B-6494, NOVEMBER 24, 1939, 19 COMP. GEN. 516

B-6494, NOVEMBER 24, 1939, 19 COMP. GEN. 516

CONTRACTS - FOREIGN COUNTRIES - EIGHT-HOUR LAW AND CONGRESSIONAL INTEREST STIPULATIONS A STATUTE NEED NOT BE INTERPRETED ACCORDING TO ITS STRICT LETTER WHEN TO DO SO WOULD, AMONG OTHER THINGS, ACHIEVE A RESULT CONTRARY TO ITS EVIDENT PURPOSE AND THE LEGISLATIVE INTENT, AND LEAD TO UNJUST OR ABSURD CONSEQUENCES. THE EIGHT-HOUR LAW OF JUNE 19, 1912, 37 STAT. 137, PROHIBITING THE EMPLOYMENT, UNDER GOVERNMENT CONTRACTS, OF LABORERS OR MECHANICS IN EXCESS OF EIGHT HOURS IN ANY ONE CALENDAR DAY, IS NOT APPLICABLE TO SUCH CONTRACTS NECESSARILY ENTERED INTO IN FOREIGN COUNTRIES WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF FOREIGN LABORERS OR MECHANICS IN THEIR PERFORMANCE. UNITED STATES GOVERNMENT CONTRACTS ENTERED INTO OR FOR PERFORMANCE IN A FOREIGN COUNTRY SHOULD CONTAIN THE "EXPRESS CONDITION" REQUIRED BY SECTION 3741, REVISED STATUTES,"THAT NO MEMBER OF (OR DELEGATE TO) CONGRESS SHALL BE ADMITTED TO ANY SHARE OR PART OF SUCH CONTRACT OR AGREEMENT, OR TO ANY BENEFIT TO ARISE THEREUPON.'

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF STATE, NOVEMBER 24, 1939:

I HAVE YOUR LETTER OF OCTOBER 9, 1939, AS FOLLOWS:

A LETTER DATED SEPTEMBER 12, 1939 ( A-ELP-CE) FROM THE CHIEF, CONTRACT EXAMINING SECTION, AUDIT DIVISION OF YOUR OFFICE, REQUESTS EXPLANATION WHY CONTRACT NO. S37FA-11 DOES NOT CONTAIN A STIPULATION THAT NO LABORER OR MECHANIC DOING ANY PART OF THE WORK CALLED FOR BY THE CONTRACT SHALL BE REQUIRED TO WORK MORE THAN EIGHT HOURS A DAY WITH A PENALTY OF FIVE DOLLARS PRESCRIBED TO BE IMPOSED UPON THE CONTRACTOR FOR EACH EMPLOYEE FOR EACH DAY ON WHICH THE EMPLOYEE WORKS MORE THAN EIGHT HOURS.

CONTRACT NO. S37FA-11 IS AN AGREEMENT OF JUNE 22, 1939, BETWEEN THE AMERICAN LEGATION AT MANAGUA, NICARAGUA, AND ONE LISANDRO VIGIL OF THAT CITY FOR THE BINDING OF THE LEGATION'S 1938 CORRESPONDENCE AT TWO DOLLARS PER VOLUME AND THE BINDING OF MISCELLANEOUS BOOKS AND OTHER MATTER AT PRICES TO BE AGREED UPON, THE LEGATION TO FURNISH CERTAIN BINDING MATERIALS. IN ALL PROBABILITY THE CONTRACTOR IN THIS CASE WILL PERFORM PERSONALLY ALL OF THE WORK, WITHOUT OCCASION FOR THE HIRE BY HIM OF LABORERS AND MECHANICS TO BIND THE LEGATION'S CORRESPONDENCE, AND IF THIS ASSUMPTION IS CORRECT THE CONTRACT DOES NOT COME WITHIN THE SCOPE OF THE EIGHT-HOUR LAW (ACT OF JUNE 19, 1912, 37 STAT. 137). THE FACTS IN THIS REGARD WILL BE ASCERTAINED.

