A-34106, JANUARY 10, 1931, 10 COMP. GEN. 294

A-34106: Jan 10, 1931

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CONTRACTS - SPECIFICATIONS - LABOR PREFERENCES - MINIMUM WAGES THERE IS NO AUTHORITY TO INCLUDE IN SPECIFICATIONS AN OBLIGATION WITHOUT STIPULATIONS IN THE CONTRACT TO ENFORCE THE OBLIGATION. THERE IS NO AUTHORITY FOR A CONTRACT STIPULATION TO SECURE SUCH PREFERENCES WHERE THE LAW HAS NOT SO PROVIDED. AS FOLLOWS: THERE IS INCLOSED HEREWITH COPY OF LETTER OF JULY 31. IN WHICH THE PRESIDENT CALLS ATTENTION TO COMPLAINTS THAT CONTRACTORS ENGAGED IN GOVERNMENT WORK ARE EMPLOYING ALIEN LABOR AND THAT THEY ARE IN CERTAIN CASES TRANSPORTING LABOR LONG DISTANCES INTO LOCALITIES WHERE THERE IS ALREADY CONSIDERABLE UNEMPLOYMENT. YOU WILL NOTE THAT THE PRESIDENT SUGGESTS THE INCLUSION OF A PARAGRAPH IN THE SPECIFICATIONS OF GOVERNMENT CONTRACTS TO REMEDY THIS EVIL.

A-34106, JANUARY 10, 1931, 10 COMP. GEN. 294

CONTRACTS - SPECIFICATIONS - LABOR PREFERENCES - MINIMUM WAGES THERE IS NO AUTHORITY TO INCLUDE IN SPECIFICATIONS AN OBLIGATION WITHOUT STIPULATIONS IN THE CONTRACT TO ENFORCE THE OBLIGATION. THE LAW HAVING SPECIFIED CERTAIN LIMITED INSTANCES WHERE ONE GROUP OF AMERICAN CITIZENS MAY BE GIVEN PREFERENCES IN EMPLOYMENT BY GOVERNMENT CONTRACTORS, THERE IS NO AUTHORITY FOR A CONTRACT STIPULATION TO SECURE SUCH PREFERENCES WHERE THE LAW HAS NOT SO PROVIDED. UNLESS SPECIFICALLY AUTHORIZED BY STATUTE OR REQUIRED BY A PUBLIC EXIGENCY, A CONTRACT FOR GOVERNMENT CONSTRUCTION WORK MAY NOT BE SO DRAWN AS TO REQUIRE PREFERENCE TO BE GIVEN IN THE EMPLOYMENT OF LABOR TO AMERICAN CITIZENS AND ALIENS WITH THEIR FIRST PAPERS OVER OTHER ALIENS.

IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, A GOVERNMENT CONTRACT MAY NOT PRESCRIBE A MINIMUM RATE OF WAGES TO BE PAID BY THE CONTRACTOR.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JANUARY 10, 1931:

THERE HAS BEEN CONSIDERED YOUR SUBMISSION OF NOVEMBER 3, 1930, AS FOLLOWS:

THERE IS INCLOSED HEREWITH COPY OF LETTER OF JULY 31, 1930, FROM THE PRESIDENT, ADDRESSED TO THE SECRETARY OF THE TREASURY, IN WHICH THE PRESIDENT CALLS ATTENTION TO COMPLAINTS THAT CONTRACTORS ENGAGED IN GOVERNMENT WORK ARE EMPLOYING ALIEN LABOR AND THAT THEY ARE IN CERTAIN CASES TRANSPORTING LABOR LONG DISTANCES INTO LOCALITIES WHERE THERE IS ALREADY CONSIDERABLE UNEMPLOYMENT. YOU WILL NOTE THAT THE PRESIDENT SUGGESTS THE INCLUSION OF A PARAGRAPH IN THE SPECIFICATIONS OF GOVERNMENT CONTRACTS TO REMEDY THIS EVIL.

THIS DEPARTMENT HAS ALSO RECEIVED NUMEROUS COMPLAINTS OF THIS CHARACTER AND ALSO THAT CONTRACTORS ARE TAKING ADVANTAGE OF THE UNEMPLOYMENT SITUATION TO CUT WAGES BELOW THE PREVAILING WAGE SCALE OR ARE TRANSPORTING CHEAP LABOR TO JOBS TO THE DETRIMENT OF LOCAL LABOR.

THE SITUATION IS ONE WHICH SHOULD NOT BE ENDURED. THIS DEPARTMENT BASES ITS ESTIMATES FOR APPROPRIATIONS ON THE FAIR WAGE SCALES PREVAILING THROUGHOUT THE COUNTRY, AND EXPECTS CONTRACTORS TO EMPLOY THE BEST TYPE OF AMERICAN MECHANICS AND LABORERS ON FEDERAL WORK. THE GOVERNMENT SHOULD BE THE LAST EMPLOYING AGENCY TO EXPECT OR COUNTENANCE THE PERFORMANCE OF ITS CONSTRUCTION CONTRACTS AT THE SACRIFICE OF ITS CITIZENS. IN THE ABSENCE OF ANY LAW FORBIDDING THE PRACTICES ABOVE NAMED IT IS THE DESIRE OF THE DEPARTMENT, IN ACCORDANCE WITH THE PRESIDENT'S WISHES, TO INCLUDE IN ITS SPECIFICATIONS A PARAGRAPH WHICH WILL GIVE THE DEPARTMENT THE CONTROL OF THE TYPE OF LABOR EMPLOYED ON ITS CONTRACTS AND THE WAGES TO BE PAID SUCH LABOR.

