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March 10, 1941

Since Attorney General Sargent's opinion was the only authority cited in support of the above proposition, it should be noted that Attorney General Sargent's opinion dealt, not with the power of the Secretary of the Treasury to delegate authority to the Under Secretary or assistant secretaries of the Treasury, but rather with his power to delegate them to the Director of Customs, the head of a particular bureau of the Treasury. In fact, Attorney General Sargent had expressly stated in his opinion (35 Op. Atty. Gen. 15, 20):

It is my understanding that in the organization and operations of the Treasury a full measure of discretion and judgment, in connection with many matters, has been exercised by the Undersecretary, since the creation of that office, and by the Assistant Secretaries for many years. The fact that this has been going on for a long time without question or challenge by Congress, or by the courts, is persuasive evidence of its propriety and legality.

It would seem, furthermore, that Attorney General Cummings did not intend his opinion to be a flat ruling that all administrative regulations bearing on the rights or conduct of private citizens are invalid unless they had been signed personally by the Secretary of the Department. On the contrary, his opinion seems to have stressed, not that the proposed delegation by the Secretary of Commerce was illegal, but rather that it would be less productive of any doubt as to the legality of the regulations if the Secretary signed them personally. Thus, he specifically declared in his opinion:

The theory underlying the vesting in an executive officer of numerous duties, varying in importance, is not that he will personally perform all of them, but rather that he will see to it that they are performed, the responsibility being his and he being chargeable with the result. The accomplishment of this is one of the highest responsibilities of an executive and there is not, and in reason cannot be, any set formula by which it is to be done.

The courts recognize this and will presume much in favor of the validity of an act performed by a responsible subordinate, particularly when he purports to act for, by direction of, or in the name of his superior;

After Attorney General Cummings had issued this opinion, the Secretary of Commerce, by letter of November 4, 1933, requested clarification of the opinion with particular reference to his "right to delegate to one of the Assistant Secretaries of the Department any or all of the regulatory powers and functions" exercised and performed under one of the statutes mentioned in the opinion. By letter of November 10, 1933, Attorney General Cummings replied that he had not declared the delegation of such functions to be illegal, but had "expressly stated in my opinion of October 14th that the powers and duties vested in you by the statutes which you now mention, as well as the others listed in that opinion, might properly be delegated to one of the Assistant Secretaries, in accordance with the principles indicated" and that to forestall any challenge of a determination made by an Assistant Secre

tary "it would be helpful to be able to show that the Assistant Secretary had applied in the particular case some general principle laid down by you." See also 40 Op. Atty. Gen. No. 3 (January 28, 1941).

It is my opinion, therefore, that the Secretary of the Interior has the power to delegate to the Under Secretary, the First Assistant Secretary, and the Assistant Secretary his authority to perform any of his duties, including the duty of approving the special or subsidiary regulations applicable to the various parks and monuments under the jurisdiction of the National Park Service.1

Approved:

HAROLD L. ICKES,

Secretary of the Interior.

BROWN AND ROOT, INC., AND MCKENZIE CONSTRUCTION

COMPANY

Decided March 12, 1941

CONTRACTS-EIGHT-HOUR LAW-VIOLATIONS

EXCUSABILITY IN EMERGENCY.

A requirement of mere business convenience or pecuniary advantage does not constitute an "emergency" relieving a contractor of the penalty for a violation of the eight-hour law. The necessity of repairing a dangerously weak tower, however, does constitute an emergency "caused by * danger to life,"

and no penalty should be imposed for overtime employment in such work. WIRTZ, Under Secretary:

On December 5, 1936, the United States and Brown and Root, Inc., and the McKenzie Construction Company entered into a contract (I2r-6809) covering items 1 to 55, inclusive, of the schedule of specifications, No. 702, made a part of the contract for the construction of Marshall Ford Dam, Colorado River Project, Texas. Article 11 of the contract provides in section (c):

