90 Opinion of the Court the prior act of June 16, 1934, in order to avoid the possibility that the court might place thereon the same construction which the Comptroller General had adopted as to the 1934 act, namely, that no allowance for increased costs should be made where other possible factors, economic or otherwise, and too remote to be said to be the result of the enactment of the National Industrial Recovery Act, entered into or affected some portion of the total increased costs incurred and claimed. In other words, Congress intended in the act of 1938 by the use of the broad language "for increased costs incurred as a result of the enactment of the National Industrial Recovery Act," as stated in section 3 of that act, that judgments under the act shall be allowed upon a fair and equitable basis, and notwithstanding any provision of the act of June 16, 1934. That is to say, where the particular contractor incurred increased costs and the evidence submitted fairly and equitably established that a portion of such increased costs could fairly and equitably be said to have directly resulted from the enactment, operation, and effect of the National Industrial Recovery Act the amount of such portion should be determined on a fair and equitable basis and allowed, notwithstanding some portion of the increased costs incurred and claimed may have resulted from, or been caused by, factors, conditions, or circumstances too remote to be fairly attributable to the National Industrial Recovery Act. A study of the language of section 2 of the act of June 16, 1934, shows that this was the real intent and purpose of that act in determining the amount allowable by reason of compliance, but the Comptroller General had not followed it but had held that where there was a lack of full compliance with a code or an agreement no amount whatever should be allowed. This condition was fully pointed out to the Congressional Committees. Of course an expense which is the result of an act, and intended to be reimbursed to the contractor, must be the direct result of the act specified, and not merely indirectly or remotely caused or brought about by it. In this respect the act of 1934 relating to compliance and the act of 1938 relating to the enactment of the National Industrial Recovery Act are the same in effect. But increased costs may in part be the Opinion of the Court 98 C. Cls. result of the enactment of the National Industrial Recovery Act and in part the result of other causes. Although the whole amount of increased costs for labor and materials may have been brought about and made necessary as a result of the enactment of the National Industrial Recovery Act, the particular contractor may not submit, or be able to submit, sufficient proof to fairly and equitably show that the whole of such expense did in fact so result. But the extent to which he does establish the fact that an expense was a direct result of the National Industrial Recovery Act, he is entitled to judgment to that extent. It was doubtless for this reason that Congress inserted in the 1938 act the provision of section 4 that "This act shall not be interpreted as raising any presumption or conclusion of fact or law but shall be held solely to provide for trial upon facts as may be alleged." The defendant makes a further argument, with reference to the first wage increase of 10 cents an hour on October 18, 1933, that the proviso to Section 1 of the act of June 25, 1938, shows clearly that it was not the intent of Congress in the enactment of the 1938 Act for suits in this court to allow recovery on claims of contractors of a type different from the type of claims which could be presented to and allowed by the Comptroller General under the act of June 16, 1934. That since the only type of claims which could be presented and allowed under the 1934 Act were claims "for increased costs incurred by reason of compliance on and after August 10, 1933, with a code or codes approved by the President under Section 3 of the National Industrial Recovery Act of June 16, 1933, or by reason of compliance with an agreement with the President under Section 4 (a) of the National Industrial Recovery Act," it is clear from the proviso of the 1938 Act and the legislative history of that Act that Congress did not intend to open up a whole new field of claims nor to authorize allowance of any recovery on claims unrelated to any approved code or the President's Agreement. This argument of the defendant seeks to read into the proviso to Section 1 of the act of 1938 an exception to the clear language of Section 1 authorizing the court to allow recovery for all increased costs incurred "as a result of the enactment of the National Industrial Recovery Act" so as to 18 Opinion of the Court limit the authority of the court in any case to allow a claim and enter judgment therefor to only those cases where there had been compliance or proof of an intention or willingness to comply with a code or the Reemployment Agreement. We can find no support for this position in any language of the Proviso or of the Act or its history and we think the contention is answered in the negative by the language of the act of 1938 as a whole. In the first place, the court cannot read an exception into the provisions of Section 1 of the 1938 Act which precedes the proviso, which the language of the proviso does not clearly contain, United States v. McElvain, 272 U. S. 633, 639; Fasulo v. United States, 272 U. S. 620, 628; second, the proviso admittedly does not exclude this case from the authority of the court to hear, determine and enter judgment, for this plaintiff did file a claim under the 1934 Act. Third, the proviso must be strictly construed and cannot be extended by implication, and when so construed it is only a limitation on the jurisdiction to entertain and consider suits on claims for increased costs by a certain class of contractors, not a limitation on the authority