Brief for the United States — United States v. Laudani

Supreme Court brief1944

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Text

by, INDEX

Opinions below - - - - - -:~----------------------- Sh Se

Statute involved. --...-.----.--- Fgura CaS ake Aap aia

Question waged pd arg anata Seale ese 5 plaedisoneres ape

Statement ----- ; Sieiean evk nn nana seen

- Specification of errors to » be uirged.. ae caksbareigneees ==

Summary of argumen}-.--- ----,---------+------- Sasol

Argument: ,

. The view -of the majority below that ‘the statute enecom-

passes. only & ‘“‘kick-back’’ to an employer is. not sup-

ported by the language of the statute, its legislative

history, or its manifest purpose. The respondent's con-

‘ “duct is within the statute --.

", he statutory language and design -

The legistative history - see

Conclusion - - - -- --- ------------------

ats CITATIONS ~

Cases: * .

Ash Sheep Co. v. l tnited States, gi See

Bowe v. Judson C. "Burns, Inc., 1387 F. (2d) 37, overruling

- 46 F. Supp. 745-- : ; ae

Caminetti v. United States, 242 U. 8. 470 ie ee ean ae

Fleming v. Hawkeye Pearl Button Co., 113 F. (2d) 52.

* Forrestal v. Commissioner of Inte hes Revenue, 120LF. (2d)

Ea ee ’ = Peis 3

Garrison Vv. ‘Sumners, 223 Ala.’ 17. ae aps

Gooch v. United States,-297 U.S. 124... ---- See :

Helvering v. City Bank Co.. =i v. & Sareea wa

Jerome v. United States, 318 U.S. 101_--- Seed

Mackenzie v. Hare, 239 U.S. 299- - - - SG eae hie

Marwell v. Moore, 22 How. 185_..-------- eee eee

Meek v. United States, 136 F. (2d) 679__--. aE

Osaka Shosen Line v. United States, 300 U8 98 Spare:

People 'v. Desowitz, 166 7 Mise. 1, 2 N. Y. 5. " (3d) BR

_ Perkins v. Lukens Steel Co., 310 U. S. 113 c

R. F. C. v. Bankers Trust Co., 318 U. S. 163-

Spivey v. United States, 109 F. (2d) -181, cert iorari denied,

NE WE Re de nos dengan ates bp seco uh

560194—43——1 (1)

Susiediction. ..... ~~... - --- 22 o-oo nnn ee ones econ n'e+-- _@

People’v. Meyer, 167 Misc. 287, 3 N. Y:S..(2d) 870. 4. ---

. : E a

Cases—-Continued, ie. me , Pea

> United States v., American Trucking Associations, Inc., 310 ;

U. 8. 534... ee FG

‘ United States v. Carbone (Mass.)_.— . coe 19 a

. United States v. Caarlick, 26 F.Supp. 203°. "9,28 °.

United States v. City Nat. dank of Duluth, 31 F. Supp. 530 36

- United States v. Corbett, 215 U: 8. 233_...-* . 35

United States vy. Fuller; 6 Wage Hour Rept. L090... 19, 26, 28, 43°

United States yfGolder, 11 F. Supp. 870---- 0. 8, 9, 27, 28

United State~/v. McGraw, 47 F. Supp. 927 19, 26, 43

inited Séfftes v. Morley Construction Co., 98 FL (2d) 7s1,.

copforari “denied sub nom. “Maryland , Casualty Co. v.

United States, 305 U.S. 651. : é . 28

United. States v. Raynor, 302 Us 8.540. : : 35

> United States v. Warts, 303 Ul S. Alt >. 2

“— Varginia Htectric bf Ponwer Co. v. National Labor Relations

totrd, B19 T. S. 533 anaes cua 34

Woolford Realty. Co. v. Rose, VSo U, 319. ‘ Se en ee

Statutes: 5

2 Davis-Baeon Act’ (Act of? Mareh 3, Sh, c¢. 411, 46 Stat.

; - 1494, Section | | 16, 29

Amended by Act of Augus 1 30, 1935, ¢. 825, 49 Stat .

Ol GOEL S.C, 27a 2760 d) , 80, 38

National I ficdiget ris ul y" COVOTY, Act, ¢.. 00, 48 Stat, 195:,

See, 206-440 U.S.C. 406) ‘ Cot. Ma

nee 209 (40 U.S. c 409) “ 31

Act of June 1 1954, ¢. 482, 48 Stat. O4N, 10 U.S. C, 2761,

2Q7be: Ri ofan \ ' '

See. | , aes . 2,10, 14, 24, 25, 26

See. 2. pat ee 2,10; 15, 22, 25, 27, 39

‘ National Labor Relations han’ (Act of July 5, 1935, ¢. $72,.

Sees. 8 (3),9 (a), 49 Stat. 449, 452, 153 oo 0,6. Ci"

158(c), Li 59a). ; ie ee : 33

Fair Labor Standards Act (Act a June 25, AVBS, ¢. 676,

52 Stat. 1060, 29° UL S.C. 201 ef 8eq.):

see 15 OS RNa ie . 25

See. 16 (a) eeu. eg a eee +23

See, 16 (b)’ +8 ; ae . . 93°

’ - {8U. S.C. 1, ef ecg ae rae , . 20, 21,22

New York “Wick- back” statute (Laws 1934, ¢. 171). .../ “37

Miscellaneduis: mee rey,

44.0. FL R. 265.1, 265.11 265.34. ° ti

19 Comp. Gen. 576, 577-578 2 we 4 9, 28, 32

FR ree Ota. — ——— _ os 42

Executive Order No, 6252, August 1), 1933 : Sf gi

. Il

Miscellaneous Continued. 7 ~~ _ Pave

Funk & Wagnalls, New, Standard Dictionary (1937), pp. ,

2709 "tise Ndi Lek ot . 2)

Hearings, Subcommittee of S. Committee on Commerce,

S. Res..74, 73d Cong., 2d séss,, Voi. 1. °° 24, 32, 37, 38, 39,40

Hearings, Subcommittee of S. Committee on Edueation*

_. and Labor, S. Res. 228, 73d Cong., 2d ses= “Se, ae, 41

H. Rep. No. 1750, 73d Cong., 2d-sess 42

“Regulations of, Steretary ef Labor .29 ©.) PF. RL), as

* amended Feb. 3, 1942 (7 Fed. Reg. 686, 688)--See, -

. 2.3 (b) (2) (ii) MAES G3 34 :

Reorganization Play. No. IV, See. @ see note, 40 US, C.276e. 7

Ss. Rep.. Neo. 808, 74d Cong., 2d sess. ... 22 10,41

Webster's New International Dictionary (2d ed.. 1986), po” -

Bhs Bea w oem ve Sree 20

PP ie ‘ ’ ‘ Ail,

. ’ , » ¥ ° |

. ‘

" 6 .

. o ‘ ¢ .

. .

Pi .

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° @ Fear >

-— Snthe Supreme Court of the inited States

OcTOBER TERM, 1943,

- No? 71

THE UNITED States OF AMERICA, PETITIONER |

FRANK LaUpDANI

ON WRIT OF CERTIOR: 4R! TO THE UNITED STATES CIRCULT

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The majority (R. 241 248) and. dissenting (R.

248-249) opluions im the Cireuit Court of Appeals

- are reported at 134 FP. (2d) 847, The memoran-

dum opinion of the District Court overruling re-

spondent’s demurrer and motion to quash the

_indictment appears at R. 25-29.

| | ‘yoRrsprcrIoN

-The ‘judgment of the Cireuit Court of aaah

Was entered March 16, 1943 (Rk. : 200), anda

petition for rehearing was denied April 20), 1945

~_()

»)

—

(CR. 251-252). -The petition for a writ of certio-

ravi was filed May 24, 1945, and granted October 11,

1943 (R. 252). The jurisdiction ‘of this Court is

conferred by Section 240 (a) of the Judicial Code

as amended by the Act of February 13, 1925, | Se«

also Rules XL and XTIL of the Critninal Appeals

- Rules; promngated by this Court May 7, 4934 ——

STATUTE baseline

’

Section 1 of _ oA of June 13, 1834 (ce, 482, 48 %

Stat. 948, 40. U.S.C. 276b), commonly called the

** Nicek-back”’ ia provides: |

That -whoever shall induce any pe rson ent:

ployéd in, the constiuction, prosecution, or

completion of any’ public ‘building, publ

work, or building or work financed in whole

or in part-by loans or grants from the United |

States, or ti the repair thereof to give up

any. part of the compensation to which he is

entitled under his contract of employment,

by foreg, intimidation, threat of procuring

dismissal from such employment, or by any

other manner whatseever, shall be timed not

more than $5,000, or imprisoned not more

than five years, or both.’ :

“The Act is instwo sections. the second of which rew-

(40 U.S: C. 2766): ;

To aid in the enforcement of the above ‘section, th

Secretary of the ‘Treasury andthe Secretary of

Interior jointly shall make reasonable regulations. fer

subcontractor shall furnish weekly a sworn affidavit

_confractors or subcontractors en pny auch busking,

> work, ineluding a provision that cach Contractor an

| QUESTION PRESENTED

Whether the prohibition of Section 1 of the

“Kick-baek*’ Act applies to a foreman who has

canthority to hire and discharge’ employees and

‘who, acting fer his own benefit and net.on behalf

of the employer, compels them to surrender a por-

=3R Thor of their wages to hint as a prereqgisite to the

retention of thei r jobs.

| STATEMENT

Respondent and one Rossi, together with several

others, were charged in a series of imdictments

with violations of the ‘Kick-back’? Act of June

1S, 1934 CR. TEATS, 241-242), Except for differ-

enees in names of the defendants and in allega-

tions as to the names of victims, dates of. the

violations, and sums of money exacted, the counts

of the indiétments were couched. ig identiealtan-

guage CR. Wy 25-25)... They alleged that between

January 1, 1937, and May 15, 1938, there was

tinder construction at Weehawken, New Jersey, a

certain publie work known as the Weehawken

Plaza connection of the Lincoln Tunnei under the

"wie Peepers: to. ie wages: paid. e ach emp Hover during.

the pres eding week. .