EIGHT-HOUR LAW.-No laborer or mechanic doing any part of the work contemplated by this contract, in the employ of the contractor or any subcontractor contracting for any part of said work contemplated, shall be required or permitted to work more than eight hours in any one calendar day upon such work at the site thereof. For each violation of the requirements of this article a penalty of five dollars shall be imposed upon the contractor for each laborer or mechanic for every calendar day in which such employee is required or permitted to labor more than eight hours upon said work, and all penalties thus imposed shall be withheld for the use and benefit of the Government: Provided, That this stipulation shall be subject in all respects to the exceptions and provisions of the United States Code, title 40, sections 321 and 324, relating to hours of labor. The contractor appeals from Findings of Fact Nos. 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 15, and 16 made by the construction engineer concerning violations of the 8-hour law.

1 See 40 Op. Atty Gen. 6 (March 12, 1941) confirming the interpretation accorded by this opinion to the Attorney General's opinion of October 14, 1933. [EDITOR.]

March 12, 1941

1. On November 30, 1937, the construction engineer made Findings of Fact No. 3, covering the cases of 26 workers who were required or permitted to work in excess of eight hours. In accordance with section 11 (c) of the contract the sum of $130, representing a penalty of $5 for each violation of the 8-hour law, was withheld from the payments to which the contractor was entitled under the contract. In a letter dated September 21, 1940, the contractor appeals from the imposition of such penalty in 25 cases and a claim for refund of $125 has been made, the contractor stating that in 25 cases the overtime work was required because of an "emergency." The contractor states:

A strike of electrical workers had not only left us short of qualified men but the electrical work had fallen behind schedule while we were without any men. A vital transmission line between dam and gravel plant was being erected, and these men were worked ten hours one shift to avoid the loss of a whole day's production the following day.

The construction engineer in his Findings of Fact states:

The contractor advised that on account of the strike called by the electricians' union the force was short of qualified workers. The facts do not support this contention as five days after the strike occurred the number of electrical workers employed exceeded the number employed previous to the strike. The first date on which workers were required to work in excess of 8 hours was October 23, 1937, or approximately 15 days after the strike was called. No extraordinary emergency existed at the time the violations occurred which required employment in excess of the eight-hour calendar day.

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The contractor has stated that the employment of the electrical workers and laborers on October 23, 1937 and November 3, 1937 in excess of eight hours per day was necessary in order to provide additional electrical service to the aggregate processing plant and that there was a shortage of qualified men for the work. This did not constitute an extraordinary emergency, and the shortage of qualified workers is not borne out by the facts.

The circumstances do not constitute an "extraordinary emergency" within the meaning of the 8-hour law. Section 325 of Title 40, United States Code (see section 11 (c) of the contract), lists as examples of emergencies those caused by famine, flood, danger to life, property, etc. The Supreme Court held in United States v. Garbish, 222 U. S. 257, 260, that "* no mere requirement of business convenience or pecuniary advantage is an extraordinary emergency within the meaning of the act." See Ellis v. United States, 206 U. S. 246, 257; 26 Op. Atty. Gen. 278.

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The penalty, therefore, was properly imposed. The appeal from Findings of Fact No. 3 is dismissed and the claim for refund for the amount deducted is disallowed.

2. On May 9, 1938, the construction engineer made Findings of Fact No. 4, that in 31 cases men were required or permitted to work in excess of eight hours during February, March and April, 1938. In accord

ance with said provision of the contract, the sum of $155, representing a penalty of $5 for each violation of the 8-hour law, was withheld from payments to which the contractor was entitled under the contract.

It appears that these findings were incorrect as a result of error in the pay rolls submitted by the contractor. A letter of July 7, 1938, from the Commissioner to the Chief Engineer and a letter of July 13, 1938, from the Acting Chief Engineer to the Construction Engineer direct that an additional finding be made, recalling and vacating the prior Findings of Fact No. 4, and a voucher be drawn in the sum of $155 to be submitted to the Comptroller General for payment. On July 19, 1938, Findings of Fact No. 7 were made, amending Findings of Fact No. 4. Since Findings of Fact No. 4 have been vacated, the appeal therefrom is dismissed.

