In Atkin v. Kansas (191 U. S. 207, 224), the court summed up its conclusion sustaining the constitutionality of the Kansas act as follows:

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* * We rest our decision upon the broad ground that the work being of a public character, absolutely under the control of the State and its municipal agents acting by its authority, it is for the State to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not, by its regulations, infringe the personal rights of others; and that has not been done."

In the opinion of the Justices (208 Mass. 619, 623), the court gave the following reasons for sustaining a similar act of the Legislature of Massachusetts:

**

* because it is in the power of the proprietor of a business to prescribe the methods in accordance with which it shall be conducted. This conclusion is supported by Atkin v. Kansas, 191 U. S. 207."

In Ellis v. United States (206 U. S. 246, 255, 256), the court sustained the act of August 1, 1892, upon the grounds stated in Atkin v. Kansas, supra, and added:

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* * Congress, as incident to its power to authorize and enforce contracts for public works, may require that they shall be carried out only in a way consistent with its views of public policy, and may punish a departure from that way. It is true that it has not the general power of legislation possessed by the legislatures of the States, and it may be true that the object of this law is of a kind. not subject to its general control. But the power that it has over the mode in which contracts with the United States shall be performed can not be limited by a speculation as to motives."

To the same effect is the language of Attorney General Moody in 25 Op. 441, 444, and that these views are also operative in Congress is shown by the Senate Report No. 2321, Fifty-seventh Congress, second session, quoted in 29 Op. 536 et seq.

Other Federal statutes relating to eight-hour labor are noticed in 29 Op. 372, 373, and it is only necessary to refer briefly to the naval appropriation acts of June 24, 1910

(36 Stat. 605, 628), and of March 4, 1911 (36 Stat. 1288). The former merely extended the provisions of the act of August 1, 1892, to contracts for the construction of naval vessels, to meet a ruling of the Attorney General that naval vessels, where the title has not passed to the United States, were not "public works" within the meaning of the act of August 1, 1892 (28 Op. 358, 360, 361).

The appropriation act of March 4, 1911, supra, adopted a different wording, which is similar to that in the paragraph of the fortification act now under consideration. It required the establishment of an eight-hour workday "for all employees, laborers, and mechanics engaged, or to be engaged, in the construction of the vessels named herein." This change of language, however, had no further purpose than to include those persons fabricating the parts of the vessel away from its situs, and to extend to them the benefits of the act of August 1, 1892 (29 Op. 284).

There is no evidence that Congress intended to go beyond the time employed in the work of constructing the vessel and to regulate the hours of labor outside of that period. (See 29 Op. 35.)

In the opinion to the Secretary of the Navy on December 21, 1911 (29 Op. 279), it was held that the above-mentioned act of March 4, 1911, prohibited the labor of employees, etc., more than eight hours in any one calendar day in the construction of the vessels, but there is no intimation in that opinion that the eight-hour provision extended to anything but Government work. On the contrary, the care that was taken to define what employees, etc., could be said to be engaged in the "construction of said vessels" shows that the opinion was limited to employees, etc., while engaged in work for the Government.

Answering your inquiry, therefore, the construction placed by me upon the act of June 19, 1912, relative to Government contracts is applicable to the fortification act of June 6, 1912. The provision contained in that act relative to the eight-hour law applies only to employees. laborers, and mechanics while engaged in the work of manufacturing the ammunition named therein, and does not establish any general rule governing the employees of

the contractor beyond their occupation in carrying out the work embraced in the contract with the Government.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF WAR.

EIGHT-HOUR LAW-ARTICLES OF PRINTING AND BINDING PRODUCTION.

Contracts for the purchase of the articles used in printing and binding production herein enumerated 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.

DEPARTMENT OF JUSTICE,

January 21, 1913.

SIR: I have the honor to acknowledge the receipt of your letter of the 9th instant, inclosing a letter from the Public Printer and requesting an opinion as to the application of the act of June 19, 1912 (37 Stat. 137), regulating the hours of labor on Government work to certain contracts.

The specific questions submitted are as follows:

"1. Do the provisions of the act apply to contracts for the purchase of paper manufactured according to the standard of quality fixed upon by the Joint Committee on Printing for the public printing and binding?

"2. Do the provisions of the act apply to contracts for the purchase of bookbinding leathers, bookcloths, canvas. duck, drilling, corduroy, gold leaf, aluminum leaf, thread, twine, stitching-machinery wire, glue, marbler's colors, printing inks, refined lead, tin, antimony, copper battery plates, tin foil, chemicals, cotton cloth, belts, varnish, linseed oil, cartons or containers for packing postal cards, paper boxes, and such other similar articles used in printing and binding production as may be required from time to time in the process of manufacture?

"3. Do the provisions of the act apply to the reproduction of maps, drawings, photographs, etc., by photolitho

graph, lithograph, photo-engraving, or other processes as may be required from time to time and ordered by the Public Printer in the open market or under formal contracts for use in Government publications?

"4. Do the provisions of the act apply to purchases made by the Public Printer, in the open market or under formal contracts, of printing and binding machinery generally manufactured for sale commercially or specially built upon specifications prepared for meeting a particular method of production for the Government Printing Office? "

In my opinion, all the contracts referred to in said questions are excepted from the purview of section 1 of said act by section 2 thereof, which provides, in part, as follows:

"Sec. 2. 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:

It is my judgment that the contracts referred to in question 4 are "for such materials or articles as may usually be bought in open market," and that the contracts referred to in questions 1, 2, and 3 are of the same class and are also for the purchase of supplies by the Government."

As said in the opinion of October 3, 1912, to the Secretary of the Navy (29 Op. 534, 543) the terms "supplies" and "such materials or articles as may usually be bought in open market," are, in a sense, synonymous. The latter term, however, appears to be the larger, including supplies and something more. In the construction of either term, however, any article or material which can fairly be said to be included, in its ordinary condition, within the class of supplies, or articles which may usually be bought in open market, is excepted from the operation of the act. no matter if it may differ in particulars from other mem

bers of the class by reason of the requirements of the specifications under which it is contracted for. The exceptions can have no other meaning and were enacted for this very purpose. For instance, paper, in its ordinary state, evi dently belongs to the class of " supplies," and it is not withdrawn therefrom because "manufactured according to the standard of quality fixed upon by the Joint Committee on Printing."

Printing presses are articles such as may ordinarily be bought in open market, and they do not cease to be printing presses because made to meet peculiar needs. They stil! remain in the excepted class, differing from their fellows in the class only because "made to conform to particular specifications."

Certain debates in the House on this subject are quoted in 29 Op. 534, supra, at pages 539 to 542. In addition, I quote the following pertinent remarks by Members of the House on this subject, it being premised that Mr. Wilson, of Pennsylvania, was in charge of the bill for the Committee on Labor:

"Mr. MADDEN. Will the gentleman be kind enough to explain what the phrase usually obtained in the open market' would mean, as he understands it?

"Mr. WILSON of Pennsylvania. Mr. Speaker, the term must of necessity be indefinite in order to accomplish the purpose and to leave as a matter of administration the accomplishment of that purpose. In the purchase of supplies, for instance, contracts for which the Government enters into, it is an impossibility to follow those things back to the original source of their production in many cases and yet they may usually be bought in the open market. It would be difficult to specify in a bill just the number of articles and the kind of articles that would be included in that kind of a condition, and it can only be left as a matter of administration, unless you propose to include the production of all supplies in an eight-hour proviso, which is not the intent or purpose of the committee.

"Mr. MADDEN. Let me put a concrete question to the gentleman and ask him to explain it. Suppose that the gentleman himself entered into a contract with the Govern