HOWEVER, THE RAISING BY THE AUDIT DIVISION OF THE QUESTION IN THIS PARTICULAR CASE IMPELS ME TO INQUIRE WHETHER YOU CONSTRUE THE PROVISIONS OF THE ACT OF JUNE 19, 1912, TO HAVE APPLICATION TO CONTRACTS FOR BINDING WORK AT THE LARGER OFFICES IN THE FOREIGN SERVICE, AND TO OTHER CONTRACTS IN FOREIGN COUNTRIES INVOLVING DEFINITELY THE EMPLOYMENT OF LABORERS OR MECHANICS BY THE CONTRACTOR, AS FOR EXAMPLE AGREEMENTS COVERING THE REPAIR OR ALTERATION OF BUILDINGS, MOVING OF FURNITURE AND EQUIPMENT IN CONNECTION WITH CHANGES OF QUARTERS, OR WINDOW WASHING. THE FUTILITY OF ATTEMPTING TO APPLY TO THE EMPLOYMENT OF LABOR IN FOREIGN COUNTRIES THE PROVISIONS OF THE EIGHT-HOUR LAW OF 1912 IS PATENT. THAT ENACTMENT IS MANIFESTLY FOR THE PROTECTION OF AMERICAN LABOR, THE INTERESTS OF WHICH ARE IN NO WAY PREJUDICED BY CONTRACTS FOR WORK WHICH IS, AND MUST BE, PERFORMED IN FOREIGN COUNTRIES AND UNDER THE PROVISIONS OF FOREIGN LAW AND REGULATIONS. I AM CONFIDENT THAT YOU WILL RULE THAT THE PROVISIONS OF THE AMERICAN EIGHT-HOUR LAW ARE NOT FOR APPLICATION EITHER IN THE CASE OF THIS PARTICULAR CONTRACT AT MANAGUA OR IN GENERAL WITH RESPECT TO CONTRACTS IN THE SAME CATEGORY AT OTHER FOREIGN POSTS.

THE RAISING BY THE AUDIT DIVISION OF THE SEPARATE QUESTION OF NONINCLUSION IN CONTRACT NO. S37FA-11 OF A CONDITION THAT NO MEMBER OF CONGRESS SHALL BE ADMITTED TO THE BENEFITS OF THE TRANSACTION, ALSO BRINGS UP A QUESTION WITH RESPECT TO WHICH YOUR DECISION IS REQUIRED FOR OUR FUTURE GUIDANCE. THE POSSIBILITY OF PARTICIPATION BY ANY MEMBER OF CONGRESS IN THE BINDING CONTRACT AT MANAGUA IS, OF COURSE, SO REMOTE THAT I AM CERTAIN YOU WILL AGREE THAT IT MAY BE DISMISSED. I CONSIDER IT UNNECESSARY AND INADVISABLE TO APPROACH THE CONTRACTOR FOR A SUPPLEMENTAL AGREEMENT INCORPORATING THE STATUTORY REFERENCE IN QUESTION, AND I TRUST THAT YOU WILL CONCUR IN THIS VIEW SO FAR AS THIS PARTICULAR CONTRACT FOR BINDING WORK AT MANAGUA IS CONCERNED.