IN THIS CONNECTION THE FOLLOWING PARAGRAPH HAS BEEN PREPARED, AND IS SUBMITTED TO YOU FOR YOUR CONSIDERATION:

NOTICE TO BIDDERS: IN PREPARING THEIR ESTIMATES BIDDERS SHOULD KEEP IN MIND THE POLICY OF THE TREASURY DEPARTMENT TO MAINTAIN THE LOCAL WAGE SCALE, WHICH IN CASE OF DISPUTE WILL BE DETERMINED BY THE SECRETARY OF LABOR. FURTHERMORE, THE CONTRACTOR AND/OR HIS SUBCONTRACTOR OR SUBCONTRACTORS WILL BE REQUIRED TO GIVE PREFERENCE AT THE TIME OF EMPLOYMENT OF SKILLED AND UNSKILLED LABOR, TO EX-SERVICE MEN OF THE U.S. ARMY, NAVY, AND MARINE CORPS, AND TO CITIZENS OF THE UNITED STATES AND/OR ALIENS WHO HAVE TAKEN OUT THEIR FIRST PAPERS OF CITIZENSHIP PROVIDED THAT EXCEPTIONS TO THIS REQUIREMENT WILL BE PERMITTED ONLY TO SUCH EXTENT AS MAY BE SHOWN TO BE NECESSARY WHEN THE NUMBER OF QUALIFIED SKILLED AND/OR UNSKILLED LABORERS CAN NOT BE OBTAINED, AND PROVIDED FURTHER THAT THE TERM LABOR AS HEREIN USED SHALL NOT INCLUDE THE CONTRACTORS OR SUBCONTRACTORS OR SUBCONTRACTORS' MANAGERIAL OR SUPERVISORY OFFICERS OR EMPLOYEES, AND PROVIDED FURTHER THAT THE CONTRACTING OFFICER OR HIS REPRESENTATIVE, MAY REQUIRE THE CONTRACTOR AND/OR HIS SUBCONTRACTOR OR SUBCONTRACTORS TO DISCHARGE ANY LABORER OR MECHANIC EMPLOYED ON THE WORK AT THE SITE THEREOF.

IT IS NOT INTENDED TO PLACE THIS PARAGRAPH IN THE CONTRACTS, BUT IT WILL BE INSERTED IN THE SPECIFICATIONS AS A NOTICE TO BIDDERS.

IT WILL BE APPRECIATED IF YOU WILL EXPRESS YOUR VIEWS AS TO WHETHER IN YOUR OPINION THERE IS ANY LEGAL OBSTACLE TO THE INCLUSION OF THIS PARAGRAPH IN THE SPECIFICATIONS OF CONTRACTS FOR FEDERAL BUILDING CONSTRUCTION UNDER THE CONTROL OF THE TREASURY DEPARTMENT, AND IF THE PARAGRAPH MEETS WITH YOUR APPROVAL. ALSO THE DEPARTMENT WILL BE GLAD TO RECEIVE YOUR SUGGESTIONS AS TO ANY CHANGES IN PHRASEOLOGY WHICH YOUR OPINION WOULD MORE CERTAINLY ATTAIN THE DESIRED OBJECT.

IT IS NOTED THAT THE PARAGRAPH QUOTED IN YOUR SUBMISSION, REQUIRING MAINTENANCE OF THE LOCAL WAGE SCALE AND PREFERENCE FOR EX-SERVICE MEN AND CITIZENS OF THE UNITED STATES, INCLUDING ALIENS WHO HAVE TAKEN OUT THEIR FIRST PAPERS OF CITIZENSHIP, IS PROPOSED TO BE INSERTED IN THE ADVERTISED SPECIFICATIONS AS A NOTICE TO BIDDERS, BUT IS NOT TO BE INCLUDED IN CONTRACTS.

NO LENGTHY DISCUSSION WOULD SEEM NECESSARY TO REVEAL THE IMPROPRIETY OF WHAT IS THUS PROPOSED. IF THE PARAGRAPH IS TO BE MORE THAN A GESTURE THERE MUST BE ADEQUATE MEANS PROVIDED TO INSURE OBSERVANCE OF ITS STIPULATIONS BY CONTRACTORS. THEN, TOO, TO ENCOURAGE BIDDING IN AMOUNTS ADEQUATE TO MAINTAIN THE LOCAL WAGE SCALE AND TO GIVE THE PREFERENCES STIPULATED FOR, WITHOUT PROVIDING THE MEANS NECESSARY TO INSURE STRICT OBSERVANCE OF SUCH REQUIREMENTS, WOULD BE UNFAIR TO THE PUBLIC TREASURY AND INVOLVE AN UNAUTHORIZED USE OF THE APPROPRIATION CHARGEABLE FOR THE ACCOMPLISHMENT OF THE WORK.

IT IS ASSUMED, HOWEVER, THAT THE PROPOSED PARAGRAPH IS INTENDED TO BE MORE THAN A GESTURE AND THAT YOUR SUBMISSION INVOLVES THE QUESTION WHETHER EXISTING LAWS CONTROLLING THE USES OF APPROPRIATED MONEYS WILL PERMIT THE INCLUSION OF THE PROPOSED PARAGRAPH IN SPECIFICATIONS ADVERTISED FOR BIDS- -- WITH ADEQUATE PROVISION IN CONTRACTS FOR STRICT ENFORCEMENT, AND IT WILL BE CONSIDERED ACCORDINGLY.

