
    DKISCOLL’S CASE.
    James Driscoll v. The United States.
    
      On the Proofs.
    
    
      Congress appropriate $500,000 “for the construction, under tlie direction of the Secretary of State,” of a building for the- State, War, and Navy Departments. The Secretary enters into a contact with one Ordway for the granite for the building ; and O. agrees to “furnish all the labor, tools, and material necessary to cut, dress, and hox at the quarry the granite aforesaid,” the defendants to pay him “thefull cost of the said labor, tools, and materials,” with fifteen per cent, added, and to furnish superintendents to supervise this work and keep aw account of its cost. The claimant is a laborer under O. ffe signs monthly receipts, from time to time, acknorvledging payment from O. These receipts are returned by 0. to the Treasury and made apart of his vouchers. The claimant works ten hours a day. Se noio claims that the contract between Ordivay and the Secretary of State xuas void; that it teas made ivith the intent of evading the Might-how Zaiv ; and that the claimant was in effect an-employé of the Government, a/nd entitled to extra pay for his ten hours’ service.
    
    I. A prrblic contract not founded uijou advertisement, as required by the Act 2d March, 1861 (12 Stat. L., 220, § 10; Rev. Stat., § 3709), is at most only voidable. When the Government allows it to be performed and does not question its validity, a third person cannot come in and set up that it was void at law. (The judgment in this case affirmed. See post.)
    
    II. Where a contract was entered into between the Secretary of State and an individual, whereby the latter was to furnish all the “ labor” necessary for dressing and boxing certain granite, and to be paid the cost thereof, with fifteen per cent, added, it cannot be deemed an evasion of the statutes known as the Eight-hour Laws. The legal execution of a right in such form as not to come within the prohibition of a statute is not necessarily an evasion of the statute.
    III. Where a contractor is to furnish the “labor” necessary for dressing and boxing the defendants’ stone, and is to receive the cost thereof, with fifteen per cent, added, they having the right to appoint agents to supervise the work and keep an account of its cost, no privity exists between the defendants and the contractor’s laborers, and where the Government is defendant, they are not in any sense Government laborers, nor entitled to the benefits of the Eight-hour Laws. (Affirmed, post.)
    
    IV. The decisions in regard to the Eight-hour Laws reviewed and applied to this case.
    
      
      The Reporters’ statement of tbe case:
    The following facts were found by the court:
    I. In the year 1871, advertisement of the following notice, inviting proposals as therein set forth, was duly published:
    
      u Proposals for granite for the new State Department.
    
    «Oeeioe of Supervising- Architect,
    “ Washington, May 24,1871.
    “ Sealed proposals will be received until 12 o’clock m. of the 22d day of June, 1871, at the office of the Supervising Architect oí the Treasury Department, for furnishing and delivering at the site of the proposed building all the dimension-granite required for the exterior of the new State Department, for which about 180,000 cubic feet will be required. Proposals must state the price per cubic foot for stones whose dimensions do not exceed seventy cubic feet, and the rate of increase in price for stones exceeding twenty cubic feet. The exact average size of the stones cannot at present be given, but approximate forty cubic feet. ' Stones to be quarried and delivered according to a schedule of net sizes that will be furnished the contractor. One inch will be allowed for quarry-dimensions on each worked face of the stone.
    “Each bid must be accompanied by a sample block twelve inches cube of the granite it is proposed to furnish, which must be sound, durable, of uniform color and good grain, free from discoloring or other foreign substances, and capable of withstanding the action of the elements, and that has been fully tested by use in buildings, and is from quarries capable of furnishing the quality and quantity desired within one year, and from which stone has been or is now being used for first-class buildings.
    “Bidders will state how soon they can commence the delivery of stone, and the amount per week they can deliver. They will also state the average and maximum size of stone that can be obtained from their quarry. No bids will be received except from the owners or lessees of the quarries from which the stone is proposed to be furnished. All proposals must be made on the printed forms to be obtained from the Supervising Architect, and be accompanied by a penal bond, in the sum of fifty thousand dollars ($50,000), that the bidder will execute and perform tbe contract if awarded to him, and give bond therefor in the penal sum of one hundred thousand dollars ($100,000), and a valid and binding lease of the quarry to the government as security for the faithful performance of the contract; the lease to take effect upon the failure of the contractor to comply with the terms of the contract. Said lease to authorize the government to take full possession of the quarry, and work it at-the expense of the contractor in case of such default.
    “ The right to reject any or all bids received is reserved. Proposals must be inclosed in a sealed envelope, indorsed ‘ Proposals for granite for new State Department,’ and addressed to—
    “A. B. MULLETT,
    “ Supervising Architect, Treasury Department,
    “ Washington, D. OP
    
    II. On the 19th day of June, 1871,. Albert Ordway submitted to said Mullett the following bid, in answer to said advertisement :
    
      ^Proposal for granite for the new State Department.
    