OF GREATER IMPORTANCE IN CONNECTION WITH THE APPLICATION OF SECTION 3741 OF THE REVISED STATUTES IS THE FACT THAT THE FORM OF LEASE PRESCRIBED AS A MODEL BY THE FOREIGN SERVICE REGULATIONS DOES NOT INCLUDE A CLAUSE EXCLUDING MEMBERS OF CONGRESS FROM ANY BENEFITS OF THE LEASE, AND SO FAR AS I AM AWARE, THAT SECTION OF THE LAW HAS NEVER BEEN CONSTRUED AS HAVING APPLICATION TO DIPLOMATIC AND CONSULAR LEASES IN FOREIGN COUNTRIES. THAT AS IT MAY, THE FACT IS THAT PRACTICALLY NONE OF THE LEASES FOR OFFICE OR RESIDENCE QUARTERS IN THE FOREIGN SERVICE, WHETHER THEY FOLLOW THE LINES OF THE MODEL LEASE IN THE REGULATIONS OR WHETHER THEY ARE IN SOME SPECIAL FORM REQUIRED BY LOCAL LAW OR CUSTOM, INCLUDE ANY REFERENCE TO PARTICIPATION BY MEMBERS OF CONGRESS. IN VIEW OF THE FOREGOING FACTS I TRUST THAT YOU WILL NOT NOW FIND IT NECESSARY TO OBJECT TO THE LONG- STANDING PRACTICE OF OMITTING REFERENCE TO SECTION 3741 OF THE REVISED STATUTES FROM FOREIGN SERVICE LEASES. IF YOU SHOULD FIND THAT YOU MUST TAKE THE POSITION THAT SOME SUCH PROVISION MUST BE INCLUDED IN ALL FOREIGN SERVICE LEASES AND SIMILAR CONTRACTS, I AM IMPELLED, IN VIEW OF THE LONG PERIOD DURING WHICH CONTRACTS WITHOUT SUCH A PROVISION HAVE NOT BEEN QUESTIONED, TO ASK THAT THE ENFORCEMENT OF THIS RULE BE DELAYED FOR SUFFICIENT TIME TO PERMIT OF THE CONSIDERATION BY CONGRESS OF THE ADVISABILITY OF AMENDING THE LAW. NOT ONLY IS IT TRUE THAT THE OPPORTUNITIES FOR IRREGULAR TRANSACTIONS ON THE PART OF MEMBERS OF CONGRESS IN CONNECTION WITH FOREIGN SERVICE LEASES ARE SO REMOTE AS TO WARRANT NO REASONABLE ANXIETIES, BUT IN FOREIGN EYES DEFINITE INJURY IS DONE TO THE DIGNITY OF THIS GOVERNMENT BY THE IMPLICATION WHICH SUCH A CONTRACTUAL PROVISION WOULD CARRY OF A POSSIBLE LACK OF CONFIDENCE IN THE INTEGRITY OF INDIVIDUAL MEMBERS OF THE UNITED STATES CONGRESS.

IN CONNECTION WITH THE THIRD POINT BROUGHT UP BY THE LETTER FROM YOUR OFFICE UNDER ACKNOWLEDGMENT, THE LEGATION AT MANAGUA IS BEING REQUESTED TO SUBMIT STANDARD FORM 1036 FOR FILING WITH CONTRACT NO. S37FA-11.

THE ACT OF JUNE 19, 1912, 37 STAT. 137, REFERRED TO AS THE EIGHT HOUR LAW, PROVIDES IN SECTION 1 "THAT EVERY CONTRACT HEREAFTER MADE TO WHICH THE UNITED STATES * * * IS A PARTY, AND EVERY SUCH CONTRACT MADE FOR, OR ON BEHALF OF THE UNITED STATES, * * * WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL CONTAIN A PROVISION THAT NO LABORER OR MECHANIC DOING ANY PART OF THE WORK CONTEMPLATED BY THE CONTRACT, * * * SHALL BE REQUIRED OR PERMITTED TO WORK MORE THAN 8 HOURS IN ANY ONE CALENDAR DAY UPON SUCH WORK; * * *"