WITH RESPECT TO THE PROPOSAL TO REQUIRE CONTRACTORS ON PUBLIC WORK OF THE TREASURY DEPARTMENT TO GIVE PREFERENCE TO EX-SERVICE MEN OF THE UNITED STATES ARMY, NAVY, AND MARINE CORPS, THERE WAS BEFORE THIS OFFICE IN DECISION OF NOVEMBER 8, 1930 (A-33826 AND A-33890), SECTION 9 OF THE ACT OF DECEMBER 21, 1928, 45 STAT. 1057, WHICH REQUIRED THAT PREFERENCE BE GIVEN TO SUCH EX-SERVICE MEN IN CONNECTION WITH THE CONSTRUCTION WORK ON THE HOOVER DAM. THIS OFFICE HELD IN SAID DECISION THAT THE STATUTORY REQUIREMENT AS TO PREFERENCE FOR EX-SERVICE MEN IN CONNECTION WITH CONSTRUCTION ON THE HOOVER DAM MUST BE OBSERVED BUT THE DIFFERENCE BETWEEN THE CASE CONSIDERED IN SAID DECISION OF NOVEMBER 8, 1930, AND THAT PHASE OF THE CASE HERE PRESENTED IS THAT THERE IS NO STATUTE AUTHORIZING OR REQUIRING PREFERENCE TO BE GIVEN TO EX-SERVICE MEN OVER OTHER AMERICAN CITIZENS BY CONTRACTORS ENGAGED ON CONSTRUCTION WORK FOR THE TREASURY DEPARTMENT. IT IS TO BE FURTHER NOTED THAT A SIMILAR STATUTORY PREFERENCE WAS REQUIRED BY CERTAIN EARLIER APPROPRIATION ACTS TO BE GIVEN TO EX- SERVICE MEN. SEE IN PARTICULAR THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1201, RELATING TO THE CONSTRUCTION OF PUBLIC ROADS AIDED BY FEDERAL FUNDS, WHICH REQUIRED SUCH PREFERENCE AND SPECIFICALLY PROHIBITED OTHER DISCRIMINATION AMONG CITIZENS OF THE UNITED STATES AS UNLAWFUL. THE CONGRESS HAVING MADE THE MATTER OF GIVING PREFERENCE TO EX-SERVICE MEN OVER OTHER AMERICAN CITIZENS THE SUBJECT OF LEGISLATION BY ENACTING SPECIFIC PROVISIONS FOR SUCH PREFERENCE IN CERTAIN INSTANCES, IT IS NOT OPEN TO ADMINISTRATIVE CONSIDERATION TO EXACT THE PREFERENCE WHERE THE CONGRESS HAS NOT SEEN FIT TO DO SO; THAT IS, BY REQUIRING PREFERENCE TO BE GIVEN BY CONTRACTORS ON TREASURY DEPARTMENT CONSTRUCTION WORK IN EMPLOYING THEIR SKILLED OR UNSKILLED LABORERS TO EX-SERVICE MEN OVER OTHER AMERICAN CITIZENS. THERE IS NO AUTHORITY OF LAW FOR MAKING SUCH DISCRIMINATION BETWEEN DIFFERENT GROUPS OF AMERICAN CITIZENS.

WITH RESPECT TO THE PREFERENCE PROPOSED TO BE REQUIRED OF CONTRACTORS ON CONSTRUCTION WORK OF THE TREASURY DEPARTMENT TO BE GIVEN TO AMERICAN CITIZENS AND/OR ALIENS WITH FIRST CITIZENSHIP PAPERS OVER OTHER ALIENS, IT WAS HELD BY THIS OFFICE IN DECISION OF NOVEMBER 8, 1930, SUPRA, THAT IN A CLEARLY PROPER CASE OBJECTION WOULD NOT BE MADE BY THE ACCOUNTING OFFICERS TO A REQUIREMENT THAT PREFERENCE BE GIVEN TO AMERICAN CITIZENS, ON PUBLIC WORK, OVER ALIENS, AND IN THE PARTICULAR CASE THEN UNDER CONSIDERATION--- CONSTRUCTION OF THE HOOVER DAM NEAR THE MEXICAN BORDER--- THE FACTS AND CIRCUMSTANCES APPEARED SUCH THAT IT WAS CONCLUDED OBJECTION MIGHT PROPERLY BE WITHHELD AS IN THE PUBLIC INTEREST IF THE PRESIDENT SHOULD CONCLUDE IN SUCH CONNECTION TO APPROVE SUCH MODIFICATION OF THE FORM OF CONTRACT THERETOFORE PRESCRIBED BY HIM AS FOR UNIFORM USE IN SUCH CASES. WHILE WHAT WAS THEREIN SAID AND HELD HAD RELATION TO THE PARTICULAR CASE THEN UNDER CONSIDERATION, INCLUDING ITS OWN FACTS, CIRCUMSTANCES, AND CONDITIONS, THERE APPEARS NO PRESENT REQUIREMENT FOR ANY MODIFICATION OF WHAT WAS THEREIN SAID AND HELD IN SUCH REGARD, NOR HAS THERE BEEN SUGGESTED REASON FOR ENLARGEMENT TO INCLUDE ALIENS WHO HAVE SECURED THEIR FIRST CITIZENSHIP PAPERS.