    “ Bichmond, Ya., June 19,1871.
    .“ I hereby propose to furnish all the dimension-granite required for the exterior of the new State Department, and deliver the same on the site of the proposed building, in conformity with all the requirements of advertisement of A. B. Mullett, esq., .Supervising Architect of the Treasury Department, under date of May 24th, for the following prices:
    “ (59) Fifty-nine cents per cubic foot for stones whose dimen.sions do not exceed twenty cubic feet.
    “ (to) Fine-tenths of one per cent, per cubic foot to be added to •every foot for stones whose dimensions exceed twenty cubic feet.
    “I propose to furnish this stone from quarries situated near Bichmond, Ya., of what is known as the ‘Bichmond’ or ‘James Biver granite,’ samples of which have been furnished the Supervising Architect.
    “In reply to the requirements of the published proposals, I would state as follows:
    “In regard to ‘quality and quantity,’ the ‘Bichmond granite’ meets all the requirements of the advertisement. It ‘has been .fully tested by use in buildings, and is from quarries capable of famishing the quality and quantity desired within one year,’ or in much less time if desired by the department. It‘ has been ’ used in first-class buildings, among which is the Richmond customhouse; ‘is now’ being used for first-class buildings, and among which is court-house at Harlem, N. Y.; wotdd also cite its use in the Washington monument at Richmond; its extensive use for cemetery and monumental work at Greenwood Cemetery, and the large amounts furnished to New York and Philadelphia for paving-blocks, selected for great durability. I further claim, in addition to possessing the qualities made requisite by advertisement, that the ‘Richmond granite’ will work and dress cheaper than any other granite of equal quality now quarried in this country.
    “.I can,‘commence the delivery of stone’ within thirty days from award of contract. Can deliver four hundred and fifty (450) tons per week, and, if required, largely increase that amount. The ‘average sizes of stone that can be obtained from quarry’ are (say) from thirty to eighty cubic feet. The ‘maximum’ size is difficult to state, but should say one hundred feet in length, and of almost any required dimensions that could be lifted by machinery.
    “I am the owner of one quarry, known as ‘James River Quarry,’ situated on south bank of James River, below Richmond, and the lessee of two others, known as ‘ Old Dominion Quarries’ and ‘Powhite Quarry,’ in same vicinity. I propose to give the department the choice of either of my said quarries, or all combined, from which the stone to be taken, and on which leases shall be executed as required under terms of advertisement.
    “Hereto is annexed printed copy of proposals, on terms of which this bid is made and accompanying bond executed.
    “Respectfully submitted.
    “ALBERT ORDWAY.”
    III. In pursuance of said advertisement and bid a contract was entered into between the parties therein named, of which the following is a copy:
    “ Contract between the Government of the United States and Albert Ordway.
    