(The functions of the Secretaries of the Treasury ail the

Interior under this section were transferred to the Secretary

of Labor, to be administered by hii or under his direction

Or stipervision by stich ageney in the Department of Labor

————ars te stontt designate, by Reorganization Plan No. TV.

Section effective June 30, 1940 (see note under 4a UL Ss, ¢

‘4

Hudson River frotin New’ York ‘to New Jersey;

that ‘the work was being done under a contract

between the Port of New York . Authority and

George M. Brewster & Son, Inc., the general con-

tractor, and.a subcontract between the Brewster

Company and the Cape Ann Granite e Company, ;

Tne; > for ‘the furnishing and .setting of granite

tubble facing and coping necessary in the cou-

struction of the Weehawken. Plaza connection;

that all of this public work was being financed

in part by grants from the United States; that re-

spondent was foreman for the Cape Ann Granite

Company, with authority to employ and dise harge

stonecutters and masons, and knew that the rate

of pay for such’ employees, as fixed and posted on

the work, was a certain amount per hour, and that

these employees were entitled to receive the full

- posted rate of pay without. deductions for any

purpose ; and that respondent and his‘codefend-

ants, by intimidation and threats of dismissal anid

by giving to under ‘stand. that. all persons en

ployed on the w ork wonld be required to give the

defendants parts of their true wages so long as

they were'so employed, induced certain named en-

ployees*to surrender to them parts of the com-

pensation to which the enployees were entitled for

work and labor on the publie work (R. 14-15, 26).

______ The _defendants_filed - a demurrer. (R, 19-39)

and motion to quash (R. 29°95) the indictments -

on the ground, inter. alia, that it was. not alleged

-that they ‘were the emplovers of the victims, or

that they were acting on behalf of the empleyer

in inducing the victims to give up part of the

compensation to which they were entitled (R. 19,

20,23). >The demurrer and motion-te-quash were

over riled by the judge] wearing them, in a written

opinion (R. 25-29)

The Government: elected to. proceed on five of

the indictments, containing 29 counts, and aftér a

severance as to the defendants other than respond-

* ent and Rossi these indictments were consolidated

for trial (R. 32-33). -Responde nt was convicted:

on nine of the counts in four of. the indictments .

‘tried (R. 208, 218).° and he was sentenced to

nine months” imprisonment on each count, the

sentences to run concurrently (R: 219).*

The evidence in support of the allegations of

the counts on which respondent was convicted may

be summarize ‘d as follows:

: The case Was tried before another Judie, and the same

oblection was renewed at the opening of the trial (R. 50-82),

at the close of the Government's case (R.°135-136). and at

the conclusion ‘of all the evidence. (R. 179, 183), and by a

metion in arrest of judgment (R. 210), and was in each ‘in-

stance overruled ¢R. ‘B2. 136,-180, 183-184, 210).

At the ¢ ‘lose of the trial the Governme nt c Sonera to the

(isnilssal as to respondent af all three courts of one indict-

nent and seventeen of the counts of the remaining four

indictments (R. 180-182, 208).

* Rossi was -aequitted’ on ‘all the counts submitted as to

-um (R. 208). .

£60194—43— 2

In 1936 the Port of New York Authority under-

took to construct, as part of the Lincoln Tunnel

project, certain installations at the New Jersey ap-

proach, and the United States, through the Public

Works Administration, granted ¥4,780,000,to the.

Authority to aid itr-tinancing these works hx 4-3,——

R.39;R 50). Contracts for portions of the works

were let by the Authority to George M. Brewster &

Son, Inc. (xs. G-6, G-7, R. 40), which, in turn,

“entered inte subcontracts with the Cape Ann Gran-

‘ite Company, Inc., for furnishing and setting gran-

ite rubble facing and cophig at. the Weehawken,

New Jerse ‘y, approach to the tunnel (Exs. ¢ iS, G-9,

R. 42). In accordance with the ‘require ments of

Title Ii, Section 206, of the National Industrial Re-

covery Act (June 16, 1933, «. GO, 48 Stat. 195, 204-

205; 40 U.S. e406) and regulations promulgated

. thereunder (44-C. F. R. 265.1, 265.11-265.34), both

the prime and subcontracts—th? latter by reference

_ to the former (see Ex, G-s, p. 4: Ex. G-9, pp. 1

3)—eontainedk provisions fixing minimun wage

rates for employees and requiring that a statement

of all wage-rates be posted at the site of the work

and that each employee be paid the full amount

-acerued to him, without deductions ‘or rebates (Ex.

G6, pp. 44-45; Ex. G-7, pp. 95-04), regardless

of any contractual relationship between the ene

ployer and stich employee (Ex, G-7, p. 97). |

As: foreman for the Cape Ann Granite Cem

pany .on the Weehawken approach, respondent ; |

had power to-dre and discharge employees (R. 45.

117, 453). Vietims ‘named in counts on which re-

aie

—

Rahs —

. .

spondent ‘was convicted. testified that they were —

-hired by him (R. 55, 79, 87, 92) and_ that,

of the wages they received. from the company, G

which did not differ from the posted rates, they

“kicked back" to responde nt, directly or through.

-vother workers on the job, from 25 to 35 eents for

each hour of their employment (R. 56-59, 61-63,

HS, SI-82, 84, 87-91, 93; see also Ro 4849, 97,

; 99-100). The victims were compelled by respond-

ent to make these payments as acondition of: ob-

taining and retaining their employment (R. 56-

58, 65, 88-89). The ‘ape Ann Granite Company

did not-authorize these activities on the part of

“respondent and knew nothing of. them (Rh. 48-49;

see also R. 159). | R

+, On appeal tothe Cirenit Court of Appeals for’

the Third Circuit, respondent's conviction Was

reversed and the case was remanded te the Dis-

trict, Court With directions. to quash the indict--

. ments (R. 248;°250). This decision (R. 241-248),

from which one judge’ dissented (R. 248-249),

_ was’ based upon the ground that “the facts alleged

avd proven by the government do not lay a case

within the purvie w of the statute .* .* *" (RL

242). The basis of the decision was, primarily,

‘that “the statute as written’? is confined in its

“application to a-situation where the employee

gives up er-cedes-a-portion of his ‘vontractual wage

> toor in favor of or at the instanee of the employer

or one acting for or on behalf of the-employer”® CR.

eh ae | |

243). The employer must. be. ‘enriched’? by the

giving up by the employee of a 5 apis ‘of his: com-

pensation (R. 244).°

In reaching this conclusion the majority reasoned

_as follows: The evil at-which-the

is the inducing of the employee to give up part of —

the ¢ ompensation to which he is entitled under his

“contract of employment.” The ‘‘contract of em-

ployment” means. ‘‘the contract between: the

employee und his employer.’* It is ess@tial,

therefore, to the crime defitied by the statute that

there be ‘‘the impa?rment, violation or derogation

of the employee’s conti — right with en to

the wages he i is to receive.” . The one who is “‘capa-

_ * The court,: therefore, did not find it necessary to pass

upon the contention made by respondent, as appears from

his brief in that court, that the evidence was insufficient in

other respects to convict, and consequently it did not review

the evidence in .that connection (R. 242). The brief of

‘respondent iti the Circuit Court of Appeals discloses also _

that there were other contentions as to the rejection of

eviclence, refusal of requested instructions, and modifications

of requested charges which weré not passed upon by that

court... This brief will, consequently, discués only the ques-

tion of statutory construction. upon which the decision rested.

‘Since the case will, we believe, have to go back to the

district court for a new trial because of error in the argi-

ment of the prosecutor (see footnote 9, infra, p. 13),

a be appropriate, if. the Government is right in the i .

tion which it takes in this brief, to remand the case to the

~ Circuit Court of Appeals so‘as to give that court an oppor-

tunity to pass upon the questions which it did not con-

sider, before any retrial is attempted.

*Citing nited States v. Golder, 11 F? Supp. 870, 871

(E. D. Pa.).

___portion of the-wages te-which-his-contract™ with the

“employee has received it in full, and wholly with-

ble of so offending, beatin of the requisite privity.

of contract, is the employer. ” The - employee, —

therefore, must give: up or cede to the employer,’ —

eithér directly or to someone acting for him, some

___ employer entitles him.’ (R. 243-244.) |

The majority found support for this view in the

expressed purpose of the statute, as reflected in BN

its title: “An Act to effectuate the purpose of cer-

tain statutés concerning rates of pay for labor, by

making it unlawful to prevent anyone from re-

ceiving the compensation contraeted for there-

under, and for other purposes.”’ It said: ‘So long,

therefore, as the employer pays his employees the

wages to which they are entitled under their con-

tracts of employment and the employees are not

induced. or required to give back any part of their

conipensation, it cannot be said that they have been

prevented from receiving the compensation td

whieh their contrac ‘ts of employment entitle then as

that ‘‘What happens to the compensation after the

out relation to or effect upon -his contract of em-

ployment, is a matter with which this statute does

jot purport to deal’’ (R. 244).