3. On June 16, 1938, the construction engineer made Findings of Fact No. 5, that during the month of May 1938, in 51 cases workers were required or permitted to work in excess of eight hours. In accordance with provision 11 (c) of the contract the sum of $255, representing a penalty of $5 for each violation of the 8-hour law, was withheld from the payments to which the contractor was entitled under the contract. An appeal has been taken from the imposition of such penalty in 18 cases and a claim for refund has been made. In the letter of September 21, 1940, the contractor states:

At this time, the main track of the cableway suddenly failed, and it was necessary to take down the old cable and erect a new one. We did not have enough riggers to work three shifts per day, and could not obtain them in time to do us any good. As mentioned above, the job was shut down until the repairs could be made, throwing close to a thousand men out of work. We claim that on any construction job, this constitutes an emergency. This work accounted for 50 violations. The remaining one was a cement finisher who worked over when his relief did not report. The work had to be done as the cement would have been too hard to finish before another man could be found. This also constitutes a genuine emergency.

It appears that the overtime was required for reasons of business convenience. The same rules of law discussed under point one apply here, that no mere requirement of business convenience or pecuniary advantage is an extraordinary emergency within the meaning of the act justifying overtime employment. United States v. Garbish, 222 U. S. 257, 260; Ellis v. United States, 206 U. S. 246, 257, 26 Op. Atty. Gen. 278. The penalty, accordingly, was properly imposed. The appeal is dismissed and the claim for refund of the amount deducted is disallowed.

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4. On July 11, 1938, the construction engineer made Findings of Fact No. 6, that during June in 10 cases workers were required or permitted to work in excess of eight hours per day. In accordance with provision 11 (c) of the contract the sum of $50, representing a penalty

March 12, 1941

of $5 for each violation of the 8-hour law, was withheld from the payments to which the contractor was entitled under the contract. An appeal has been taken with regard to seven cases from the imposition of such penalty and a claim for refund has been made. In the letter of September 21, 1940, the contractor states:

Again a rigger crew worked overtime to change a broken endless line on the cableway, so as to avoid shutting down the job with consequent loss of time to large numbers of men.

The same considerations of mere business convenience are apparent here and do not constitute an extraordinary emergency justifying overtime. The penalty, accordingly, was properly imposed. The appeal on this ground is dismissed and the claim for refund of the amount deducted is disallowed for the same reasons as stated above under point one.

5. On July 19, 1938, the construction engineer made Findings of Fact No. 7, vacating Findings of Fact No. 4, with regard to 13 violations of the 31 comprised therein. Findings of Fact No. 7 state that in 18 cases during February, March and April, workers were required or permitted to work more than eight hours per day. In accordance with provision 11 (c) of the contract, the sum of $65 was refunded from the $155 withheld under Findings of Fact No. 4, leaving a penalty of $90 withheld from payments to which the contractor was entitled under the contract. An appeal has been taken with regard to 18 cases from the imposition of such penalty and a claim for refund has been made. The contractor states in his letter of September 21, 1940:

These cases divide into two classes. The first is where repair crews worked overtime to get equipment back into use, and the second where operators "doubled over" when the man who should have relieved them did not report. Substantially all concrete at Marshall Ford was placed with one cableway. If this one machine was down, the job practically shut, down, causing hundreds of men to lose a shift. This was true whether the interruption was caused by mechanical trouble, or by failure of a key operator to report for duty. Either caused an emergency so far as the job was concerned, and we claim justified a few man-hours of overtime.

For the reasons stated under point one, supra, the penalty was properly imposed inasmuch as the circumstances do not constitute an "emergency" within the meaning of the act. The appeal on this point is dismissed and the claim for refund disallowed.

6. On October 28, 1938, the construction engineer made Findings of Fact No. 8, that in 11 cases at various times during the months of July, August and October, men were permitted or required to work more than eight hours per day. In accordance with section 11 (c) of the contract, the sum of $55, representing a penalty of $5 for each

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