AS TO THE APPLICATION OF THE ACT OF GOVERNMENT CONTRACTS GENERALLY SEE 17 COMP. GEN. 937; 18 COMP. GEN. 19; 18 ID. 337; ID. 646; ID. 672. LITERALLY ACCEPTED, THE TERMINOLOGY OF THE ACT UNQUESTIONABLY IS SUFFICIENTLY BROAD TO EMBRACE CONTRACTS AND AGREEMENTS MADE IN THE NAME OR ON BEHALF OF THE UNITED STATES IN FOREIGN COUNTRIES AS WELL AS AT HOME, REGARDLESS OF DIVERSE LABOR AND SOCIAL CONDITIONS IN OTHER COUNTRIES. BUT THE COURTS HAVE HELD THAT IN CONSTRUING OR CONSIDERING THE APPLICATION OF A STATUTE, IT IS PERMISSIBLE TO LOOK TO ITS EVIDENT SPIRIT AND PURPOSE AS WELL AS TO THE STRICT LETTER OF THE LAW; THAT THE STRICT LETTER MUST YIELD TO ITS EVIDENT SPIRIT AND PURPOSE WHEN THIS IS NECESSARY TO GIVE EFFECT TO THE INTENT OF CONGRESS; THAT UNJUST OR ABSURD CONSEQUENCES ARE, IF POSSIBLE, TO BE AVOIDED; THAT GENERAL TERMS SHOULD BE SO LIMITED IN THEIR APPLICATION AS NOT TO LEAD TO OPPRESSION, INJUSTICE, OR AN ABSURD CONSEQUENCE; THAT IT WILL ALWAYS BE PRESUMED THAT THE LEGISLATURE INTENDED EXCEPTIONS TO ITS LANGUAGE WHICH WOULD AVOID RESULTS OF THIS CHARACTER; THAT THE REASON OF THE LAW IN SUCH CASES SHOULD PREVAIL OVER ITS LETTER; AND THAT CONSTRUCTIONS OF STATUTES ARE TO BE MADE ACCORDING TO THE INTENTION OF THE MAKERS, AND SOMETIMES ARE TO BE EXPOUNDED AGAINST THE LETTER TO PRESERVE THE INTENT. SEE FLEISCHMANN CONSTRUCTION COMPANY V. UNITED STATES, 270 U.S. 349, 360; MCKEE V. UNITED STATES, 164 U.S. 287, 293; UNITED STATES V. KIRBY, 7 WALL. 482, 486; MANKEL V. UNITED STATES, 19 CT.1CLS. 295, 300. SEE, ALSO, THE ATTORNEY GENERAL'S OPINION OF AUGUST 8, 1939, TO THE PRESIDENT, RELATIVE TO THE APPLICATION OF THIS EIGHT-HOUR LAW.

APPLYING THESE RECOGNIZED CANONS OF STATUTORY CONSTRUCTION, I READILY AGREE THAT THE EIGHT-HOUR LAW OF JUNE 19, 1912, WAS NOT INTENDED TO AND DOES NOT APPLY TO CONTRACTS NECESSARILY ENTERED INTO ON BEHALF OF THE UNITED STATES IN FOREIGN COUNTRIES WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF FOREIGN LABORERS OR MECHANICS IN THEIR PERFORMANCE. IT HAS BEEN POINTED OUT IN DECISIONS OF THIS OFFICE AND OPINIONS OF THE ATTORNEYS GENERAL THAT THE UNDERLYING PRINCIPLE OF THE 8-HOUR LABOR LEGISLATION IS TO CONFER UPON WORKMEN THE BENEFITS, PHYSICAL AND MORAL, SUPPOSED TO FLOW FROM A REDUCTION OF THEIR LABOR TO 8 HOURS A DAY. TO INTERPRET THE SUBJECT STATUTES AS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN FOREIGN COUNTRIES BY FOREIGN LABORERS WOULD LEAD IMMEDIATELY TO THE ABSURD CONSEQUENCE THAT THE CONGRESS WAS UNDERTAKING TO LEGISLATE FOR THE "PHYSICAL AND MORAL" BENEFIT AND PROTECTION OF LABORERS IN FOREIGN COUNTRIES. ALSO, SUCH AN APPLICATION OF THE STATUTE MIGHT EASILY LEAD TO SERIOUS DIFFICULTIES IN EFFECTING CONTRACTS FOR NECESSARY SERVICES IN COUNTRIES WHERE SOCIAL AND BUSINESS CONDITIONS AND CUSTOMS DIFFER WIDELY FROM OUR OWN.

ACCORDINGLY, WHEN IT IS NECESSARY FOR YOUR DEPARTMENT TO ENTER INTO CONTRACTS IN FOREIGN COUNTRIES WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF FOREIGN COUNTRIES WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF FOREIGN LABORERS OR MECHANICS, THIS OFFICE WILL NOT BE REQUIRED TO QUESTION SUCH CONTRACTS BY REASON OF FAILURE TO INCLUDE THE STIPULATIONS REQUIRED BY THE ACT OF JUNE 19, 1912.