The legislative history was thought to leave little

__doubt tha ct ‘‘was. interided to_penalize-« éon-—

* Citing the Golder decision and United States x. harlich,

26 F. Supp. 203, 205 (E. D. Pa.), both decided by the same

judge, and 19 Comp. csi) 576, 577-578 (R. thie

» °- :

tractors who, enjoying federal work vr work feder- -

ally aided, unconscionably enrich themselves:at the

: expense of their employees in denial of their con-

es _tracts of employment” (R. 244).

- The majority also attached some: significance

———to- Section 2-(footnote ty supra, pp. 2-3), which

authorized the Secretaries of the Treasury and the

— -Interior jointly to make reasonable regulations

‘“‘for- contractors or’ subcontractors’ on the work

specified in Section 1.(R. 244-245). This provi-

sion was included, the majority said, as an. aid to

the enforcement of Section 1 (the penal provi-

sion); and it apparently felt that Section 1. for

this reason ¢ annot be given a broader coverage of

persons than Section 2. |

In further elucidation of the basis of its decision,

the ‘majority stated that ‘*nowhere-in the Act, its

title, or its legislative history is it suggested that it

was intended thereby. to reac +h an ‘extortioner or:

> * The majority stated (R..: 245) :

Of course, no distinction is to be drawn, and we make

\... none, between work for which the government directly

\_ lets a contract to which “the prevailing rate” of wage te

\. the contractor’s eg Pay attaches by virtue of the Act -.

Sof March 3, 1931, e411, $1, 46 Stat. 1494, as amended.

and federally aided work performed for other publi:

agfneies to which rates of pay to employees attach by

virtue of competent federal departmental regulations.

The “Kick-Back Act” * s broad enough to émbrace all i

work fin: wiced in whole or in part by federal funds. In

fact, the bill (S. 3041) was purposely amended in such

regard in Senate committee. See Senate Report, supra.

[S. Rep. No. 8038, 73d Cong.. 2d sess. (R. 235).] -

ree =

a _ = : 11

blackmailer (not privy to the contract of employ-

ment) merely because the persons upon whom such

an offender preys receive. their compensation as -

employees .of a . contractor doing public work

finane ‘ed in whole or in part by federal aid”; that

No greater neck Tor federal protection of weno

against the threats of extortioners or blackmailers

in, general is indicated ‘simply because their em-

ployer happens ‘to derive all o ‘a part of his ‘come

‘from work dependent . upon - federal - loans .-or

vrants’’; that ‘Afl other workers merit no less con-

sideration.’ > »It said thi it a court W as not justified

in so extending the statute, as such a construe-

tion would involve offenses which, under our fed-

eral system, have been left to the criminal admin-.

istration of the States, a, pattern. which should be

adhered to in the absence of clear indication of a

. - o- \ ne © ° °

congressional design to duplicate state offenses 5°

-and it emphasized that, the statute is penal and as

such should be strictly construed. The majority

| also stated that any such extension of the scope of

fhe statute, which’ it thought .was inherent in

the Government's interpretation, “suggests the

possible invasion of the field of private rights and

wrongs, unrelated : any federal interest or con-

cern, which Cong ‘ess is) without constitutional

Warrant to enier = vi) ae oo 945-9465, }.

The dissenting judge agreed with the majority.

that thé *‘contract of employment” referred to in

_ the statute is the contract between the employer -

and the pA that the crime prohibited by the

statute is the impairment or derogation of the em- ~

_.ployee’s contractual right to the wages he is‘en- —

____tithed te-reeeiveainder-the-contract ; and that the

———statitewas-not-intended-tr-apply +o-instanees-0f——

extortion unconnected w ith the contract of employ-

ment (R. 248-249). But he was of the opinion

- that “to hold that. the only person who is capable of:

offending, against the statute is-an employer, bes

cause only an employer is in privity of contract *

with the employee,-is to emasculate: needlessly an

important criminal statute”’ (Re248). He pointed.

out that while the language ofthe section is “Very

broad and is ambiguous,”’ it does not make use of -

‘the ag “employer”? but uses the word “who-

ever’’ in tveference to the. person.who may offend

against the prohibition of the statute. Healsofelt .

- that the ' egislative history demonstrates that its,

_ prohibition is not confined to the conduct of the-

enrployer but also covers the” like enrichment ot

compatiy “offic als.” (R. 248, 249.) He empha:

sized that the respondent was not a stranger in fac!

or in law to the contract of employment ; ‘that his *

“- eompany had employed him as foreman and put

him in chargé of the stonemasons, with the power

____ to employv-and discharge them >that his connection

‘= with these’ workmen was more direct and hence +. -

- more influential than that of many a higher official!

of the company ; that respondent was hence ‘in

privity to the coutract by representation, his rey

ae cae 48°

resentation being that of his employer’? (R. 2

4? 249). He added that ‘Certainly. if the ade

ora director of a corporation caused an employee

‘tokick back a part of his, wages under threat of (lis-.

—§nissa} theacts-of- steely at officiel —wetthd-be within

the prohibition of the section. Tnomy opinion.a’

foreman is an official of a company.””> While he.

‘agreed. that: the statute should be strictly Cone

strued, he, stated. that it should not be given a

coustruction so strict as to de ny, the fair intend-

| ment of Congress. "!". (R. 249, ce

‘SPECIFICATION or ERRORS To BE URGED

The c ircuit- Court of Appei ils erred: :

(1) In talding that the ** Kick-back’ Ket is not

appleable to a labor foreman having authority to

etupley and. discharge employ ees, Who, unknown to

the employer, by, Ahreats of ‘dismissal, forces em

ployees under his supervision to. give up to Jit

fart of the wages to which the 4 are € nutitled unde 1

thei ‘ir contracts of eniploy ment ;

* Both’ the majority. and dissentang judges elf. IG 24T,

448) agreed that the trial court committed re versihle error in.

“permitting the prasecitor to argue to the jury. over ob je:

tion, that respondent should have produced as witnesses the

Hamerous enplovees of. the company: whone he was onoet

charged. bythe Gudetment with hase sthjected to extoh——

“thon. so-that they might testify that he hh id Hot eri ped any-

thing from them.” We do not contend that this part of the

decision of she court’ below Wis error, Hence. we concide

that there mustsbea new trial even though the C OUP Sustains

our Positi®n on ‘the que stion of statutory construction,

nO1V4 —43

(2) In remanding the eause with directions to

the District Court “to quash the indictments.

«~

SUMMARY OF ARGUMENT

The majority in the court below held that See-

tion 1 of, the ** Kick-back’” Act apovlies solely *“t

a situation where the employee gives up or cedes

a portion of his contractual wage to or in favor of

or at the instance of the employer or one acting for

or on behalf of the employer.”’ The “kickback”

must enrich the employer. Consequently, it hetd

the section does not apply to a labor foreman of a

corporation, acting on bis own behalf, who, invgsted

withthe power to employ and discharge workmen,

required them, under threat of dismissal from their

“t employnient, to give up to him a part of the wages

which the company had paid them pursuant to its

obligations.

This interpretation, éspoused only, by a mine:

ity of these judges who have construed the statute.

_ is net supported by the statute's language, its man:

| fest purpose, or its legislative history. Respond

ent’s conduct is, we submit, within the statute.

1. erga NCE “whoever” shall do tha’

w —_ is prohibited, 1 .e,, “anyone” or ! “any ype I

son.” It has heen the custom of Congress-to inser

in. penal statutes words of limitation following. the

word “whoever™ where a limitation as to the cov:

erage of offenders is intended: In labor legisla

‘tion itself Congress has demonstrated that sueh

oé

general language-as “fany person”’ is not apt termi-

nology where the employer alone is intended to be

covered (see provisions of ~ Fair Labor Stand:

ards Act set out at p. 23, infra).. If such a

Limitation had been intended in that portion of the

instant statute which is in controversy, appropriate

. language was particularly needed in view of the °

reference to employers (contractors and subcon- .

tractors) in Section 2 and the breadth of the lan-

‘guage utilized in describing the action prohibited.

The exaction of a “kick-back”’ of wages fronr an

emplovee “by force, intimidation, threatof procur-

ing dismissal from such employment, or by any

~other maner whatsvever,”’ certamly does not sug-

gest methods which only an employer or one acting

on his behalf would be capable of using.

. There is nothing i in the statute which indieates

that Congress was concerned ouly with a. breach of

the contract of employment by the employer and

intended merely to add criminal penalties for-such

+ breach. — aAs Is evident from its sweeping termi-

nology and avowed purpose, the statite hada

broader and not quite so technical an end’ int view.