    “This contract, made and entered into this sixteenth day of November, A. D. 1871, by and between Alfred B. Mullett, Supervising Architect of the new State Department building in course of erection in Washington, D. 0., for and in behalf of the United States of America, of the first part, and Albert Ordway, of the city of Richmond, State of Virginia, of the second part, to whom was awarded a contract for certain granite required for the construe; tion of the new State Department building, on his bid, dated June 19th, A. D. 1871, and received under advertisement dated May 24, A. D. 1871, witnesseth:
    “That the party of the second part covenants to and ■with the party of the first part to furnish from either or both of the quarries near the James River, in the State of Virginia, known as-the 1 James River’ and 1 Green ’ or ‘ Westham ’ quarries, at the option of the party of the first part, and deliver at the site of the aforesaid building, all the granite that may be required for the exterior walls of the superstructure of the-building aforesaid]" the walls .of the court-yard alone excepted, at such time and in such quantities as may Rom time to time be ordered by the party of the first part, and that the granite shall be of the best quality to be obtained from the quarries aforesaid, and of uniform color, free from flaw's, stains, or discoloring matter, and to the entire satisfaction of the party of the first part.
    “ And the party of the second part further agrees to furnish from the said quarries, and at such time or times as may be ordered, and at the option of the party of the first part, and on the same terms and conditions, and at the same rates, and of the same kind and quality, all the granite which may be required for the exterior walls of the superstructure of the entire State, War, and Navy • Department building, the walls of the court-yard excepted, when the - construction of the- same or of any additional part thereof shall be authorized.
    “And the party of the first- part, acting for and in behalf' of the' United States, doth covenant and ‘agree to pay, or cause to be paid, by the United States unto the said party of the second part, or to his heirs, executors, administrators, or assigns, in lawful money of the United States, the sum of fifty-nine (59) cents per cubic foot for every cubic foot in stones delivered and accepted under this contract whose quarried dimensions do not exceed twenty (20) cubic feet, with an -increase in price of nine-tenths (-(%) of one (1) cent per cubic foot for each additional cubic foot in stones whose dimensions exceed twenty (20) cubic feet j that is to say, stones whose dimensions are twenty-one (21) cubic feet shall be paid for at the rate of fifty-nine and nine-tenths (59fL) cents per cubic foot; stones of twenty-two (22) cubic feet at the rate of sixty and eight-tenths (60x8g) cents per cubic foot, and for stones of greater dimensions at a rate of increased price to be determined in like manner.
    “The stones tobe furnished according to schedules of net sizes to be furnished by the party of the first part, one (1) inch to be added to said schedule-sizes for every worked face for quarry dimensions. Payments to be made for the granite in the following manner, viz: Ninety (90) percent, (nine-tenths) of the value of each schedule to be paid on its delivery at the site of the building, and ten (10) per cent, (one-tenth thereof) will be retained until the completion of the entire contract and the approval and acceptance of the same by the party of the first part; which amounts shall be forfeited by the party of the second part in event of the non-fulfillment of this contract to the entire satisfaction of the party of the first part: provided that no more granite than shall be required for the construction of any story shall be included in one schedule.
    “And the party of the second part hereby agrees to furnish all the labor, tools, and materials necessary to cut, dress, and box at the quarry or quarries all the granite aforesaid, in such manner as may be directed by the party of the first part, and , glSO SlbOpS and Sll6aS Sufficient tO -L accommodate one hundred granite-cutters, with á proper proportion of other mechanics.
    I have stricken out and erased the two words “ shops,” sheds,” on this page, this eighteenth day of December, one thousan'd eight hundred and seventy-one, and before any delivery of this contract, as these two words were never intended by either of the parties hereto to form a x>art of this agreement.
    ALBERT ORDWAY. [seal.]
    Witness to signature of contractor:
    W. C. Gisady.
    I consent that the two words “shops,” “ sheds,” on this pose be erasej and stricken out, it being! understood that all my obligations and agreements under this contract «hall continue«
    WASHBUKKEi [sl!Al0
    Wl
    gamoh.
    “And the party of the first part, acting for and in behalf of -the United States, doth covenant and agree to pay, or canse to "be paid, unto the said party of the second part, or to his heirs, 'executors, administrators, or assigns, in lawful money of the United States, the full cost of the said labor, tools, and materials, and also the insurance on the granite, increased by fif-. teen (15) per centum of such cost; and for the purpose of determining the amount thereof, the party of the first part shall ■employ such agent or agents as he may deem necessary, who shall take an account of such cost and expense, and shall, for tbat purpose, be afforded all necessary and proper facilities by the said parly of the second part.
    “And the party of the second part farther agrees to furnish such number of men as maybe deemed necessary for the proper prosecution of the work by the party of the first part, and the party of the second part further agrees to cut as well as furnish and deliver all the granite herein contracted for at such times as may be required by the party of the first part, and in default thereof to forfeit and pay to the United States the sum of one hundred (100) dollars per diem for each and every day thereafter until the final delivery of the same, which sum shall be deducted from any moneys which may be due him; and if that amount be not due him, then his bondsmen are to be held hable for any deficiency, to be recovered of them by suit in the name of the United States.
    “ LEASE.
    “And the said party of the second part further covenants and agrees to and with the party of the first part, to lease, and hereby does let and lease, the quarries in the State of Virginia, near the James Diver, known as the ‘James Diver’ and ‘ Green’ or ‘ Westham ’ quarries, with all and singular the tools, buildings, wharves, and appurtenances thereunto appertaining, unto the said party of the first part, with the full right, authority, and power to enter upon, occupy, and use the same, or procure therefrom any or all such stones as the party of the second part shall fail, omit, or decline to furnish, and said lease shall continue in full force until the final Completion of the delivery of the granite required for the entire new State, War, and Navy Department building; it being understood and agreed that the object of this lease is to secure to the party of the first part a sufficient and suitable supply of granite for said building from the quarry or quarries aforesaid, and that such entry or occupancy of the said premises shall not be made by the party of the first part unless the party of the second part shall be in default,. and unless the party of the first part shall give to the party of the second part eight (8) days’ notice of intention to do so, said notice to be in writing, and served personally upon, or left at the shop, office, or usual place of abode of, the said party of the second part, or with his agent or agents; and in case of said default or failure to comply with the conditions of this contract at tbe end of eight days, the party of the first part shall enter into full and complete possession of the said quarry or quarries, with.their appurtenances as aforesaid, and shall work them at the expense of said party of the second part, and the full expense of said working and procuring the stone, and of boxing, shipping, and delivering the same at the site of the building aforesaid, shall, after deducting the value of the granite as herein-before agreed, be increased by fifteen (15) per centum, which amount shall be deducted from any money or moneys that may be due said party of the second part; and if that amount be not due him, then his sureties are to be held liable for any deficiency, to be recovered from them by suit in the name of the United States. In the event of any such entry, occupancy, or use, under this contract and lease, the quarry or quarries shall be worked by the party of the first part, or under his direction, in such workmanlike manner as not unnecessarily to injure the same, and the appurtenances shall be kept in good repair, usual wear and tear excepted.
    “And the premises and appurtenances shall be duly released and restored to the party of the second part, or his legal representatives, without unnecessary delay, whenever the purpose of this lease, as herein declared, shall have been accomplished.
    “It is further agreed between the parties to this contract that the party of the second part shall execute, with two or more good and sufficient sureties, a bond to the United States in the sum of fifty thousand dollars ($50,000), conditioned for the faithful performance of this contract, and the agreements and covenants herein made by said party of'the second part.
    “It is also covenanted and understood that no member of Congress, or other person whose name is not at this time disclosed, shall be admitted to any interest in this contract; and it is further covenanted and agreed that this contract shall not be assigned except by consent of the Secretary of State, and that any assignment thereof, except as aforesaid, will be a forfeiture of the same.
    “ It is further covenanted and agreed, by and between the parties hereto, that this contract shall be valid and binding when approved by the Secretary of State, and not otherwise, and that no departure from its conditions shall be made without his written consent.
    din witness whereof the parties hereto have hereunto subscribed their names and affixed tbeir seals the day and year first above written.
    “A. B. MULLETT, [seal.]
    “ Supervising Architect.
    