IN THIS CONNECTION IT SEEMS NOT IMPROPER TO INVITE ATTENTION TO YOUR COMMUNICATION OF SEPTEMBER 29, 1930, TO THE PRESIDENT, MADE IN RESPONSE TO HIS LETTER OF JULY 31, 1930, REFERRED TO IN THE FIRST PARAGRAPH OF YOUR SUBMISSION HEREIN. ATTACHED TO YOUR COMMUNICATION OF SEPTEMBER 29 THERE WAS A TABULATED STATEMENT OF THE NUMBER OF MEN EMPLOYED ON 26 CONSTRUCTION PROJECTS UNDER THE TREASURY DEPARTMENT, LOCATED IN VARIOUS PARTS OF THE UNITED STATES, AS FOLLOWS: CHART

NUMBER OF MEN EMPLOYED ON VARIOUS JOBS

BUILDING TOTAL ALIEN LOCAL OUTSIDE ASHEVILLE, N.C., POST OFFICE 65 0 60 5 BOISE, IADHO, POST OFFICE 60 0 33 27 BOSTON, MASS., POST OFFICE 48 0 36 12 BROOKLYN, N.Y., POST OFFICE 13 0 13 0 DALLAS, TEX., POST OFFICE

131 0 117 14 DENVER, COLO., CUSTOMHOUSE 90 0

81 9 FARGO, N. DAK., POST OFFICE 78 0 26 52 HAVERHILL, MASS., POST OFFICE 53 3 35 18 JUNEAU, ALASKA, FEDERAL BUILDING 101 9 39 62 LIMA, OHIO, POST OFFICE 50 0 34 16 LOWELL, MASS., POST OFFICE 27 0 27 0 MEMPHIS, TENN., POST OFFICE 140 1 126 14 MILWAUKEE, WIS., POST OFFICE 100 2 100 0 NEW ORLEANS, LA., MARINE HOSPITAL 32 0 32 0 OSHKOSH, WIS., POST OFFICE 34 0 21 13 PASSAIC, N.J., POST OFFICE 27 0 23 4 PULLMAN, MONT., POST OFFICE 20 0 20 0 RACINE, WIS., POST OFFICE 32 0 28 4 SAN FRANCISCO, CALIF., MARINE HOSPITAL 117 2 117 0 SEATTLE, WASH., IMMIGRANT STATION 50 0 50 0 SCRANTON, PA., POST OFFICE

103 5 96 7 SPRINGFIELD, ILL., POST OFFICE 65 1

41 24 TAMPA, FLA., POST OFFICE 65 0 53 12 TUCSON, ARIZ., POST OFFICE 161 0 103 58 TYRONE, PA., POST OFFICE

12 0 012 WATERTOWN, N.Y., POST OFFICE 50 11 45

5 TOTAL LINES 1,724 34 1,356 368

IT WOULD APPEAR, AS POINTED OUT IN YOUR LETTER OF SEPTEMBER 29, 1930, THAT THE NUMBER OF ALIENS SO EMPLOYED IS RELATIVELY SMALL--- 34 OUT OF A TOTAL OF 1,724.

THERE WOULD APPEAR FOR CONSIDERATION IN SUCH CONNECTION ALSO, AS HAVING SOME RELATIONSHIP THERETO, THE IMMIGRATION POLICY OF THE UNITED STATES AS IT HAS HERETOFORE BEEN AND AS IT NOW EXISTS, AS DISCLOSED BY THE ENACTMENTS ON THE SUBJECT, AND FROM WHICH THIS PROBLEM ARISES.

FROM WHAT HAS BEEN POINTED OUT IT NECESSARILY FOLLOWS THAT ONLY IN A CLEAR CASE OF NECESSITY IN THE PUBLIC INTEREST COULD THE ACCOUNTING OFFICERS PROPERLY WITHHOLD OBJECTION TO THE USES OF PUBLIC MONEYS THAT WOULD BE INVOLVED BY A CONTRACTUAL REQUIREMENT FOR EMPLOYMENT BY CONTRACTOR ON THE PUBLIC WORK INVOLVED, AMERICAN CITIZENS AND ALIENS WHO HAVE OBTAINED FIRST PAPERS OF CITIZENSHIP OVER OTHER ALIENS LAWFULLY HERE, WITHOUT LEGISLATIVE AUTHORITY THEREFOR.

WITH RESPECT TO THE QUESTION REMAINING:

IT IS PROPOSED BY THE SUBMISSION TO NOW INCLUDE IN REQUESTS FOR BIDS IN CASES WHERE PUBLIC WORK ENTRUSTED TO THE TREASURY DEPARTMENT FOR ACCOMPLISHMENT IS TO BE LET TO PRIVATE CONTRACTORS, A STIPULATION REQUIRING THE SUCCESSFUL BIDDER (THE CONTRACTOR) "TO MAINTAIN THE LOCAL WAGE SCALE WHICH IN CASE OF DISPUTE WILL BE DETERMINED BY THE SECRETARY OF LABOR," OR AS HAS BEEN SUGGESTED INFORMALLY, LANGUAGE HAVING LIKE PURPOSE AND EFFECT SUCH AS A REQUIREMENT THAT "CONTRACTOR PAY NOT LESS THAN THE PREVAILING RATE OF WAGES IN THE LOCALITY OR METROPOLITAN AREA IN WHICH THE PROJECT IS BEING CONSTRUCTED.' WHILE A SOMEWHAT SIMILAR MATTER WAS TREATED IN CERTAIN TEXT SUBMITTED HERE BY THE SECRETARY OF THE INTERIOR IN THE HOOVER DAM CASE, DECIDED NOVEMBER 8, 1930, THE PRECISE QUESTION HERE INVOLVED WAS NOT RAISED, CONSIDERED, OR DECIDED THEREIN.