The statute was passed, as its title Indicates, “to

effectuate the purpose of certain statutes concern-

ing rates of pay for labor, by making it unlawful

to prevent anyone’ from receiving ‘the, compensa- |

tion contracted for thereunder. * * * The

two statutes which the ‘*Kick-back’’ Act was pri-

a 16

marily intended to fortify were the Davis-Bacon

~~ Act of March 3, 1931, and Title IL of the National

Industrial Recovery Act of June 16, 1933, particu-

larly Section 206. Broadly stated, these statutes,

- which cover contracts for certain public construc:

tion by the United States as well as construction

~ aided by Federal loans and grants to States, niunic-

ipalities or other public bodies, made provision for

the msertion in the contracts of stipulations to par

“the prevailing rate of wages” for stnilar werk in

the. commitinity in whieh the projeet is: locat (

( Davis-Bacou Act) and ‘just and reas mable wages

which shall be compensation. sufficient to provide,

for the hours of labor as limited, a standard, of 1s

ing in decenev and comfort”? (Section 206, Tithe LH,

National fndtistrial Recovery Act). Tt was vitad to

the snecess of this program of spreadimn: purchas-

ing power among the lower income groups and o!

eradicating substandard wages. from federalis

financed projects, a program born ett of nations!

economic distress, “that the dollar which is in

tended for labor goes to‘that labor.” While the

*Kiek-back Act was not limited to contracts al

thorized by these statutes, there ean bene doubt

that the purpose of Congress In chacting it Was to

. | . ‘ . a

make it as certain as aermunal statute can that the

intended recipient of wages made possible by the

Government's, money should fave the full -en-

Rovmewt and benetit’ of those’ wa@es; that “10

one should induce the workman to give up ani)

‘pare of the wages qua wages to which he is

entitled under his contract of employment, The

purpose of the language in the statute **compensa- .

‘tion to which he [the employee] is entittéd under |. —

- his contract of employment?” is simply, therefore,

to identify the money with which the'statute is con-

> cerned—money paid as Wages In connection with

the performance ‘of federally financed projects. -

.While there must be a diversion of compensation,

as such, to which the employee is entitled by virtue

of his employment on a federally financed project,

obviously a diversion of that type may be made

as well by others as by an employer or one acting

on his behalf; there ds certainly nothing in the

statute which indicates that-the diversion must be

hy’ the lattersor that it must result in the enrich-

ment of the emplayer in contrast with others,

The conduet of the respondent, its the dissent-

ine judge cathe out, Was ‘ot at all unrelated

to his) vietims’ employment and -coines clearly

within the langiinge of the stattite as well as

the evil it wa's designed to prevent. * As he said, to-

accept the construction of the majority is**to emag-

Sr ite needlessly an important criminal statute,’

The interpretation contended for by the Gov-

ermment comports: with accepted canons of con-

struction atid involves no constitutional difficulty.

It is also fortitied by the legish itive history, which

shows that Congress, when it enacted the statute,

involved, was aware that the responsibility for the

. - 7 a ° : . .

et : 3 —

18 : .

‘‘kiek-back ‘racket’ was shared not only by em-

ployers but also by foremen acting independently

and by others having no relation to the. employer.

With this knowledge it provided, as a remedy, a

penal statute sweeping in its terms and containing

no limitation which, properly, can be construed as

restricting it to action by or on behalf of the en-

ployer.

ARGUMENT

THE VIEW OF TIE MAJORITY BELOW THAT THE STATUTE

ENCOMPASSES ONLY A “KICK-BACK".TO AN EMPLOYER IS

NOT-’SUPPORTED BY THE LANGUAGE OF THE STATUTE, ITS

LEGISLATIVE HISTORY, OR ITS MANIFEST PURPOSE. THE

RESPONDENT'S CONDUCT IS WITHIN THE STATUTE

This ase is in narrow eompass. Tt involves 1 a

labor foreman of a.corporation which was parti-

cipating as a subcontractor on public eonstructio! ]

financed in part by federal funds. The company’

plaéed him in charge ofa certain class of work- «

men and invested him with authority to employ an

discharge such workmen. Clothed with the power -

- which this grant of authority gave him, he required

the workmen, asa prerequisite to the diglaing ait

‘retention of their jobs, to ‘kick back” to him a

pari of the wages which the company had paid

them pursuant to its obligations. The company

had not authorized the perpetr ation of this racket,

” Presumably what is meant by the testimony to this

effect is that those. officials of the corporation who were eni-

powered to set its policies had not sanctioned respondent =

misbehavior. ,

-19

did not know of it, and received none of its pro-

ceeds. The question presented is whether this eon-

duct of the foreman is within the pros¢ription of

“. the ‘‘Kiek-back”? Act. . The majority below held

that it is not, beéause the statute interdicts only

action by the employer or on his behalf; in other

words, that.the statute relates solely to the en-

richment of the employer. We submit that there

is no warrant for this construction in the lan-

cuage of the-statute, its legislative historyg or

its obvious purpose; and that the statute embri es

the misconduct of respondent.” a

Seven judges have had occasion to pass on the question

of statutory construction which this case presents... Four

have entertained.a view contrary to that of the majority be-

low (the two district judges and the dissenting judge in the

Cirenit Court of Appeals in this case, and the district judge

in United States vy. McGraw, 47 F. Supp. 927 (N. D. N.Y.)

a, decision to which he later adhered, despite the Laudan/

decision, in United States vy. Fuller, decided September 7,

1943 (unreported officially, but copied in 6 Wage Hour Rept.

"1090, 1091), saying: “A lower court should. and naturally

does, give ‘careful and serious study to the decisions of ap-

pellate courts of other circuits. After-doing this, I find my-

self unable to accept the Laudani case-as an authority here.

I cannot narrow the statute to the confines of that case.”).

Another district judge, in (vite? States’, Carbone

(Mass.),- after overruling a demurrer to ‘an indictment

charging a conspiracy to violate the statute and also sub-

stantive violations thereof, which offenses did not invelve

or contemplate enrichment of the employes, sustained a mo-

tion to quash upon being advised of the decision “of the

majority below in -the present case. Thé Carbone case is

heing held,in abeyance, pursuant to a petition for rehearing

filed by the Government, pending the disposition of the

instant care. a

The statutory language and design.—Unless it be-

found in the dese ription of the action proscribed,

there is clearly no “language in the statute whic ‘b

limits its applic ition to action by or on behalf of an.

employer. “The statute does not say that ‘any em-- .

ployer”? who shall do that which is Inhibited shal!

be punished, but uses the word “whoever” to

describe the persons subject to the Act. No broader

word ‘could: have been used sinee the word “whio-’

ever’? means, of course, . “anyone” or “any, per-

“son. “Statutory words , are uniformiy pire-

~ sumed, unless the contrary appears, to be used in

‘their ordinary and usual eUse, “and with the mean-

ing commonly attributed te them.’ Moreover,

an examination of the feder ‘al eriminal statutes

shows that when Congress. has commenced them

with the word “whoever,” it has been dts enstom,

awareness of the breadth of that, word, to insert

words of limitation immediately following if a lim-

itation as to the coverage of these who etn offend is

intended, ee is therefore) only} veasonabie to be-

1? Funk & Wi agnalls, Voie Standih Die fignary (1937). p.

27H (Canyone, without exception Ni Webs-terss New Later

wrest Dictionary (2d ed., 1936), |p. 2921. ’

Caminett? v: Vnited Nrates, 2y Is S. 470, 485-486, 4905 °

_ Woolford Realty Co. v. Bose, OSh . S; 319. 32T, Waited

_ States v. Warts, 208-U. S. 414, 47. —

sin ‘In Title Is alone of ‘the U nitha States Code there are no

less than 250 separate criminal provisions imtroduced by the

word “whoever.” As ev idencing the custom: of Congress to

insert words of limitation immediately following the word

“whoever” when a limitation as to vpn is mn faet in-

tended; Se for examples. Is U.S “Whoever, owing

\ . 9]

lieve that had Congress intended the “Kiel back”

Act to apply, as the majority below held CR. 245),

solely “te a situation where the emplovee gives up-

or cedes “i portion. of hais eam wage to or im

——$_—_$$—$_$$——$——————

allegiance to the United States"): 1S U.S a BT (* Whoever

being a person belonging te the aneed se or naval eee

of a belligerent nation or betligerent faction of any Mi: mye

_ being interned in the United States”): 18 U. 7

“Whoever, being an officer authorized to stminister. oaths or

to take and certify ac -knowledaments”): TS U. C. -Tta

“Whoever not being an Sea ‘er, agent. or peed of the

a nited acer Ls ps _ 109 (P Whoever, except forest

rangers.” ete.) 2 ISU. e fa\y hoever, being engaged in’

the importation inte the S nited States of any goods, wares,

or merchandise, or being interested as prince ipal. clerk.

agent im b 9 entry of any goods, wares. or merchandi- “"

is {c.S. Cs aon ie Whoever. beng an officer of the- revenues):

is U.S oT (“Whoever, being a const, or viee consul,

or diner ern — in se consular serviee of the

U nited States") DIS U. (We WwW hoever, being an officer,

clerk, agent, aaa “Or arr pe cae with the pay-

ment of-any appropriation made by Congress”) s TS Us. C.

(“Whoever, being a dis eo : the United

—- a ti ora person acting as such” SIS USS. CL Ist Co Who-

~ ever, being an offic ersof the & ae St: ee e LU. SC. 185

“Whoever, being a: clerk or other officer of a court of the

' nited States”): IS Us. C. igo ‘Whoever, being an officer,

clerk, agent, or ‘otlier person liolding any office or employ-

ment under the Crovernment of the United States") 1s

U.S.C. 214 (Whoever, being an officer or employee of the

United States or a person acting fer or on behalf of the

United States in any capacity under or by virtue of the ai-

bp ‘ity of any departme nt or office thereof” ‘- 38 %:. seit 2:

“Whoever, being a judge of the United Stites JIS U.

a i“Whoever. not being an owner “ys Is v B.C. ie

“Whoever, being a captain or eeae officer or mariner of a

veel upon the high seas.” ete): and IS UL. C. 5, 192. 19:3,

14, 195.198, 199. Zoe. 205, els YD, 2OT. 215, 231, 235, 239,

‘22

favor of or at the instance of the employer or one

actin for or on behalf of the employer,”’ it would -

chave been careful. to. insert: after the word “ who-

ever”’ language making clear that the statute Was

aimed at the employ er alone.” |

240, 264, 303, 305, 307, 310. 316. 318, 319, 322, 325, B28, 330,

331, 332, 333, 337, 352. 855. 356. 421, 422, 426, 427, 425

432, 482, 483, 484, 485, 486, 494, 495, 496, 499, and 517.