    “ALBERT ORDWAY, [seal.]
    “ Contractor.
    
    “Witnesses to signature of Supervising Architect:
    “J. O. Rankin. '
    “L. E. Gannon.
    “Witnesses to signature of the contractor:
    “Wm. H. Horrslan.
    “H. G. Jacobs.”
    Said contract was approved by the Secretary of State November 18, 1871, and on the 12th of January, 1872, it was entered of record in the office of the clerk of the county court for Chesterfield County, Virginia, the county in which the cjuarries therein mentioned were situated.
    IY. On the 18th of December, A. D. 1871, the following supplementary contract was entered into as therein set forth:
    “ Supplemental contract betioeen the United States of America a/nd
    
    
      Albert Ordioay.
    
    [lilt. rev. stamp, 5 cts.]
    “Whereas, by indenture bearing date November 16th, 1871, the United States of America, by Alfred B. Mullett, Supervising Architect of the new State Department building in course of erection in Washington, D. 0., of the first part, and Albert Ordway, of the city of Richmond, State of Virginia, of .tne second part, contracted for the supply of granite for the exterior walls of the superstructure of the new State Department building, the walls of the court-yards alone excepted, and for the working and dressing of the granite, as by reference to said indenture will more fully appear ; and whereas, further, in said indenture the party of the second part agreed to erect and furnish, at his own cost and expense, shops and sheds sufficient to accommodate one hundred granite-eutters, with a proper proportion of other mechanics: And now, therefore, this indenture, made and entered into this eighteenth day of December, 1871, ■by .and between said parties, witnesseth that it is mutually •agreed—
    
      “That if at any time the party of the first part should deem it necessary that a greater number than one hundred of granite-cutters, with a proper proportion of other mechanics, as therein stipulated, should be employed by the party of the second part at the quarry or quarries, that then the party of the second part will erect temporary shops, sheds, &c., for the accommodation of such additional force, on the written order and under the direction of the party of the first part; and the party of the first part hereby agrees to pay, or cause to be paid, in lawful money of the United States, the cost of such additional shops, sheds, &c., increased by fifteen per centum. In witness whereof the parties hereto have hereunto subscribed their names and affixed their seals this eighteenth day of December, A. D. 1871.
    “A. B. MULLETT, [seal.]
    
      “Supervising Architect.
    
    “Witnesses to signature of the Supervising Architect:
    “H. G-. Jacobs.
    “War. H. Hoffman.
    “ALBERT ORDWAY, [seal.]
    “Contractor.
    “Witnesses to signature of the contractor:
    “W. C. Gkady.,
    “L. E. Gannon.
    “Approved Dec. 19, 1871.
    “HAMILTON FISH,
    “ Secretary of StateA
    
    
      Y. In pursuance of said contract and the supplement thereto,, during the period of the claimant’s employment, said Ordway furnished tools, materials, and labor, and the defendants paid therefor in the manner and form hereinafter set forth.
    YI. The defendants employed a superintendent, paid directly by themselves, whose duty it was to supervise and see that the work was done according to contract, that the price paid did not exceed the market rates, and that the plans were- followed and the stone perfect; to verify the time of the employes by himself or his clerk; to keep an account of the cost of each particular stone and the name of the man who cut it; to approve of all purchases of material which Ordway had to make for use in cutting, dressing, and boxing stone; and, at the end of the month, to certify Mr. Ordway’s bills for tbe same and that be bad expended tbe materials on tbe work. It was bis dnty also to notify tbe contractor that tbe services of any man be might specify were not satisfactory, and in case tbe contractor persisted in retaining him, it would have been bis dnty to refuse to certify tbe pay-rolls. Tbe defendants also employed a clerk to-tbe superintendent, paid in like manner directly by themselves.
    VII. In January, A. D. 1872, on tbe recommendation and at tbe request of A. B. Mullett, Supervising Architect, as aforesaid, B. A. Miller was employed as foreman of granite-cutters on said work under said contract, was entered on tbe pay-rolls monthly as an employé of said Ordway, and was paid through said Ordway in tbe same manner as tbe claimant was paid, and Ordway was allowed fifteen per cent, additional, as in tbe case of all other employés on said, work except said superintendent and clerk.
    VÍTT- The employés were paid in tbe following manner: When a man was set at work, tbe foreman, Miller, gave bis name to tbe clerk of tbe superintendent aforesaid, who put it on tbe time-book, and tbe foreman of tbe gang put tbe price in pencil opposite tbe man’s name. Tbe price was not agreed upon at first, Mr. Ordway giving tbe men to understand that be would pay whatever wages be would be allowed by tbe superintendent. Said clerk of tbe superintendent kept a ledger-account, made out a pay-roll at tbe end of each month, and bad tbe men sign tbe same. Said pay-roll was then approved by tbe government superintendent and debvered to Mr. Ordway, who took tbe same to Washington and received payment therefor from the defendants, with fifteen per cent, added, according to tbe contract. He then returned, and paid tbe men according to the pay-roll and their receipts thereon.
    Tbe pay-roll for tbe month of March, 1872, was as follows, and all tbe subsequent monthly pay-rolls were in like form; and they were all surrendered to and retained by tbe government-officers in tbe Treasury Department:
    “No. 1. — Pay-roll of the meoha/nies and laborers on the new State: Department, d?c., during the month of March, 1872.
    “We, tbe undersigned, acknowledge to have received from Albert Ordway tbe amounts hereunto set opposite our names, respectively, in.full payment of our services for the. time specified.
    
