# Brief for the United States — United States v. Laudani > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0236%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1944 - **Citation:** 320 U.S. 543 ## 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. --- 20 38 . : E a II 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 . ‘ ’ : 6 q . 4 ‘ ° @ Fear > -— Snthe Supreme Court of the inited States OcTOBER TERM, 1943, - No? 71 THE UNITED States OF AMERICA, PETITIONER | v. 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 3 | 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 6, 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- 9 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 o » °- : 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 - 12 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 14 (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 15 ‘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 17 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 20 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- 13 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. © 416, 423, 424, 425, 430,443, 444. 445, 446, 455, 456, 457, 455. 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. au - ployee,” * etce.). One who “falsely” represents himself to be = —" ae oe > » aS ee ae ee 23 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- a 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- ’ Pa 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 20 : 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 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. o 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 37 “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). . 38 - { ; 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. 39 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- © [hid 790. oo | 40 4 ful as 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. 43 _ 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 ia * 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 44 . 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0236%3A3. Public record. Not legal advice.