THE SUPREME COURT OF THE UNITED STATES HAS HAD RECENT OCCASION TO CONSIDER AND EXPRESS DECISION ON STRIKINGLY SIMILAR LANGUAGE IN CONNALLY V. GENERAL CONSTRUCTION COMPANY, 269 U.S. 385. THIS WAS AN ACTION INVOLVING AN OKLAHOMA STATUTE REQUIRING "LABORERS, WORKMEN, MECHANICS, OR OTHER PERSONS EMPLOYED BY CONTRACTORS OR SUBCONTRACTORS IN THE EXECUTION OF ANY CONTRACT OR CONTRACTS WITH THE STATE" TO BE PAID BY THE CONTRACTOR OR SUBCONTRACTOR "NOT LESS THAT THE CURRENT RATE OF PER DIEM WAGES IN THE LOCALITY WHERE THE WORK IS PERFORMED. * * *.' THE STATUTE PROVIDED A PENALTY OF FINE OR IMPRISONMENT FOR VIOLATIONS. A DISPUTE AROSE AS TO THE AMOUNT OF THE CURRENT RATE OF PER DIEM WAGES BEING PAID LABOR IN THE LOCALITY WHERE THE PARTICULAR WORK WAS BEING PERFORMED, AND THE COMMISSIONER OF LABOR HAVING DETERMINED, AFTER INVESTIGATION, THAT $3.60 WAS SUCH CURRENT RATE OF WAGE IN THE LOCALITY, AND CONTRACTOR INSISTING UPON AND PAYING ONLY $3.20 PER DAY, CONTRACTOR WAS THREATENED WITH PROSECUTION IN THE EVENT THERE WAS NOT PAID THE RATE OF WAGE SO DETERMINED BY THE COMMISSIONER OF LABOR, AND APPLIED FOR INJUNCTION TO RESTRAIN THE STATE OFFICIALS FROM ENFORCING THAT STATUTE BECAUSE UNCONSTITUTIONAL. AFFIRMING THE DECREE OF THE LOWER COURT GRANTING INJUNCTION RELIEF THE SUPREME COURT SAID:

WE ARE OF OPINION THAT THIS PROVISION PRESENTS A DOUBLE UNCERTAINTY, FATAL TO ITS VALIDITY AS A CRIMINAL STATUTE. IN THE FIRST PLACE, THE WORDS "CURRENT RATE OF WAGES" DO NOT DENOTE A SPECIFIC OR DEFINITE SUM, BUT MINIMUM, MAXIMUM AND INTERMEDIATE AMOUNTS, INDETERMINATELY, VARYING FROM TIME TO TIME AND DEPENDENT UPON THE CLASS AND KIND OF WORK DONE, THE EFFICIENCY OF THE WORKMEN, ETC., AS THE BILL ALLEGES IS THE CASE IN RESPECT OF THE TERRITORY SURROUNDING THE BRIDGES UNDER CONSTRUCTION. THE STATUTORY PHRASE REASONABLY CAN NOT BE CONFINED TO ANY OF THESE AMOUNTS, SINCE IT IMPORTS EACH AND ALL OF THEM. THE "CURRENT RATE OF WAGES" IS NOT SIMPLE BUT PROGRESSIVE--- FROM SO MUCH (THE MINIMUM) TO SO MUCH (THE MAXIMUM), INCLUDING ALL BETWEEN; AND TO DIRECT THE PAYMENT OF AN AMOUNT WHICH SHALL NOT BE LESS THAN ONE OF SEVERAL DIFFERENT AMOUNTS, WITHOUT SAYING WHICH, IS TO LEAVE THE QUESTION OF WHAT IS MEANT INCAPABLE OF ANY DEFINITE ANSWER. SEE PEOPLE EX REL. RODGERS V. COLER, 166 N.Y. 1, 24-25.

NOR CAN THE QUESTION BE SOLVED BY RESORT TO THE ESTABLISHED CANONS OF CONSTRUCTION THAT ENABLE A COURT TO LOOK THROUGH AWKWARD OR CLUMSY EXPRESSION, OR LANGUAGE WANTING IN PRECISION, TO THE INTENT OF THE LEGISLATURE. FOR THE VICE OF THE STATUTE HERE LIES IN THE IMPOSSIBILITY OF ASCERTAINING, BY ANY REASONABLE TEST, THAT THE LEGISLATURE MEANT ONE THING RATHER THAN ANOTHER, AND IN THE FUTILITY OF AN ATTEMPT TO APPLY A REQUIREMENT, WHICH ASSUMES THE EXISTENCE OF A RATE OF WAGES SINGLE IN AMOUNT, TO A RATE IN FACT COMPOSED OF A MULTITUDE OF GRADATIONS. CONSTRUE THE PHRASE "CURRENT RATE OF WAGES" AS MEANING EITHER THE LOWEST RATE OR THE HIGHEST RATE OR ANY INTERMEDIATE RATE OR, IF IT WERE POSSIBLE TO DETERMINE THE VARIOUS FACTORS TO BE CONSIDERED, AN AVERAGE OF ALL RATES, WOULD BE AS LIKELY TO DEFEAT THE PURPOSE OF THE LEGISLATURE AS TO PROMOTE IT. SEE STATE V. PARTLOW, 91 N.C. 550, 553; COMMONWEALTH V. BANK OF PENNSYLVANIA 3 WATTS AND S. 173, 177.