      
    
    “I certify that the persons whose names appear on this payroll have performed the services hereunto stated, and that the services have been exclusively devoted to the work of granite-cutting for the new State, War, and Navy Dex>artments, near city of Richmond, State of Virginia; that the wages x>aid each are not over the usual market rates;. and that each person was a competent workman for the branch of work on which he was employed, and that a fair day’s work was p»erformed by him.
    “B. WILLARD SMITH,
    “ Superintendent mid TimelceeperP
    
    And the following is a copiy of the voucher upon which said Órdway was y>aid for said month of March', 1872; and all subsequent monthly vouchers were in like form:
    “ The United States to Albert Ordway, Ur.
    
    “On account of the approximation for the construction of the new State, War, and Navy Departments at Washington, D. O.
    Date. Designation. Application. Amount. 1872. Mar. 30 Labor furnished during month of March, as per accompanying pay-roll as voucher. Add 15 per cent., as per contract. Under my contract to “cut, dress, and box” granite for new State, War, and Navy Departments building. $23, 820 38 3, 573 05 27, 393 43 Less overpayment to James Wilson. $0 38 Less overpayment to Thomas Berkley. 19 Less .overpayment to Philip Cook. 7 00 Less overpayment to John Grady. 50 8 07 Add 15 per cent., as per contract. 1 20 - 9 27 27,884 16
    
      “ I hereby certify that the articles above enumerated have been received by me in good order and of the quantities above stated.
    “E. WILLAED SMITH,
    “ Superintendent and TimelieeperP
    
    "1 certify that the articles above enumerated have been received and the services performed; that they were necessary for, and have been or will be applied to, the construction of tlie new State, War, and Navy Departments at Washington, D. C.; and that the prices paid were just and reasonable.
    “E. WILLAED SMITH,
    “ S%hperintendent and Time-keeper.”
    IX. In March, 1872, the claimant, Driscoll, applied for work to said Miller, who put him to work ; gave his name to said clerk of the superintendent, who entered it on the time-book; and nothing was said about the number of hours work per day nor the wages. The rate of wages was fixed and put on the time-book by the foreman of the gang, who was paid in the same manner and on the same rolls as said Miller, Driscoll, and the other employés.
    At the time the claimant thus commenced work, the other men were laboring ten hours each calendar day, and throughout the time of his employment he worked the same number of hours each calendar day as did the other stone-cutters employed in like manner.
    X. During the month of March, 1872, the claimant worked 51-calendar days, 10 hours each day. On the pay-roll for that month he was credited with 5 J days’ work at $4 a day, amounting to $22; and he receipted therefor in full payment for his services for the túne specified, as appears by the pay-roll; a copy of which, so far as is material, is set forth in the eighth finding.
    In the next following month of April he worked 25J days, and May 25 days, each of 10 hours; and was credited each month with said number of days work, respectively, at $4.25 a day bn the pay-roll, which was made out, signed, and paid in the same form and manner as that for the month of March aforesaid.
    In the month of June, 1872, the claimant worked 10 days, of 10 hours each, when said Ordway received a letter from Supervising Architect Mullett, of which the following is a copy:
    “Treasury Department,
    “ Oeeice op Supervising- Architect,
    “ Jimia 11,1872.
    “ Sir : You will please give the mechanics and laborers employed by you on the work of cutting and boxing the granite for the new State Department in this city the benefit of the eight-hour law from and after the date of this letter. It is not. expected that any reduction will be made on this account.
    “ Yery respectfully,
    “A. B. MULLETT,
    “ Supervising Architect.
    
    “Albert Ordway, Esq.,
    “ Richmond, Ya.”
    