Congress has even inserted words of limitation where the

very nature.of the act proscribed made the, limitation un-

necessary. See, for example, 18 U. S.C. 77a (“Whoever not

being an officer, agent, or employee of the United States shall

falsely represent -himself to be such officer, agent, or eti-

an officer, agent, or employee of the United States obv iously .

is not one: and so the statute would have contained the same

_ limitation on the word “whoever” had it. read “Whoever

falsely’ represents himself to be an offic er, agent, or employee

of the United States.” : .

‘Cf. the above sections with the following sections contain-

ing no.words of limitation: 18 US, C..4, 7, 22, 23, 24, 25, 36,

52. 71, 72, 73. 74, 76, 78, 79, 80, 82. 83, 86, 87, 90, 91, 92.

* 94,95, 96, 97, 98, 99, 100, 101, 103, 104, 105, 106, 107, 110, 111...

112, 113, 116, 117, 118, 119, 120, 121, 123, 126, 128, 129, 130,

131, 132; 134, 136, 144, 145, 146, 147, 177, 187. 200, 212, 232.

- 233, 234, 236; 237, 241, 24a, 243, Q44, 245, 246, 247, 248, 249.

250. 251, 253, 254, 262, 263, 265, 266, 267, 268, 269, 270, 271,

272. 273, 274. 275, 276, QIT/ QTR, 279, B81, YR2, 283, QS4, Qs5.

/ 291, 302, 304, 306, 308, 312, 313, 314, 315, 317, 320, 321, 321a.

324, 338, 338a, 33Xb, 339, 3457 347, 348. 349, 349a, 353, 354, 357,

358. 381. 387. 390. 396, 396a, 408a, 408-1, 408d, 409, 412a, 415.

462, 463, 464, 465, 466, 467, 467a, 468, 470, 481, 487, 488.

489, 490, 491, 493, 498, 502.512, 520, 522 and 552.

* This precaution was particularly necessary in view_of the i

breadth of the language subsequently employed in describing

the action prohibited and because of the reference in Section

2to employers. See discussion at pp. 24-27, infra.

ployee,” * etce.). One who “falsely” represents himself to be = —"

ae oe > »

aS ee ae ee

Indeed, in the very field of legislation with which —

we are here concerned, labor legislation,-Congress

has, demonstrated its awarenens that such general -

language as ‘‘any person’ ’ is not apt.terminology

where ‘the employer alone is intended to be covered.

Thus, Section 15 (a). (3) of the Fair Labor Stand-

_ ards Act of 1938 (52 Stat. 1068; 29 U. S.C. 215 (a)

(3)) provic ides. that ‘‘it shall be unlawful for any

person * * * to discharge or in any othe rT.

manner diser iminate against any employee becatise

such employee has filed any complaint or instituted

or caused to he instituted any proceeding under or-

related to this Act! or has testified or is about to

. testify.in any such proceeding, or has served or

is about to serve on an industry committee,’’ ana

Section 16 (x) of the same Act (52-Stat. 1089; “99

U.S. C. 216. (a)) provides that “Any person who

willfully violates any of the provisions of section 15

shall upon conviction thereof’’ be subject to cer-

tain punishment. In contrast, however. Section 16

(b) (29 U.S. C. 216 (b)) visits certain ¢ ‘ivil liabili-

/ ties upon “Any employer who violates the provi-

sions of section 6 or section 7°’ of the Act. _Inter-

- preting Section 15 (a) and related provisions in.

_the Fair Labor Standards Act, the- same. court —__—

which decided the instant case held,-in a civil suit

(Bow ev. Judson C. Burns, Ine.; 137 F. (2d) 37, 39

AC. Ca: 3)); that the words *‘any person”’ in that

section, so far at least as the discrimination previ-

sion is concerned, are not confined to an employer.”

And in Meck v. United States, 136 F. (2d) 679; 680

(CLC. A, 6), a later erjminal proceeding under See-

tion 16 ( a) for violating Section 15 (a) (3), it was

_ said, following the Bowe case, ‘tas there pointed:

- out, the differentiation between the prohibitions in

other setcions of the Act direc ted to the ‘ employe 2

and those here directed to ‘any person” is signifi- -

‘ant of the intent of the Congress.”’ ~

A parallel situation: prevails under the “Kick-

hback”’ — In its second. section (footnote 1,

“supra, pp. 2-3), which was enacted expressly ‘to

aid in the enforcement” of Section 1, the se ction

here involved, the Secretaries of the Treasury and

the Interior were authorized to make regulations

for “contractors and subcontractors” on the build-

ing or work spec ified in-Section 1, including a pro-

Vision that ‘each contractor and: subcontractor’

should furnish a weekly affidavit with respect to

the wagés paid “teach employee” during the preced-

ing week. These provisions, of course, refer to

employers.” While the majority in the court: be--

*% The court rejected a contrary interpretation by the

district court (Barre ve Judson ©. Burns. Inc. 46 F. Supp.

2 a Pe ae

* The purpose of the provision for submitting verified

‘weekly pay volls apparently was to provide a-method of

ascertaining readily the amount *that employees are receiv-

-ing or supposed to-be receiving from their -eiuployer. A

Witiess at a Senate subcommittee hearing who recommended

the pgovision advanced as a reason for it self-protection of

the employer. Hearings, Subcoimitiee of S. Comunittee on

Commerce, S. Res. (4. 3d Cong., 2d’sess., Vol. I. pp. 791, 794.

797,

‘

- \

23%

low pinta to think that this reference in Section

2 to employers fortified its conclysion that Section

4 likewise was limited to employe we (i. 4 244-24: D),

we think it must he evident that. the diffe rence in

language between the two sections makes for the

opposite result—that Congress used the broader

- language of Section 1 inte tionally. |

The’ breadth of offe nder ‘coverage in Section 1°

~emtomized by the use of the word “whoever, * to-

- “gether with the specific: limitation »f Section 2 to :

=€ juploy ers by the use of the wor ds ‘*e ontrac tor sand

‘subcontr, actors, 's ’ make it apparent that Section 1°

should not be confined in application to a ‘kick-

hagk” “which benefits the ‘employer ‘pec amiarily

wiiless that result is compelled by other language

in’ Section 1. We find no such language.

The section penalizes, in the droadest possible

terms, anyone who, shall “induce” any person em-

ployed im federally financed construction or repair

work ‘to give up any part of the compensation to

which he is entitled under, his contract of e mploy-

ment, by forces intimidation, threat of precur lig

dismissal from such employment, or by any other |

——mnnerehatsserer-’—f Halies uppled}— Jearly

this language-does fot suggest me “thods of exacting ee

a ‘kick-back’* which only an employer or one act-

ine for him would be eapable-of using. Neither

fhe employer nor his agent: would normally use

“force”? to “induce”? a *kick-back”” frem an em-

ployee. And an employer would eortainly use a-

’

26 |

“threat of dismissal’’ rather than a “‘threat of pro-

_ curing dismissal”’ in attempting to secure a **kick-

back," While an agent’ of an: employer might

utilize a “threat of procuring ‘dismissal’ if. it

was desired to conceal his’ representation of the

employer, the phrase, of course, equally fits others .

than such-an agent. Also, since an employer, it

would seem, would ordinarily go through the mo-.

tion, at least, of paying the employee the prescribe ad

wage, in order to make it appearthat he-was com-

plying with the statuté, an employee would gen

erally. “‘give. back’ rather than “tive Up,” ‘a part

of his compensation tu the employer. At id, ver

‘tainly, there was no occasion te use suc hhasweep-

‘ing phrase as the concluding ene “by any other

manner whatsoever,”” if Congress had-intended to

interdict only action by ‘or on behalf of the enm-

plover. :

In sum, it is only” re asonable to sj ppose that

had Congress intended in Section 1 to prohibit ens

plover action merely, it would have used language

- more appropriately deser iptive of that. type of at- Mp

tion, partic ‘ule.1% in view of the bre adth of the in:

“In United States v. MeG raw, 47 F. ‘Supp. 9 927. 928 (N. Th

-Y.), it was. pointed out, in reaching a decision: opposed,

to ee of the majority below, that “the words *by force’ anid)

‘procuring’ lose their meaning” if Congress had intended a

limit the section to employers. See also quotation at ‘p. 45.

footnote 54, infra, from the Tater deci ision.of the same court _

in United States v. Fuller, decided September 7, 1943 (unre-

- ported officially, but copied in 6 Wage Hour Rey" 1090). \ i

troductory word ‘‘whoever”’ and the contrastivg

limitation of Section 2 to employers.

In complete disregard of the sweep of the statu-

tory language to which we have adverted; the mra- >

-soFity below pins its decision, so far sas the face of

the. statute is concerhed, solely upon the .words

contract ‘of employment. *~Preliminarily, 11

states that it- seems plain from a reading of the

statute that the evil aimed at is the inducing of an

cmployed ¢ engaged in work of’ the character spec 1-

fied, ‘to give up any. part of thie compensation |

‘to which he is entitled under his contre ret of eni-

ployment.”” No one ¢an, of Course, quarre] with

“that, but the majority pelow then proceeds to give.

this- language of the statute a twist in meaning } Wot

discernible. from any ordinary reading of it by ise-

lating the words ‘contract of employment"’ and

then jnaking this phrase the focal point of its ra-

_tiocination.” The ‘contract of. employment”

‘means, the majority. says, the contract between the

employer and thé employee” Lf -this*be so, as

Tn United States N: American’ Tracking Associations, -

fue. B10 U.S. 584, 542, this Court pointed out that “to take

a few words fron) their context and with them thats isotatedt

to attempt to determine their meaning, certainly would not‘

contribute greatly to the: discovery of the peepee of the’

draft smen of a statute.”