of the court, in cases clearly within its jurisdiction, to allow and enter judgment for only those increased costs incurred as a result of compliance. In other words, where the court has jurisdiction of the particular case, its authority under Section 1, including the proviso, is limited only by the provision that the increased costs must be shown to have been incurred "as a result of the enactment of the National Industrial Recovery Act." When the court has jurisdiction under this provision its authority to allow on the merits extends to any increased cost shown to have been the result of the enactment of the National Industrial Recovery Act whether or not there had been compliance, or an effort to comply, with an approved code or the Reemployment Agreement. We think there is nothing in the language of the proviso that would require or warrant any other conclusion or limitation. Fourth, the only purpose or effect of the proviso, as its language shows, was to limit the consent to be sued to those contractors who had filed a claim with an administrative department.concerned in accordance with Section 4 of the act Opinion of the Court 98 C. Cls. of 1934 (which had been in effect for a period of 4 years prior to the passage of the 1938 Act) where their contracts had been completed prior to that time, except as to contractors who had incurred increased costs prior to August 10, 1933, and except, also, as to those contractors who had incurred increased costs under contracts which were not completed six months prior to the pasasge of the 1938 Act. It seems plain, therefore, that Congress did not intend by the proviso in Section 1 of the 1938 Act to limit the authority of the court in regard to the basis for the allowance of increased costs on the merits as specifically stated and defined in the enacting provision of Section 1. If the proviso does limit the authority of the court as to the basis for allowance in cases within its jurisdiction, i. e., to compliance with an approved code or an agreement, the proviso is in direct conflict with the whole of the enacting provision of the section which precedes it as to the basis for the allowance and if so construed it would substitute an entirely different basis in all cases from that specifically provided in the enacting clause. Defendant's argument on this phase of the case would make it necessary for the court to use two bases for allowances and judgments for increased costs in cases clearly within its jurisdiction; first, in those cases where the contractor has filed a claim prior to the enactment of the 1938 Act, the basis would be "compliance with an approved code or the Reemployment Agreement", and second, in those cases where the contractor had not filed a claim prior to 1938 who had increased costs between June 16 and August 10, 1933, or had increased costs under a contract completed 5 months and 29 days before the enactment of the act of June 25, 1938, or at any time thereafter, the basis for the allowance and judgment would be "the result of the enactment of the National Industrial Recovery Act." The proviso in Section 1 of the 1938 Act plainly does not limit the authority of the court to allow and enter judgment to those items of an administrative claim previously filed under the 1934 Act but clearly says that the jurisdiction "to hear, determine, and enter judgments against the United States upon the claims of contractors" (italics ours) in cases instituted in this court "shall apply only to such contractors whose claims were presented within the limitation period defined in 90 Opinion of the Court Section 4 of the Act of June 16, 1934." (Italics ours). Section 4 of that Act which required compliance as a basis for allowance, provided that a claim must be "presented within six months from the date of approval of this Act or, at the option of the claimant within six months after the completion of the contract." Section 2 of the 1938 Act, which immediately follows the proviso in Section 1, provides that suits in this court by contractors upon claims for increased costs incurred as a result of the enactment of the National Industrial Recovery Act "may be instituted at any time within six months after the enactment of this Act or, at the option of the claimant, within six months after the completion of the contract," and (Section 3) that "judgments or decrees, if any, under this Act, shall be made upon a fair and equitable basis, and notwithstanding the bars or defenses of any alleged settlement or adjustment heretofore made, res adjudicata, laches, or any provisions of Public Act Numbered 369 as enacted on June 16, 1934." (Italics ours.) The argument of defendant amounts to an attempt to set up a bar or defense to a part plaintiff's claim based on the provisions of the act of June 16, 1934, namely, the provisions of that act, with reference to "compliance", which defense Section 3 of the 1938 Act clearly says shall not be made or considered. In view of the foregoing it seems obvious that Congress did not intend in the 1938 Act that in suits in this court "compliance" should be the basis for allowance by this court when it expressly stated that the basis for the allowance and entry of judgment shall be "the result of the enactment of the National Industrial Recovery Act." Especially is this true when it is noted, as hereinbefore set forth, that the Secretary of the Interior, the Secretary of War and the Comptroller General, clearly and specifically called the attention of the Congressional committees that considered the bills which resulted in the enactment of the 1938 act to the fact that the provisions of that Act did change the basis for allowances and judgments. A consideration of the history leading to the enactment of the 1938 Act, a good deal of which has hereinbefore been set forth and discussed in the opinion, shows conclusively, we think, that Congress was not considering a limitation on 533123-43-vol. 98-10 |