    By reason of the receipt of said letter, said Ordway immediately reduced the hours of labor of all the workmen to eight hours each calendar day, without reducing the rate of wages per day.
    The claimant worked thereafter during said month 14 days more 8 hours each day, and at the end of the month was credited with 24 days at $4.25 per day, signed the roll acknowledging payment, and was paid in manner and form as for said month of March.
    He also worked in the following July 25 days; September, 23J days; October, 25 days; November, 12¿ daysj December, 22 days; January, 1873, 26 days; and February, 17J days, each 8 hours per calendar day, for which he was credited said number of days, respectively, with wages at the rate of $4.25 for said month of July and $4.50 for each of the other months, and was paid upon monthly pay-rolls, and made out and receipted by him in like manner and form as before set forth.
    Thereafter, and before the work was renewed in March, 1873, said Mullett, the Supervising Architect aforesaid, told Mr. Ord-way that he would consider 10 hours a day’s labor, and would only.pay him at that rate, and from that time forward all the laborers were required to labor 10 hours each day for a day’s work.
    And the claimant worked in 1873 — March, 13 days; April, 21 •days; May, 23J days; June, 24§ days; July, 26 days; August, 24J days; and September, 24 days, 10 hours each day, for which he was credited on each monthly pay-roll for said number of days, respectively, at $4.50 per day, receipted for the same in full payment for his services, and was paid in manner and form as hereinbefore set forth for the month of March, 1872.
    XI. The price per day received by the claimant from month to month during his service was the same as that paid by private parties for like services of ten hours per day in the same locality. And the government superintendent aforesaid informed Mr. Ordway, the contractor, that his instructions were to certify the cost and expenditures made by him, the said Ordway, upon the basis of wages paid in the locality.
    (And, at the request of the claimant:)
    XII. Ordway represented to claimant and the other cutters •that he was executing said work as a contractor under the United States, and not as a servant or mere employé of the .government, and thus induced the said cutters and claimant to believe this, and they did said work and gave the receipts here-inbefore stated under the belief induced as aforesaid that Ord-way was in fact such contractor.
    XIII. The quarrying and furnishing the granite in the rough was done and performed under the superintendence, direction, and control of Ordway, the contractor, exclusively, subject only to inspection and acceptance by the United States.
    XIY. The United States kept a store-house at the locality where said granite was cut and dressed, from, which a great portion of the materials used in the work in which claimant was engaged were supplied; and the tools used in said work were marked with the letters “ U. S.,” and belonged to the United •States, and were turned over when work was ended or suspended as government property.
    
      Mr. Joseph Casey, Mr. Samuel Bhellabarger, and Mr. Joseph .Daniels for the claimant:.
    Whenever the contract employing “laborers, workmen, or mechanics,” by or on behalf of the United States, does not •otherwise provide,, then, and in every such case, the law makes •eight hours to constitute a day’s work; and such law allows and gives snob empldyé for every eight hoiirs which he was required to work that price which was fixed on between the parties as the pay for a day’s work.
    In other words, the pay agreed upon for “ a day’s work” the law construes and makes to be the pay or aihount recoverable for every eight hours worked, where the contract does not fix or define what time is to constitute a day’s work.
    That otir employment was one by the United States is conclusively shown 'by the facts, showing that the United States employed, paid, timed, controlled, and in all respects regulated the pay and the work of the cutters; that the employment Was on “behalf of the United States” and the work was on its building j that Ordway was a mere clerk in the Bureau of Education ; that precisely as all other employés so these cutters were employed, superintended, them time kept, and them payrolls certified -by the United States; that they were dealt with as entitled to this eight-hour law for eight months •, that Ord: way 'incurred no manner of risk or responsibility as a contractor^ but, on the contrary, received as wages a commission of fifteen per cent., and that this whole scheme is proved and confessed to be a mere device to get around and defraud the eight hour-lawi Take these facts and lay them down by the side of the law as settled in siich cases as Stone v. Oodmcm,- 15 Pick., 297, and it is completely demonstrated that Ordway was not a contractor nor the master of these cutters, but was himself a mere servant under the employment of the United States precisely as the cut. ters were, except that his compensation. Was a per centage and theirs a per diem.
    These meh were employed both “by” and “on behalf of” the G-overhment of the United States within the sense of these words as used in the eight-liour law ; and the only question left is the one whether “receipts-in frill,” or the like, given by the cutters under the imposition and .fraud of this device, resorted to for the purpose of getting around the eight-hour law, shall be- allowed, by the courts, to accomplish its .fraudulent ends as against these laborers.
    Ordway was in fact agent in employing, and acted' within, the scope óf his agency when he employed these' meh for the United States. The United States was the real .principal, and in substance they wrought for the United States in every stroke they struck. ,.
    