“In this connection (R. 245- 244) the majority cites 1 ited °

States V, Gaulder, A1- F. Supp. STO, sel (iE. D. Pa.) whieh de- |

fined “contract of employment” as meaning “the agreement

between the contractor and the wor kmai. not the contract

between the ¢ontractor ahd the. public body in’ charge of —

work,” a definition later adhered to by the same judge i

28.

may be assumed arguendo, the court then reasois,

apparently, that unléss there has been an impair-

ment, violation, or derogation of the eniployee’s

contractual right with respect. to the wages he is

entitled to receive has not been compelled,

within the mei ert <n Baar to give up” any

part of such wages. The one who is capable of

breaching the contract right to the wages is, of

course, the employer beeause he is the other party

to the contract. Hryo, the statute as written nec

Uiited States v. Charlick, 26 F. Supp. 208.205 (ke D. Pas.

and followed in 19 Comp. Gen. S76, S5T7-578 CR. 287-240),

In the Golder and Chartick Gases the “Kiek-back™ Aet was

lied inapplicable to the employer beeduse the “contract of

employment” between. the employer and the workman, al-

though calling for the payment, of’a lesser wage than that

required by the contract with the Government, was adhered

ta. We believe that these decisions are not correct beeatise

they ignore the Congressional purpose to. insure that. the

minimum wage intended tor the workman gets to him.

Vndied States v. Morley Coustruction Co. 98 F, (2a) 71,

Tas Tso ¢C. C. AL 2), certiorari‘ denied sud nom., Maryland

Cusudall y CoN: tl nited States, 305 US. Ob: Vutted States v.

Bulle CN DON. VY.) decided September 143 (unreported

officially, but copied in & Wage Hour Rept. logo). Butlin

any event. it is umiecessary here to determine whether the

Scontract of employment” av het entbody the anterior

agreements, where there are such. since in this ease the en-

plover paid its employees the precise wages which hadbeen

- agreed upon in the subcontract and the earlier coe ipal con

tract (see ppb a. supra), -

The Charlick and Golder decisions did not deal with the |

problem here presented, and, hence. as the dissenting judge

below said CR. 249). are’ “not apposite the question si

judi e The ( ‘ompt roller General's dee ‘SION, also, can-

cerned a different question,

essarily has application only to a situation where

the employee gives up or cedes.a portion of his

contractual wage to the employer or for his bene-

tit. It is necessary that the employer be enriched

(R. 243-244). ¥ 3

Shortly stated, the difficulty with this argument

is that it breathes into the statute a concent which

is simply not there, namely, that the statute is con-

corned only with a breach of the contract of em:

ployment by the employer and merely adds criminal

penalties for such breach. The statute clearly has

a broader and not quite so legalistic an end in view,

as is evident from its avowed purpose and sweeping

terminology. :

ws is apparent from its title, a declared object of

the **Kiek-back’? Act- was ‘‘to effectuate the pur-

pose of certain statutes concerning rates of pay for

Jabor, by making it wnlawful to prevent anyone

from receiving the compensation contracted for

thereunder * * *.’ At the time. the * Kick-

hack’? Act wa passed ( 1934) there were two stat-

. utes, at least, which made provision for rates of pay

on building construction and repair werk financed

in Whole or in part by federal funds. One ofthese,

the Davis-Bacon Act, enacted Mareh 3, 1931 (e.

411, 46 Stat. 1494), provided, in its first section,

forthe inclusion, in every contract, in excess of

$5,000: for the construction or repair of, public

buildings of the United States 6r the District

of Columbia, of a provision requiring the con-

tractor or: any subcontractor to piky; the me-

‘chanies and laborers as a minimum wage. the

‘“orevailing rate of wages” for similar work

In the community in whieh the work is le

-eated. The other statute, Title LT of the Nation:

Ludustrial Recovery Act of June 16, 1955 Ce. fo

48 Stat. 195, 200 02 se q.), designed to relieve unen

plovmient and improve the standaras of Labor, tices

provision fora comprehensive program of publi

Works to"be carried out either directly by, the Got

cermment or through loans and grants to staites,

This Aet was amended ol Aubust 30. Da Co. Sta. ae

Stat. LOLL: dO US. CL 268-2 760-5). after the enactment of

the “Kick-beek™ Act. by making it applicable to contract: u

excess of 2.000) agmtia of S000. ang by requiring that the

contreet contain stipubkitions that the work.ien are to be pid

“directly. upon the’site of the work, nneonditionally rages

and without subsequent dedtiction or rebate on any account,

that the “prevailing wage” is to be paid “regardless of a

contractual relationship” which may he alleged to exist ed

. tween the contractor vor subcontractor and his employees.

th: it the scale of w: ives is to be posted ina prominent and

easily accessible place at the site of the work. that the con-

tract may be terminated by the Government if the required

wage scale is pot followed. and that there mary be withheld

from the contractor a sufficient portion of his accrued con

pensition to make good to the employees any deficiency 1m

the amount rece ved. In the event of the acerted payments,

withheld proving insufficient to make good any deficiency 1

the wages, received by the emplovees the latter are express!\

given a right of action against the contractor and his sure

ties, “anc in such proceedings it shall be ne defense that

such Jaborers and mechanies: aecepted or agreed to accept

less than the required rate of wages or voluntarily mace

refunds.” . .

' 3l

muni¢ipalities, or other public bodies, covering a

certain percentage of the cost of labor and material.

in Section 206 (48 Stat. 204-205 ; 40 8. C. 400)

it was provided that ‘All contrac ts let for construc-

thom projects and all loans and gri ants pursuant to.

this tithe shall contain such provisions as are nee-

essary tojnsure “* * * that allemplovees shall

« paid: just and reasonable wages which shall be

colupensation sufficient to provide, for the hours of

labor as limited, a standard of living in decency

wand comfort .* A Sos

Manifestly, the purpose of tlsene statutes was to

mesure that the Cnited Statesy in its: proprietary

capacity: and in the exercise of Its spending power, |

would not iend itself to any lowering of the living

op ursuant to the authori tty cont: nined i In this Net (Section

2O9 HS Stat. 206: 40 TLS. CL 409). ath Executive Order (No:

C252) was issutd by President Roosevelt on August 19, 103}.

which, under the heading “Regulatious.” required that all

wages paid for the construction: authorized by the statute

_should be paid “in the full amount earned by ef&ch maividual

at the time of payment, not less often than once each week,

and without deduction on account of goods purchased. rent.

or other obligations, which obligations shall be subject to col-

fection oly by legal process): that “Each-contractor or uly.

contractor on any such project shall post ina prominent and

easily accessible place at the-site of the work a Tegible state-

ment of all wage rates paid”: that “Should it appear that

~ anv individual enrploved on any such project has been or is

being paid lessthan hereinbefore preseribed. the Adminis-

trator | Federal Emergency Administrator of Public Works ]

shall, notify the emplover of such individual to pay him all

wages due according to the prescribed rate”: and that "Upon

» LO days default on the part of such employer he shall be

hable to the pemulties provided in said Actsfor violation of

these regulations.” |

standards of workingmen, and to provide instead |

~ that it set guideposts of employment.* They were

born in a period of hational economic distress and

ithe desiderata were to effectuate a policy of spread:

ing purchasing: power among the lower income

groups and to eradieate substandard wages from

' federally financed projects. It. was vital to

the success of this” program “‘that the dollar

which is.intended. for labor goes to that labor.”

While the ‘*Kick-back’* Act- was not limited

in operation to the period of the depression.

and applies ‘to all contracts -fer construction

and repair work financed in whole or in part

by Government funds rather. than merely te’

contracts executed pursuant. to any particular

construction: program or for any certain amount,

there can be no doubt that it was the Con-

gressional design, in enacting it, to make it as cer-

+ tain asa criminal sanction can that intended recip .

ients of wages made possible by the Government's

_ money sheuld have the full enjoyment and beneti!

of those. wages ; that no one should induce the work

man to give up any part of the wages qua Wages to

Ww hich he is entitled under his contract of émploy-

ment. The words of the statute ‘compensation to °

which he [the employee } is entitled under his con-

tract of employment’? have consequently no ese

29 Cf. Perkins v. Lukens Steel Co. 310,U. 8. 113, 127.

** Hearings, Subcommittee of S. Committee on Commerce:

‘S. Res. 74, 73d Cong., 2d sess., Vol. I, pp. 791-792.

* See 19 Comp. Gen. 576, 577-578 (R. 239-240).

tify the money with which the statute is concerned,

, money ‘paid as wages in connection with the

a oly federal contracts for construction

or reparr se fi in connection with other public

construction made nossible in whole oer in part by

which the statute interdicts must result in a diver-

sion of compensation, as such, to which the em-

ployee is entitled by reason of his employment, on

‘a federally finanved project, it is evident that a

diversion of that type may be made as well by

others as by an employer or one acting in his

interest: and there is certainly nothing im the stat-

ute which indieates that. the diversion must be by

the latter or that it must result in the°enrichment

of the employer in contradistinction to others.