IN THE SECOND PLACE, ADDITIONAL OBSCURITY IS IMPARTED TO THE STATUTE BY THE USE OF THE QUALIFYING WORD "LOCALITY.' WHO CAN SAY, WITH ANY DEGREE OF ACCURACY, WHAT AREAS CONSTITUTE THE LOCALITY WHERE A GIVEN PIECE OF WORK IS BEING DONE? TWO MEN MOVING IN ANY DIRECTION FROM THE PLACE OF OPERATIONS WOULD NOT BE AT ALL LIKELY TO AGREE UPON THE POINT WHERE THEY HAD PASSED THE BOUNDARY WHICH SEPARATED THE LOCALITY OF THAT WORK FROM THE NEXT LOCALITY. IT IS SAID THAT THIS QUESTION IS SETTLED FOR US BY THE DECISION OF THE CRIMINAL COURT OF APPEALS ON REHEARING IN STATE V. TIBBETTS, 205 PAC. 776, 779. BUT ALL THE COURT DID THERE WAS TO DEFINE THE WORD "LOCALITY" AS MEANING "PLACE," "NEAR THE PLACE," "VICINITY," OR "NEIGHBORHOOD.' ACCEPTING THIS AS CORRECT, AS OF COURSE WE DO, THE RESULT IS NOT TO REMOVE THE OBSCURITY, BUT RATHER TO OFFER A CHOICE OF UNCERTAINTIES. THE WORD "NEIGHBORHOOD" IS QUITE AS SUSCEPTIBLE OF VARIATION AS THE WORD ,LOCALITY.' BOTH TERMS ARE ELASTIC AND, DEPENDENT UPON CIRCUMSTANCES, MAY BE EQUALLY SATISFIED BY AREAS MEASURED BY RODS OR BY MILES. SEE SCHMIDT V. KANSAS CITY DISTILLING CO., 90 MO. 284, 296; WOODS V. COCHRAN AND SMITH, 38 IOWA 484, 485; STATE EX REL. CHRISTIE V. MEEK, 26 WASH. 405,407-408; MILLVILLE IMP. CO. V. PITMAN, ETC., GAS CO., 75 N.J. LAW, 410, 412; THOMAS V. MARSHFIELD, 10 PICK. 364, 367. THE CASE LAST CITED HELD THAT A GRANT OF COMMON TO THE INHABITANTS OF A CERTAIN NEIGHBORHOOD WAS VOID BECAUSE THE TERM "NEIGHBORHOOD" WAS NOT SUFFICIENTLY CERTAIN TO IDENTIFY THE GRANTEES. IN OTHER CONNECTIONS OR UNDER OTHER CONDITIONS THE TERM "LOCALITY" MIGHT BE DEFINITE ENOUGH, BUT NOT SO IN A STATUTE SUCH AS THAT UNDER REVIEW IMPOSING CRIMINAL PENALTIES. CERTAINLY, THE EXPRESSION "NEAR THE PLACE" LEAVES MUCH TO BE DESIRED IN THE WAY OF DELIMITATION OF BOUNDARIES; FOR IT AT ONCE PROVOKES THE INQUIRY,"HOW NEAR? " AND THIS ELEMENT OF UNCERTAINTY CANNOT HERE BE PUT ASIDE AS OF NO CONSEQUENCE, FOR, AS THE RATE OF WAGES MAY VARY--- AS IN THE PRESENT CASE IT IS ALLEGED DOES VARY--- AMONG DIFFERENT EMPLOYERS AND ACCORDING TO THE RELATIVE EFFICIENCY OF THE WORKMEN, SO IT MAY VARY IN DIFFERENT SECTIONS. THE RESULT IS THAT THE APPLICATION OF THE LAW DEPENDS NOT UPON A WORD OF FIXED MEANING IN ITSELF, OR ONE MADE DEFINITE BY STATUTORY OR JUDICIAL DEFINITION, OR BY THE CONTEXT OR OTHER LEGITIMATE AID TO ITS CONSTRUCTION, BUT UPON THE PROBABLY VARYING IMPRESSIONS OF JURIES AS TO WHETHER GIVEN AREAS ARE OR NOT TO BE INCLUDED WITHIN PARTICULAR LOCALITIES. THE CONSTITUTIONAL GUARANTY OF DUE PROCESS CANNOT BE ALLOWED TO REST UPON A SUPPORT SO EQUIVOCAL.

WHILE THE OKLAHOMA CASE INVOLVED A STATUTE IMPOSING A FINE OR IMPRISONMENT AS PENALTY FOR VIOLATION AND WAS THUS PENAL IN ITS NATURE, IT IS ASSUMED THERE WILL BE PROVIDED, AS WOULD APPEAR NECESSARY IF IT SHOULD BE HELD PERMISSIBLE UNDER EXISTING LAW TO INCLUDE THE SUGGESTED LANGUAGE IN CONTRACT MATTERS AS PROPOSED, ADEQUATE MEANS TO ACCOMPLISH AND INSURE FULL COMPLIANCE, INCLUDING PENALTY FOR VIOLATION.