      Suppose Orclway did conceal this fact, and tbat tbe bands bad no suspicion tbat tbe government was tbeir employer, does tbat deliver tbe government from being sucb employer-? Manifestly not; and tbe law on tbis point is declared to be conclusively “settled not only by tbe courts of England andDf'many1 of tbe States, but by tbe Supreme Court of tbe United States, New Jersey Steam Navigation Company v. Merchants’ Bank, 6 How., 381, and cases there cited.” These are tbe words of Grier in Ford v. Williams, 21 How., 289. Tbe principle here declared settled is there stated by the court in these words': “When a party deals with an agent, without any clis'clositre of tbe fact of bis agency, be may elect to treat tbe after-discovered principal as tbe person with whom be contracted.”
    Tbis principle explicitly estabbsbes as a matter of strict and absolute law tbe relation of employer and employé between these men and tbe United States, and gives them tbe election of treating either Ordway or tbe United States as them employer; and tbis upon tbe plain and just principle tbat, in substance and fact, they wrought for tbe United - States under an employment effected by tbe governin'ent’s agent, be acting within tbe scope of bis actual authority'. In sucb a case they worked for and on behalf of tbe United States, whether Ord-way disclosed tbe fact tbat tbe United States was principal or not. It is true tbat “if a party is informed that-the person with whom be is dealing is merely tbe agent of another, and be prefers to deal with tbe agent personally on bis own credit, be will not be allowed afterward to change the principal.” (21 How., 289.) In the case at bar, we have already Seen -that not only did not these mechanics prefer to deal with Ordway on bis own credit, but, on tbe contrary, tbat a most cunningly-devised system of delusion and fraud upon tbe law was contrived, resorted to, and practiced for tbe concealment of tbe real principal, and to delude tbe men into tbe belief tbat Ordway “bad tbe job” and tbat they were bis bands.
    ' By tbis principle in Ford v. Williams, then, .'do we also establish tbat we are entitled to tbe benefits of tbis eigbt-bOur law.
    
      Mr. Assistant Attorney-General Simons ' (with whom was Mr. John S. Blair) for tbe defendants:
    Driscoll was in tbe employ of Albert Ordway, and not in any way employed by tbe government. He was not a stone-cutter ■on tbe new State Department, Washington, D. C., but was cutting near Richmond, Ya., on stone that Ordway was furnishing for the State Department. There was no agreement as to the priee of his labor, except such as was made from month to month 1 after the labor for the month was performed.
    Ordway furnished the men, tools, &c., and the cutting was done in the manner directed by the superintendent acting on behalf of the United States.
    The United States never by any of its officers, either directly ©r indirectly, recognized Driscoll or any of his colaborers as in its employment.
    Ordway was explicit and constant in his announcemetns to them that he was a contractor and employer and not an agent, and the plaintiff throughout his form of service believed and accepted Ordway as his employer.
    In the case of Cleaves v. Stockwell (33 Maine, 341), the defendants agreed to pay to the employers of the plaintiff them expenses, disbursements, and liabilities, but (as in this case) did not stipulate to pay or be responsible to others. It did not appear that plaintiff, rendered his services to defendants, or upon their credit. The plaintiff worked upon a dam for the benefit of the defendants, and the court held that it was but the ordinary case of one employing another to do a particular job at a fixed price, or at cost, where subcontractors or laborers cannot look to the principal, but to their immediate employer, and refused judgment for the plaintiff.
    Claimant’s counsel have cited two cases to support their position that Ordway was merely the agent of the United States In hiring the plaintiff, viz, Stone v. Codman (15 Pick., 297) and Railroad Company v. Hanning (15 Wall., 649).
    In these two cases it was decided that the relation of the contractor to the defendant was such as to render applicable the maxim respondeat superior, and the defendant in each case was held hable to third parties for the want of skill of the employés of the contractor. The syUabus of the Railroad Company v. Hanning, as quoted in claimant’s brief, is not a correct statement of the decision. The extent of that decision was that the defendant was responsible for the negligence of the employés, but the court did not decide that the defendant would be liable to the employés for their compensation, nor even that in any sense they were the employés of the defendants. The two cases cited differ from tlie present one in this: They were actions of tort; this is an action on contract. The test, and the only test applied by Mr. Justice Hunt in the Hanning case was, had the defendant such supervision, direction, and control over the work as to render the negligence of the workmen its negligence;, was it the company or the contractor who had such directory control over the employés as to be in fault for their negligence ? The test in this case is, was there a privity between the defendants and plaintiff, or did the defendants authorize Ordway to contract debts against them; did they expressly or impliedly in the contract agree to pay the laborers for their services ?
    But it is asserted in claimant’s brief that the United States was an undisclosed principal. This proposition so disregards the established distinctions between public and private agents, and all the presumptions that a person dealing with an agent of the government is bound to know the extent of the agent’s authority, that I await the citation of some decision supporting it, before entering upon its discussion. But claimant goes still further. He contends that he can enforce against the undisclosed principal, not the contract he made with the agent,-but a contract which he asserts .would have been made between himself and the principal. But Avhat that contract would have been is beyond the power of the court to decide. In fact, the contract made by him with the agent has been executed, and his suit is to recover from this undisclosed principal something outside and beyond the contract. His position is that he is not bound by Ms contract with the agent, because he was unaware at the time that there was an undisclosed principal; that the receipt in full is of no force, because signed under a mistake. Of course, tMs mistake must have been one of fact, and I conceive that the burden is upon him to show that he Avas ignorant of some essential fact at the time of signing or receiving the money.
    The fact is, that Driscoll was working under an implied contract resulting from his acceptance without protest of his compensation for the preceding months, or else was working simply under a quantum meruit.
    