It is, we believe, unnecessary in this litigation to

statute which is manifestly broad and sweeping.”

of a union’ check off. However, a legitimate umion check-

off, the propriety of which is impliedly recognized in the

ieuse -of the National — Relations Act (Act of

July 193.), ec. 372. Sees. § (5). yta), “49 Stat. 449, 452, 453;

29 US. C. 158 (¢), 159 (a)) for ‘the designation of exclusive

collective bargaining representatives and authorizing closed.

| __—+hop upreements with such representatives, wotld note Hour

opinion, fall within the “Kick-back™ Act. since it woulel con-

stitute merely the collection by an otherwise lawful method

of an assesment that the employee ¢ ‘ari validly be required fo. .

pay in any event as a condition. of securing or petaming his

employment: and the. Secretary of Labor has so recognized

° . ee

teric meaning. Their purpose was merely to iden-.

_ grants or loans of federal funds. While the action.

determine what may be the furthest reaches of a.

. 7 \, iz =

Certainly, to sustain the indictments ‘in this case,

the Government is not required to urge; as the ma-

jority below asserts (R. 246), that. ‘the Dblack-

mailer, who, Wholly unconnected with his victim's

employment, requires and receives a part. of tlic

emplovee’s Wages each week for withholding

knowledge of something which the latter desires to’

keep secret from his employer lest he lose lis job,

would be equally’ indictable." As’ was aptly |

pointed out by the dissenting judge (R. 249),. the

defend: uit ia this case “was not a stranger. in fact

or'in law to the contract of employment.”” - Te was

“the labor foreman of the subcontracting emplever.

His company placed him in complete charge ef the

‘stonemasons it employed. and he was vested with

the plenary power of hirimg and discharging them.

So far as the workmen were concerned, he wa-

“the boss.”” His connection’ with them, as the dis-

senting judge sti ited (R. BAS), “was more direct’

and hence more influential than that of many a.

higher official of the * * .* “Company.” bf

was by virtue of his relationship te the contract o!

reheat a a

by proving. a proeeglurg for securing autiorization ot

cles Inetion that “is for the benefit of the en: Pp slovees or the:

labor organization through which they are represented a

is provided fer ino oa bona fide collective bargaining ayres

ment.” Section 2.5 ¢h) (2) Cit) of Regulations of ecwet art

of Labor (29. C, FR.) as amended February 3. 142 (7 Fe!

Rew. GG, OS**), in Verdin ia Klee ty bn af fog om pany \

National Labor Bclations Board, 319 U.S. 533, this Cour

jimpliedly veeogmized that a union not company: dominated

lav -provide employees with a suffice ie nt inte pro qe for ths .

chee! k off, ; a — ite poe

35 ee

‘employment that he was able to exact - from the

employees a> portion ‘of the wages to which they

- were entitled. His conduct was ¢learly within thre.

lunguage of the statute as well as the evil which it

was designed to prevent. But. the effect of. the

decision of the Circuit Court of Appeals is to ex-

clude from: the ambit of the statute not only-re-

spondent's condue ‘1 but an: tlogous conduct by even

the president er a dirce tor of 2 corporation acting

.. for his OWT) ‘benefit. Po .give the: statute such a

construction is, to use-again the language of -the

dissenting judee, “to emasculate needlessly an.

Huportant criminal statute” (1. 248). cane

The rule. ot strict construction of pol ul sti tutes |

relied upon by ‘the m: jority belew docs not require

that such a statute “be sti@imed and distorted. m

order to: ee conduct clearly mtended to be

within its se cope” While such statutes “may not

by proce CSS" ol, eoustruction be exte nde d be vond

thelr reason: thle and nm tur: aul me unin, neither may

the ¥ be, by the SaHe * “proe CSS, cle pr ived of ther

natural meaning.’ The strict construc tion doc-

trite “does Wot 1 quire that the, words’ of an enact-

ntent be given their nar rewest mean onthat the

lawmaker’s evident intent be disregarde “ls nor

nite? States v, Raynor, Te US. 540, S52: TA Nheop

“CON. United States. 25 Us. Dat 190: ited States sx, Cor

het) 215 U.S, 233, 242-243. Nee

Spivey Vv. United States, OF, (2d) Ist bse (CO. CoA

»). certiorarr denied, 3100 JS.631.

2 United States v. Giles; 300 Us s. 41, 48.

does it “‘require rejection of that sense of the words

which bést harmonizes with the context and the end

in view.’’” Implied exemptions from a statute

phrased in words of general _apphie ‘ation are not

favored “ and even express exemptions: are often

subject to a rule of striet construction.“ ~ The in-

terpretation of the majority helow adds to

the statute a qualification which is not required

by the piain meaning ofits language, the manifest

Jegisiative intent, or constitutional considerations.

This the majority below was trot permitted. to do

- “ Goochyv. United States, 297 US ; 1th, 128. ;

~ 9 VWarirAl ve Moore, 22 Tlow."1s5, 19) (“the rule is. th: it

where the Legislature makes a plain provision, without mak-

ing any exception, the courts of justice can make none, as i!

would be legislating to do so”): United States ¥. City Nu

Bank of Duluth PAF. Supp. 530, 535 (D. Mifin. J} Garrise

Sumners, 223 Ala. 17.18 (19381).-

* See Fleming v. Hawkeye Pearl Button Co. USF. (2)

52.56 (C. C. AL 8). relating to’an-exeeption in the Fai

Labor Standards Act, which has an analogous end in View.

“Since the Government is not here urging the application

of the statute to the conduct of one who was “wholly uncon

nected with his [vietim’s| employment.” there is not here

presented the constitutional problem which the Cireuit Court

_ of Appeals felt that such a construction might involve (R

~Y46). If. as we submit, the statute plainly coversteondiuct:

so closely related to the contract of employment as that of

respondent, there can be ho doubt that in its application to

that conduct the statute is no more vulnerable to attack frém

a constitutional standpoint than in its’application to anale

gous conduct by or on behatf, of the employer, as to which,

‘bt course, the majority befor had “no constitutional —

The question here is simply one of determining the sc ope 6

the statute within an indisputably constitutional field.

It cannot be gainsaid that the construction contended fo

by the Government projects the legislation into fields which

“under the guise of construction because, as this’.

court has so, often held, where the words are plain

‘a

there is no reom for construction. thi.

are or may be covered by state criminal law (although cer-

tainly not, however, to the extent the ma jority below as-

sumes (R. 245-246) ). but, of course, this is likewise true of °

the interpretation espoused by the majority below [cf for

example. the New York “Kick-back” statute, (Laws 1934. ¢.

171) adopted at the same.time as the Federal Act and for

the purpose of combating ‘the same evil. See People Nv.

Meyer, 167 Mise. 287. 3 N. ¥: S. (2d). Rov (C ity Magee

Court. Borough ‘of Manhattan, 1938): Pe ople \. Desowite,

16 Mise.*h, 2. N.Y. S. (2d) 87 (City ‘Magistrate's ‘Court,

- Borough of Manhattan. 1938) |. It was recoghized, is the

hearings before the Senate committees show. that the pre-

posed legislation would ov erlap state law. (Hearings before

a Subcommittee of. the Senate Committye on Commerce,

_pursuant to 5. Res. 74. 73d C Ong. 2d Sess.. Vol. 1. pp. 817-:

SIS: Hearings before a Subcommittee of the Senate Commit-

tee on Edueation and Labor, pursuant to S, Res. 228, 73d

Cong.2d Sess., pip. 23-24). But the majority does not assert

that this duplication of offenses presents any constitutional -

problem in-and of: itself, as clearly it does not (Jerome Vv.

United States, 318 U.S. 101,105). Tt eafls at most. as thiy

Court pointed. out in the Jerome case, for’a none xtension of

‘the duplicating federal statute bevord Ris clear terms, some-

thing which we do not urge.

' Oxaka Shosen Line Vy United Staten. 360 VS. $s, 11:

Helvering Vv. C ity Banks t'0., 296 US. Ra SD: Caminctht Va

United States. 842 US: 470. Jah. 490: Machkenzte ve Hare,

WOES. 290. 208: “Le would transcend judicial power to

insert limitations or conditions upon disputable considera:

tions of feasons which impelled. the law, or of conditions to:

which it might be conjectured it was addressed and intended

‘to accommodate” : Forre stal v; Commissioner of ' Fnternal

Revenue, 120 F, (2d) 223, 225 (CG. A. 2).

- {

;

The le juddtive history. _While we think IN ;

can be no.dowbt that the statute on its face em-

braces such conduct as that of the lebor foreman in-

volvedein this case; this view, is fortified, we submit,

when ‘consideration is given to the legislative his-

tory, reflecting the nature and extent ot the evil

. that brought about the statute’s enactment..’- For

a-considerable period prior to the introduction of

the bill which bec: ume the Rick-back” Act the re had -

been extended hearings before a subcommittee of

the Senate Committee on Commerce, pursuant to

S. Res. 74, 73d Cone.) 2d sess. and hearings be-

fore a subcommittee of the Senate’ Committee on

Cduecation and Labor, pursuant ‘to S. Rés, 228,

73d Cong., 2d sess.,”” were in progress at the time

_of the bill's enactment.” The testimony: taken at

these hearings reveals that responsibility for the

“kick-bae ‘k racket’ was shared not only by em-

“In Vnited States vy. American Trucking Assotiations..

Tne. BIO US. 534:.543-44, this Court indicated that it

cold turn to any “available information for reaching a cor:

rect: conclusion” as to the interpretation of wt Statute how-

ever r clear the words of the statute might appear to be

‘“Nathorizing an investigation of the matter of sy- called

rac rial with a view to their’suppression.’