A DIFFERENT QUESTION IS PRESENTED AS TO THE INCLUSION IN SUCH CONTRACTS OF THE STIPULATION REQUIRED BY SECTION 3741, REVISED STATUTES, WHICH PROVIDES AS FOLLOWS:

IN EVERY SUCH CONTRACT OR AGREEMENT TO BE MADE OR ENTERED INTO, OR ACCEPTED BY OR ON BEHALF OF THE UNITED STATES, THERE SHALL BE INSERTED AN EXPRESS CONDITION THAT NO MEMBER OF (OR DELEGATE TO) CONGRESS SHALL BE ADMITTED TO ANY SHARE OR PART OF SUCH CONTRACT OR AGREEMENT, OR TO ANY BENEFIT TO ARISE THEREUPON. RELATED SECTIONS OF THE REVISED STATUTES ARE SECTION 3739, WHICH PROHIBITS ANY MEMBER OF OR DELEGATE TO CONGRESS FROM DIRECTLY OR INDIRECTLY UNDERTAKING, EXECUTING, HOLDING OR ENJOYING, IN WHOLE OR IN PART, ANY CONTRACT OR AGREEMENT MADE OR ENTERED INTO ON BEHALF OF THE UNITED STATES; SECTION 3740, WHICH SPECIFIES EXEMPTIONS TO THE PRECEDING SECTION; AND SECTION 3742, WHICH PRESCRIBES PENALTIES AGAINST OFFICERS OF THE GOVERNMENT CONTRACTING WITH A MEMBER OF OR DELEGATE TO CONGRESS.

SECTIONS 3739-3742 OF THE REVISED STATUTES ARE IDENTICAL WITH THE ACT OF APRIL 21, 1808, 2 STAT. 484, WHICH WAS AMENDED BY THE ACT OF FEBRUARY 27, 1877, 19 STAT. 249, SO AS TO MAKE IT APPLICABLE TO DELEGATES TO CONGRESS. ATTORNEY GENERAL LEGARE (4 OP. ATTY. GEN. 47, 48) STATED THAT THE OBJECT OF THE ACT OF APRIL 21, 1808, WAS "TO PREVENT JOBBING BETWEEN MEMBERS OF THE LEGISLATIVE AND THE EXECUTIVE, FOR THE PECUNIARY ADVANTAGE OF THE FORMER.' ALSO, SEE 26 OP. ATTY. GEN. 537; 37 ID. 68; AND 39 ID. ( OP. NO. 46). IN UNITED STATES V. DIETRICH, 126 FED. 671, THE COURT STATED WITH RESPECT TO THESE SECTIONS OF THE REVISED STATUTES:

WE THINK IT IS ENTIRELY CLEAR THAT THE PURPOSE AND EFFECT OF THIS LEGISLATION IS TO ABSOLUTELY INHIBIT ALL CONTRACTUAL RELATIONS WITH THE UNITED STATES UPON THE PART OF ANY MEMBER OF OR DELEGATE TO CONGRESS THROUGH "ANY CONTRACT OR AGREEMENT MADE OR ENTERED INTO IN BEHALF OF THE UNITED STATES, BY ANY OFFICER OR PERSON AUTHORIZED TO MAKE CONTRACTS ON BEHALF OF THE UNITED STATES," SAVE IN THE INSTANCES SPECIFICALLY EXCEPTED BY SECTION 3740. THE COMPREHENSIVE CHARACTER OF THE INHIBITION IS MORE APPARENT WHEN IT IS CONSIDERED THAT IT IS NOT CONFINED TO CONTRACTS OR AGREEMENTS OBTAINED OR HELD THROUGH THE EXERCISE OF THE INFLUENCE INCIDENT TO MEMBERSHIP OF OR DELEGATESHIP TO CONGRESS, OR TO THOSE WHICH ARE NOT FAIR TO THE UNITED STATES, OR TO THOSE WHICH GIVE AN UNDUE ADVANTAGE TO A MEMBER OF OR DELEGATE TO CONGRESS. IT PLAINLY INCLUDES "ANY CONTRACT OR AGREEMENT," NO MATTER HOW FAIRLY OBTAINED OR HELD, HOW REASONABLE IN ITS TERMS, OR HOW ADVANTAGEOUS TO THE UNITED STATES. THE INHIBITION IS NOT ALONE AGAINST UNDERTAKING OR EXECUTING--- THAT IS, MAKING OR ENTERING INTO -- SUCH A CONTRACT OR AGREEMENT, BUT ALSO AGAINST HOLDING OR ENJOYING ONE- -- THAT IS, HAVING OR RETAINING THE TITLE THERETO OR RECEIVING THE BENEFITS THEREOF. * * * A SUFFICIENT REASON FOR SUCH LEGISLATION IS THAT IT TENDS TO PRESERVE THE INDEPENDENCE OF THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT, AND TO FREE EACH FROM THAT INFLUENCE WHICH MIGHT COME TO BE EXERTED OVER IT BY THE OTHER IF THE OFFICERS OF THE EXECUTIVE BRANCH, ACTING ON BEHALF OF THE GOVERNMENT, COULD FREELY CONTRACT WITH MEMBERS OF AND DELEGATES TO CONGRESS. THE PURPOSE OF THE STATUTE IS TO EFFECTUALLY CLOSE THE DOOR TO THE TEMPTATION WHICH IS INCIDENT TO CONTRACTUAL RELATIONS BETWEEN THE GOVERNMENT AND MEMBERS OF CONGRESS. * * *

THE STATUTE IN QUESTION IS CLEAR AND UNAMBIGUOUS AND REQUIRES NO CONSTRUCTION. IT APPLIES TO ALL CONTRACTS ENTERED INTO OR ACCEPTED BY OR ON BEHALF OF THE UNITED STATES AND CONTEMPLATES OR SANCTIONS NO EXCEPTIONS OTHER THAN THOSE STATED IN SECTION 3740. AS STATED BY ATTORNEY GENERAL CUMMINGS (37 OP. ATTY. GEN. 368, 373) WITH REFERENCE TO PRIOR OPINIONS UNDER THE STATUTE:

* * * THE CONCLUSION WAS THAT ALL CONTRACTS OR AGREEMENTS, SAVE AS SPECIFIED IN THE ACT, ARE PROHIBITED AND THAT THE STATUTE, BEING UNAMBIGUOUS, IS NOT SUBJECT TO A CONSTRUCTION WHICH MIGHT NARROW ITS APPLICATION. THERE APPEARS NO BASIS FOR CONSTRUING SECTION 3741, REVISED STATUTES, AS INAPPLICABLE TO CONTRACTS ENTERED INTO OR FOR PERFORMANCE IN A FOREIGN COUNTRY AND WHILE IT MAY BE CONCEDED THAT PARTICIPATION BY A MEMBER OF OR DELEGATE TO CONGRESS IN SUCH A CONTRACT MAY BE REMOTE AND IMPROBABLE, SUCH PARTICIPATION IS NOT IMPOSSIBLE. CONSEQUENTLY, SUCH CONTRACTS SHOULD CONTAIN THE ,EXPRESS CONDITION" REQUIRED BY SECTION 3741.

IN VIEW OF YOUR REPRESENTATIONS TO THE EFFECT THAT IT HAS LONG BEEN THE ADMINISTRATIVE PRACTICE TO PREPARE FOREIGN SERVICE LEASES AND CONTRACTS WITHOUT REFERENCE TO SECTION 3741, AND WITH THE UNDERSTANDING THAT YOU WILL PRESENT FOR THE CONSIDERATION OF THE CONGRESS THE ADVISABILITY OF AMENDING THE LAW SO AS TO EXCEPT SUCH CONTRACTS THEREFROM, THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS UNDER SUCH FOREIGN SERVICE CONTRACTS ENTERED INTO DURING THE CURRENT FISCAL YEAR SOLELY BECAUSE OF THE FAILURE TO INCLUDE THEREIN THE "EXPRESS CONDITION" REQUIRED BY SECTION 3741, REVISED STATUTES.