BUT ASIDE FROM THIS ASPECT OF THE MATTER THERE REMAIN OTHER SERIOUS QUESTIONS--- WHETHER UNDER EXISTING LAW THE MATTER OF SO FIXING THE WAGES AN EMPLOYER MUST PAY IN THE DOING OF GOVERNMENT WORK IS ONE AUTHORIZED TO BE ACCOMPLISHED IN CONNECTION WITH THE CONTRACTING THEREFOR PURSUANT TO SECTION 3709, REVISED STATUTES--- AND, IF SO, WHETHER AN APPROPRIATION, GENERAL IN TERMS, MAY PROPERLY BE HELD AVAILABLE FOR PAYMENTS IN SUCH CONNECTION.

IT HAS LONG BEEN THE RULE, ENFORCED UNIFORMLY BY THE ACCOUNTING OFFICERS AND THE COURTS, THAT AN APPROPRIATION OF PUBLIC MONEYS BY THE CONGRESS, MADE IN GENERAL TERMS, IS AVAILABLE ONLY TO ACCOMPLISH THE PARTICULAR THING AUTHORIZED BY THE APPROPRIATION TO BE DONE. IT IS EQUALLY WELL ESTABLISHED THAT PUBLIC MONEYS SO APPROPRIATED ARE AVAILABLE ONLY FOR USES REASONABLY AND CLEARLY NECESSARY TO THE ACCOMPLISHMENT OF THE THING AUTHORIZED BY THE APPROPRIATION TO BE DONE.

USUALLY THE THING SO AUTHORIZED TO BE DONE MAY BE ACCOMPLISHED EITHER THROUGH A GOVERNMENTAL AGENCY EMPLOYING THE NECESSARY LABOR, PURCHASING THE NEEDED MATERIALS, ETC., OR, IN A PROPER CASE, THROUGH CONTRACTING WITH A CITIZEN TO DO THE JOB, WHO, BY HIS CONTRACT, ASSUMES THE RESPONSIBILITY FOR SUPPLYING EVERYTHING NEEDED TO FULLY DISCHARGE HIS CONTRACTUAL OBLIGATIONS, INCLUDING LABOR, MATERIALS, ETC. IN SO CONTRACTING THE BASIC STATUTE TO BE OBSERVED IS SECTION 3709, REVISED STATUTES. THE CLEAR PURPOSE OF THIS STATUTE IS TO SECURE FULL AND FREE COMPETITION IN SUPPLYING THE NEEDS OF THE UNITED STATES (WHICH NEEDS ARE REQUIRED TO BE CLEARLY STATED IN THE REQUEST FOR BIDS), AND THE BENEFIT TO THE TREASURY OF REQUIRED ACCEPTANCE OF THE LOW RESPONSIBLE BIDDER.

THE CLEAR INTENT OF THE SUGGESTED LANGUAGE, EMPLOYED IN CONNECTION WITH BIDDING AND CONTRACTING AS PROPOSED, IS TO BENEFIT THOSE EMPLOYED ON THE WORK BY CONTRACTORS AND TO INSURE THEM AGAINST WAGE REDUCTIONS BELOW THE "LOCAL WAGE SCALE" OR THE "PREVAILING RATE OF WAGES IN THE LOCALITY.' FACT, THE SUGGESTED LANGUAGE ADMONISHES BIDDERS TO INCLUDE IN THEIR BIDS AMOUNTS WITH WHICH TO SO MAKE PAYMENTS, AND IT MUST BE ASSUMED THE BIDDING WILL BE ACCORDINGLY.

NO MATTER HOW WORTHY MAY BE THE OBJECT OR END SOUGHT TO BE ATTAINED THROUGH ACTION BY THE EXECUTIVE BRANCH, WHERE THE USE OF PUBLIC MONEY WOULD BE INVOLVED IN ITS ACCOMPLISHMENT, IT BECOMES NECESSARY, IF OUR SYSTEM OF GOVERNMENT IS TO BE FAITHFULLY OBSERVED, FOR THE ACCOUNTING OFFICERS TO QUESTION THE PROPOSED USE UNLESS BY THEM FOUND TO BE REASONABLY WITHIN THE LAW OF THE APPROPRIATION PROPOSED TO BE EMPLOYED. THEN, IF AGREEMENT TO THE PROPOSED USE MUST BE BY THE ACCOUNTING OFFICERS WITHHELD, THE MATTER MAY GO TO THE CONGRESS--- THE SOURCE OF ALL AUTHORITY FOR THE USES OF PUBLIC MONEYS.

HOWEVER DESIRABLE THE CONTRARY MAY BE, IT SEEMS CLEAR THAT IN THE PRESENT STATE OF LAW THE PROPOSAL TO FIX BY CONTRACT THE MINIMUM RATE OF WAGES THE CONTRACTOR MUST PAY HIS EMPLOYEES IN THE DOING OF THE CONTRACT WORK, ASSUMING A CONTRACT OTHERWISE VALID AND ENFORCEABLE COULD BE DRAWN, CLASHES WITH THE LONG-RECOGNIZED INTENT AND PURPOSE OF SECTION 3709, REVISED STATUTES, IN THAT IT REMOVES FROM COMPETITIVE BIDDING ON THE PROJECT AN IMPORTANT ELEMENT OF COST AND TENDS TO DEFEAT THE PURPOSE OF THE STATUTE; THAT IS, TO OBTAIN A NEED OF THE UNITED STATES, AUTHORIZED BY LAW TO BE ACQUIRED, AT A COST NO GREATER THAN THE AMOUNT OF THE BID OF THE LOW RESPONSIBLE BIDDER, AFTER FULL AND FREE COMPETITIVE BIDDING.