“Authorizing an investigation of the relations ship @XIS!-

ing between cert ain contractors and their eniployees in the

United States.”

~The hearings before this subconimittee continned atte

the passage of the “Kick-biack” Act. and resulted: in the

wmnendment of AL EUSIg 30. 1935, to the Davis-Bacon Act (see

footnote 21, supra, p. 30). Uniess otherwise stated. we reter

in this brief only to what was brought out at those hearings

prior to the énacement of the “Kick-back” Jaw.

ulntair contractors.

ployers but also by foremen acting independently

‘and by others having ro relation to the employer.

One of the principal witnesses before the subcom-_

mittee of the Senate Committee on Commere e was

Mr. George J. Atwell, president of the George J.

Atwell Found: ation Corporation. That his testi-

/ mony-was most influential is ev idenced hy’ the fact

that it was he who suggested; for the purpose of

furthering effec tive enforcement, the ae that:

became Section 2? of. the “Kic k-bae k* Act.” “Te

stated that. in order to ma ike effec tive vovernme nt

poliey in providing employment “Wwe mist see to.

it that the doHar which is intended for labor goes:

‘to that labor’ that i “Otherwise millions of dol-

lars intended to reach the 1: borer will find ‘its way

into the pockets of the racketeers or-dishonest or

"4. On thie basis of his own

company’s experience he said that ‘Contractors

themselves can help the sitnation if they ate not

themselves involved in-the racket 7" that his own ~

company included in ‘every pay envelope a notice |

to the employees **not te pay ‘any money. to anvone

to obtain or hold your job: * that “Th piv’ case,

en my Jah, I had a foreman for 10 years, aud care-

7s parse an Subcominittee of Senate C ommittee a. Ol -

* merce, S. Res. 74, 73d Cong., 2d sess.. Vol. f. pp. 791, T4797.

See also footnote lL, supra. pp. 2-3: footnote, 17. sprit. Dp. 24

* Thid., 791-792. -—-~ ..

" Tbid., 791. ns

* Thid., 791-

| 40

4 ful as <1 was about it, I found he was selling tickets

to:the men-for. shore dinners at $5 @i

get 4 job you had to buy a ticket. “Then I shen

. that the shore dinner was never held. So that was

* another form of ‘kick-back’ ’’;“ and that “‘The men

have told: me that they are forced to join social clubs

‘where they. must pay. a very high’ rate of dues.

‘ That is another form of ‘kick-back’.’’ “ Another

‘witness, Mr. Adolph Dzik, an attorney. for the Anti-

racketeering Committee of the A. F. of L. Build-

ing Trades Unions of New. York, testified to com:

plaints froma ‘number of labor unions that ‘during

the construction of the Roxy Theatre in New York

; plasterers’ helpers received $8.50 a day (the pre- .

vailing union wage) in their pay envelopes but

‘were required to pay back a day or two after re-

ceiving their’ pay, to the labor foreman, the sum of

$2.50 per day.“ The then United States Attorney

» for the Eastern District of New York,-Mr. Ameli,

' wrote to the subcommittee of instances ‘where cer- -

tain superintendents or labor foremen exacted tri-

- bute from various mén employed on the construc-

tion jobs, ‘the threat being that if the money .

was not paid, ‘they would lose their. jobs.”’ * . The

testimony before. the subcommittee of. the Senate

Committee on Education and Labor likewise re-

“ [bid., 790-791. \:

*Jbid., 791.

* Jbid., 801.

_ # did, 826.

“Be :.

wile instances of the participation of foremen | in

the “‘kick-back racket.’™ :

While the committee reports on the ‘‘kick- back”

bill were very brief and did not advert directly to

“kiek-back” practices on the part of foremen or

others acting independently of the employer, the

Senate Committee on the Judiciary, in reporting

the bill favorably (R. 235), stated that ‘*Hearings

of the Senate Committee on Racketeering “ re-

vealed that large sums of money have been ex-

tracted from the’ pockets of American labor, to

enrich contractors, subcontractors, and their offi-

.cials,”’ [Italies supplied.] In view of the evi-

dence before the inv estigating committee that fore-

men were guilty of such abuses, it would seem —

clear that the Judiciary Committee’s reference to.

“‘officials’” was meant to include foremen as well .

as higher’company executives. Furthermore, the

word ‘‘enrich’’ in the report of the Committee

clearly refers to“‘officials”’ individually, since they

are not enriched if they merely act at the instance.

and on behalf of the employer. The report, of the

“ Hearings, Subcosnmittes of Senate Committee of Edu-

cation and Labor, S..Res. 228, 73d Cong., 2d sess., pp. 5, 80-

81, 152, 159. For further instances shown by testimony

given at the same hearings though subsequent to the ehact- ’

ment of the “Kick-back” Act, see ibid., 280-290, 333, 341-

342, es

4 Reference is undoubtedly to the hearings before the sub-

committee of. the Senate Committee on Commerce,. which

- subcommittee had. proceeded under a resolution authorizing

investigation of so-called “rackets.” (See p. 38, supra.)

§, Rep. No. 803, 73d Cong... 2d sess. (R. 235). |

42 :

Senate Committee, - br ief as ‘it is, is ‘therefore

nevertheless. sufficient to. refute the conclusion of

the court below that the Act was ‘intended to”

apply only to cases whére ‘the employ er is en-

riched by either his own action or netion én his

behalf. “The | report: of the House Committee on

the Judiciary (R.236-237) referred only to “the

so-called ‘kick-back’ racket by which a contractor

on a Government project pays his laborers wages .

at the rate the Government require: him to pay

them, but thereafter forces them to give back to

him a part of the wages they have received,’ but

in the brief debate on the floor of the House,

Chairman Sumners of the House Judiciary C om-

nifftee, in response to>a direct inquiry,” stated

that the bill: was intended to apply to the abuses

which had been disclosed by the Senate committee

of which Senator Walsh was cd -bairman (Subcom-

mittee of the Senate Committee on Edueation and *-

Labor).* ° | ce aoe,

“H, Rep. No. 1750, 73d C onhg.. 2d sess. iR. 236).

2 78 Cong. Rec. 10759. .

Tf, despite what was said in ‘the American T rucking

Associations case (footnate 35, supra, p. 38), statements at™

Congressional hearings are ordinarily not appropriate legis:

lative history (2. F. C. v. Bankers Trust Co., 318 U.S. 168.

168, footnote 10), we submit that the testimony before the Sen-

ate subcommittees in this case should be considered in this

case becaiise of the reference to the testimony before the sub--_

committee of the Senate Committee on Commerce in ‘the |

Senate Judiciary Committee report on the bill (supra, p. 41).

-and becattse of the reference to the testimony before the

subcommittee of the Senate, Committee on Education and

Labtr in the comment of Chairman Sumners of the House

‘Judiciary Committee.

_ The legislative history of tle Act thus shows,

first, that the evil which led to its enactment was

the ‘racket’? whereby -money supplied by the

United Sfates for construction and.repair projects .

and intended. for labor was in fact diverted’ from

labor; second, that foremen acting : independently.

and others unrelated to the victim’s employer were

participants in the “racket”? ;and third, that Con-

gress had before it information as to the full extent

of the eyil at the time it provided, as a remedy, a

penal statute-sweeping in its terms and containing

no limitation which can properly be construed as

restricting it to action by or on behalf of the

employer.” Pie a

* From its study of the legislative history, made after

careful consideration of the decision of the majority be-

low in the instant case, the District Count in United States

v.-Fudler, decided September 7% 1943 (unreported officially,

but copied in 6 Wage Hour Rept. 1090),concluded (p. 1091) :.

“A study of the history of the passage of the statute con-

vinees-me that even though much ¢f the testimony and dis-

cussions had to do with “kick-back” to-employers, the legis- .

lators were determined to stop the mulcting of public project:

workers by anyone using the means stated ip the statute.

The broader Purpose is clearly expressed by the language of

the law. The-words ‘anyone’ in the title and ‘whoever’ in

‘the text have such universally understood meanings that

they-are ‘embodied, in. the maxim—erpressum faci? cessare

tacitum.’ A limitation of those words would not only m: ake

other words of the statute—such as ‘force’, ‘intimidation’

and “proce uring’ —meaningless L.. it would provide an easy-

device to circumvent a ¢riminal statute. T must adbere to

my former interpretation [in (nted States x. McGraw, 47

F. Supp. 927.” : eae

. CONCLUSION.

"For the reasons stated, it is respectfully sub-

mitted that the construction placed upon the

statute by the majority below should be rejected ;

that the judgment of the Cireuit Court of Appeals

remanding the case to the- ‘District Court. with

directions to quash the ‘indictments should be re-

versed; and that the case should be remanded to

the Circuit Court of Appeals so that it may have

the opportunity to consider.other errors alleged to

have occurred at the trial before it remands the

ease to the District. Court for a new trial."

CHARLES FaByY,

Solicitor General.

Tom C. CLARK, )

Assistant Attorney General.

CHESTER T. LANE, -

Epwarp G. JENNINGS,

W. Marvin SMITH,

Bascal Assistants to the Attorney General.

Dovetas B. ‘Macs,

ae Solicitor,

Irvine J; LEVY,

‘Associate Solicitor,

; 'Department of Labor.

NoveMBER 1943.

** See footnote 5, supra, Pp. 8. P

B. S. GOVERNMENT PRINTING OFFICE: 1943

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.