are called upon to do two hours' work, for example, before or after the regular day begins or ends have no just cause for complaint that the law is violated if they are only called upon to work six more hours during the regular hours. The law gives no countenance to the conception that the interval between the beginning and end of the regular day is a controlling convention which excludes labor at any other time and entitles workmen to stand around idle if their services can not be fully availed of during that interval. The law limits the working day to eight hours, but it does not prescribe in what hours of the day the work shall be done. Practically, no doubt, there should be a real necessity, as is obviously the case here, for work during other hours than the regular day; and there should be scrutiny and cảre lest abuses arise which, however, the right of contract, subject to the law, between laborer and employer ought to prevent.
I do not wish to enter upon the minima of the case unnecessarily, and yet, noticing the claim that it would cost more to provide water for the camp unless it can be hauled on “extra time," I take occasion to observe that the element of cost makes no difference. The legality of the proceeding depends upon the consideration whether the men employed on this service are laborers or mechanics, or whether they give, excluding this service, eight hours' effective labor.
Your inquiry whether the engineers of the Reclamation Service are responsible for the action of contractors in requiring more than eight hours' labor for laborers and mechanics is susceptible of two constructions. It is certainly my opinion that it is their duty to be vigilant in their scrutiny and to report violations of law which may come under their observation. This is not altogether a question of law for my determination, but rather, perhaps, a question of administration for you to settle in the light of the general executive policy. But as the question has been touched upon by my predecessor, Mr. Miller, I may properly express my view. The case of United States v. Driscoll (96 U. S., 421) has also been brought to my attention. That decision merely held that a workman for a contractor could not maintain a claim against the United States for compensation for labor over eight hours a day; that there was no privity between him and the United States. There was no occasion there for any intimation from the court regarding the administrative duty of the United States in respect to violations of the law by contractors, and, accordingly, no intimation whatever was given. There is a current misconception as to the scope of Attorney-General Miller's opinion (20 Op., *501). Mr. Miller was requested by the Secretary of the Treasury, at the instance of a contractor, to determine whether laborers and mechanics engaged by the contractor to carry out a contract by the Government came within the application of the eight-hour law. Mr. Miller declined to answer the inquiry, on the ground that it was not a question of law arising in the administration of the Treasury Department. The inquiry was in reality the inquiry of the contractor, and with that fact in mind, doubtless, Mr. Miller observed that
"The duty to employ, direct, or control such laborers or mechanics, and the penalty of their wrongful employment is with the contractor and not with the Government or any of its officers or agents.”
But Mr. Miller does not by this remark undertake to determine what the deliberate executive policy on the subject might or should be. My own view of the matter, as now squarely presented, is that it is the duty of the engineers of the Reclamation Service under your direction to see to it that the law is observel by the contractors and to report any violation of it which comes under their observation. I understand this to be the sense in which you ask whether they are responsible--not in the sense of legal liability to the workmen.
Recurring, then, to your questions, as to the first my answer is that there is no conflict between the act of August 1, 1892, and the proviso to section 4 of the act of June 17, 1902. The "extraordinary emergency” of the former act would apply to the latter. The acts are to be construed together, and I do not think that it was the intention of Congress, by the proviso in the Reclamation Act and use of the term “construction work," either to displace the provisions of the act of August 1, 1892, as to laborers an 1 mechanics not strictly engaged in "construction work," or to exclude the exception of an "extraordinary emergency It is not necessary for me to define generally what an extraordinary emergency is, and it is clear to me That the facts in this case do not present an extraorslinary emergency as intended by the law. But, with the qualifications which I have state:1, I wish to make it clear that the eight-hour law applies fully to contractors on the irrigation works constructed by the United States.
Your second question I have answered, as far as the facts before me permit; but I may add that it seems clear to me that blacksmiths and their helpers, firemen and pumpmen are either mechanics or laborers. As to teamsters, cooks, and “flunkies," I leave the inquiry as to their status where Mr. Miller left a similar query in 20 Op. 459 [to be answered accorsling to the con litions of employment and other matters of fact not stated, and therefore not within the cognizance of the Attorney-General), and add the remark that the obvious necessity of eight hours' effective labor in any case seems to dispose of that point as now raise? The answer to the third question, as already in-licated, is that the engineers of the Reclamation Service are responsible to the extent of requiring the law to be observed and reporting violations of it.
DECISIONS OF COURTS AFFECTING LABOR.
(Except in cases of special interest, the decisions here presented are restricted to those rendered by the Federal courts and the higher courts of the States and Territories. Only material portions of such decisions are reproduced, introductory and explanatory matter being given in the words of the editor. Decisions under statutory law are indexed under the proper headings in the cumulative index, page 239 et seq.)
DECISIONS UNDER STATUTORY LAW.
BOYCOTTING-PICKETING--INJUNCTION--Goldberg, Bowen & Company v. Stablemen's Union, Local No. 8,760, Supreme Court of California, 86 Pacific Reporter, page 806.— This case was before the supreme court on appeal from the superior court of the city and county of San Francisco, in which the company named above had been granted an injunction restraining the Stablemen's Union and others from interference with its business. The firm was a mercantile one, engaged in selling groceries and general household goods, for the delivery of which it kept a number of horses and wagons and employed many stablemen, who were members of the union. Owing to a disagreement on the subject of wages, a strike of the stablemen occurred, which was followed by a boycott, against which the injunction above mentioned was secured. The appeal resulted in the affirmation of the injunction in a modified form.
The allegations charged conspiracy and the picketing of the stores and stables of the complainants, and the display of transparencies and placards bearing legends that were false in fact, which acts were injurious to the complainants' business; also that the customers were impeded and deterred from dealing with and other employees from serving the complainants by reason of intimidation and other forms of interference. The defendants being irresponsible and the damage likely to be continuing and irreparable, the continuance of the injunction was urged by the company.
The defendant organization claimed that they were protected by chapter 235, Acts of 1903, which declares that “no agreement, combination, or contract by or between two or more persons to do or procure to be done, or not to do or procure not to be done, any act in contemplation or furtherance of any trade dispute between employers and employees in the State of California shall be deemed criminal, nor shall those engaged therein be indictable or otherwise punishable for the crime of conspiracy, if such act committed by one person would not be