BUT WERE IT POSSIBLE TO SURMOUNT THIS OBSTACLE, COULD IT PROPERLY BE HELD THAT THE FIXING OF THE MINIMUM WAGES TO BE PAID EMPLOYEES, AS PROPOSED, HAS SUCH INTIMATE RELATIONSHIP TO THE SINGLE MATTER OF ACCOMPLISHING THE THING AUTHORIZED BY THE APPROPRIATION TO BE DONE AS TO PROPERLY PERMIT ITS BEING HELD, IN OTHER THAN A MOST EXTRAORDINARY CASE, REASONABLY NECESSARY TO SUCH ACCOMPLISHMENT, SO AS TO MEET THE TEST LONG APPLIED IN DETERMINING THE AVAILABILITY OF AN APPROPRIATION GENERAL IN TERMS FOR PROPOSED OR ACCOMPLISHED USES? I FEAR NOT. THAT THE COST TO THE UNITED STATES, BECAUSE OF THE ADMONITION TO BIDDERS TO SO BID AS TO BE ABLE TO PAY THE WAGES AS SO FIXED--- WHETHER ACTUALLY SO PAID OR NOT--- WOULD BE INCREASED, SEEMS TOO CLEAR FOR QUESTION. SUCH ADDED COST, IN THE MATTERS INVOLVED IN THE SUBMISSION, WOULD SEEM TO HAVE NO RELATIONSHIP TO THE ACTUAL ACCOMPLISHMENT OF THE WORK AUTHORIZED BY THE APPROPRIATIONS TO BE DONE AND CONSEQUENTLY COULD NOT PROPERLY BE PAID FROM SUCH APPROPRIATIONS.

WHAT IS HERE INVOLVED APPEARS A MATTER WHICH, IN THE PRESENT STATE OF THE LAW, IS NOT FOR ADJUSTMENT THROUGH ADMINISTRATIVE ACTION IN CONTRACTING, AND USES OF APPROPRIATED MONEYS IN SUCH CONNECTION WITHOUT FURTHER EXPRESSION AND AUTHORITY THEREON FROM THE CONGRESS MAY NOT PROPERLY BE APPROVED BY THE ACCOUNTING OFFICER.

THAT THE CONGRESS REGARDS THE PROBLEM AS ONE FOR ADJUSTMENT THROUGH LEGISLATIVE ENACTMENT, POSSIBLY BECAUSE OF THE EFFECT ON THE ECONOMIC STRUCTURE, IS EVIDENCED BY SENATE AMENDMENT NO. 14 TO THE BILL H.R. 14804, RECENTLY CONSIDERED AND ENACTED AFTER ELIMINATION OF THE SAID AMENDMENT, AND OTHER MEASURES NOW PENDING.

ANSWERING SPECIFICALLY YOUR SUBMISSION, I FEEL COMPELLED TO HOLD---

1. THAT TO INCLUDE THE PROPOSED LANGUAGE IN REQUESTS FOR BIDS WITHOUT PROVIDING ADEQUATE MEANS FOR EXACTING COMPLETE COMPLIANCE THEREWITH WOULD NOT BE AUTHORIZED.

2. THAT ONLY IN A CLEAR CASE OF NECESSITY IN THE PUBLIC INTEREST MAY THE ACCOUNTING OFFICERS PROPERLY WITHHOLD OBJECTION TO THE USES OF PUBLIC MONEYS THAT WOULD BE INVOLVED BY A CONTRACTUAL REQUIREMENT FOR EMPLOYMENT BY CONTRACTOR ON THE PUBLIC WORK INVOLVED AMERICAN CITIZENS AND ALIENS WHO HAVE TAKEN OUT FIRST PAPERS OF CITIZENSHIP OVER OTHER ALIENS LAWFULLY HERE, WITHOUT FURTHER LEGISLATIVE AUTHORITY THEREFOR THAN NOW EXISTS.

3. DISCRIMINATION BETWEEN DIFFERENT GROUPS OF AMERICAN CITIZENS THROUGH EXACTING PREFERENCE FOR ONE OVER THE OTHERS BY CONTRACTORS ENGAGED ON PUBLIC WORK IS UNAUTHORIZED OTHER THAN WHEN SPECIFICALLY SO REQUIRED BY LAW.

4. TO INCLUDE IN REQUESTS FOR BIDS A PROVISION ADMONISHING BIDDERS TO SO BID AS TO BE ABLE, IN THE EVENT OF BEING AWARDED THE CONTRACT, TO PAY EMPLOYEES ON THE CONTRACT WORK THE "LOCAL WAGE SCALE" OR "THE PREVAILING RATES OF WAGES IN THE LOCALITY OR METROPOLITAN AREA IN WHICH THE PROJECT IS BEING CONSTRUCTED," EVEN WITH ADEQUATE PROVISION FOR COMPLETE ENFORCEMENT AGAINST CONTRACTORS, WOULD, IN GENERAL AND IN THE PRESENT STATE OF THE LAW, BE UNAUTHORIZED. ONLY IN SUCH RARE CASE, IF ONE THERE MIGHT BE UNDER EXISTING CONDITIONS, WHERE THE NEED FOR SUCH STIPULATION COULD ON THE FACTS BE HELD AS REQUIRED TO ACCOMPLISH THE THING AUTHORIZED BY THE APPROPRIATION TO BE DONE, COULD OBJECTION BE PROPERLY WITHHELD.