    In conclusion, I would quote frqm the opinion of Mr. Justice Hunt in the case of Arthur Martin, (12 C. Cls. R., 87:) “Principals, so far as the law can give the power, are entitled to employ as many workmen, and of AvhateAer degree of skill, and at whatever price they think fit; and, except in some special cases, as of children and orphans, the hours of labor and the price to be paid are left to the determination of the parties interested. The statute of the United States does not interfere with this principle.”
   Richardson, J.,

delivered the opinion of the court:

This is an action for work and labor, wlierein the claimant seeks to recover payment for one-quarter part more in numbers of day’s work than were allowed to him on settlement, on the ground that his day’s works wore reckoned by calendar days, in each of Avhieli he labored ten hours, whereas he insists that he is entitled to be paid for every eight hours, as a day’s work, the same wages allowed to him for each calendar day in which he worked ton hours, under the provision of the act of Congress passed June 25,1868 (15 Stat. L., 77), declaring that “eight hours shall constitute a day’s work for all laborers, workmen, and mechanics now employed, or who may hereafter be employed, by or on behalf of the Government of the United States.” (Now Bev. Stat., § 3738.)

At the outset the claimant is met with the objection on the part of the defendants that he was not in their employment, but was in the service of Albert Ordway, a contractor, who had agreed to furnish all the labor, of ■which that of the claimant formed a part, and to whom they have paid the agreed price, and therefore there is no privity of contract between the parties to this action, and the defendants are under no obligations to the claimant.

In the Act of March 3,1871, chapter 113, section 2 (16 Stat. L., 494), making appropriations for legislative, executive, andjudicial expenses, it was enacted “ that the sum of five hundred thousand dollars be, and hereby is, appropriated out of any moneys in the Treasury not otherwise appropriated, for the construction, under the direction of the Secretary of State, on the southerly portion of the premises now occupied by the War and Navy Departments, a building which will form the south wing of a building that when completed will be similar in the ground plan and dimension to the Treasury building, and provide accommodations for the State, War, and Navy Departments. * * * *”

On the 16th of November, 1871, the Secretary of State, through A. B. Mullet, Supervising Architect, in behalf of the United States, entered into a written contract, under seal, with Albert Ordway, by which said Ordway covenanted to furnish all the granite for the exterior walls of the superstructure of said building, the walls of the court-yard excepted, in the manner and at the prices therein agreed upon to be paid by the defendants, the terms of which are not material in this case. In addition to furnishing the stone, it was therein provided thatu the party of the second part [said Ordway] hereby agrees to furnish all the labor, tools, and materials necessary to cut, dress, and box at the quarry or quarries all the granite aforesaid in such manner as may be directed by the party of the first part [the defendants] • * * * and the party of the first part, acting for and in behalf of the Dnited States, doth covenant and agree to pay, or cause to be paid, unto the said party of the second part, or to his heirs, executors, administrators, or assigns, in lawful money of the United States, the full cost of the said labor, tools, * * * and materials, and also the insurance on the granite, increased by fifteen (15) per centum of such cost; and for the purpose of determining the amount thereof, the party of the first part shall employ such agent or agents as he may deem necessary, who shall take an account of such cost and expense, and shall for that purpose be afforded all necessary and proper facilities by the said party of the second part.”

Ordway entered upon the performance of his contract, and furnished all the labor, tools, and materials for dressing and boxing the granite during the whole period of the claimant’s employment, and was paid therefor by the defendants in monthly payments, upon vouchers made out each month for the cost of labor, &c., with fifteen per cent, added thereto, according to his terms of the contract.

Among the numerous laborers employed was the claimant, who worked from March 25, 1872, until October, 1873, except the month of September, 1872, eighteen months in all. He commenced without an express or special contract, and at the end of each and every month for the whole eighteen months, he, with all the other laborers, signed a receipt, in which he and they acknowledged “to have received from Albert Ordway the amounts set opposite them names, respectively, in full payment for our [their] services for the time specified,” and the number of day’s work for the months, the rate of wages, and the full amount thereof were set opposite each name. These receipts were returned monthly to the Treasury Department by Mr. Ordway with his hill, and. made part of his voucher, and he was paid therefor by the defendants, with fifteen per cent, added, as before stated, and the claimant was paid according to his receipt by Ordway.

In the midtifarions transactions of business, the hiring of one person to furnish the labor of others, in which the latter are the servants and employes of the person who agrees to furnish the labor, and who alone is responsible to them for their wages, with no privity of - contract between them and the party for whose tdtimate use the work is done, is of such daily occurrence as to be a familiar matter of common knowledge.

A clearer case of that kind could not be presented than is shown by the written documents set forth in the findings, wherein it was expressly agreed that Ordway should furnish the labor, and the defendants shoxdd pay Mm the cost thereof, with fifteen.per cent, added; and from which it appears that the claimant was one of the workmen who performed the labor, that he received from Ordway his pay monthly during eighteen months, and that he regularly each month gave a receipt acknowledging that he had received from said Ordway the wages specifically mentioned in frill payment for his services for the time specified.

The claimant’s counsel endeavor, in their argument, to overcome the force of the written contract between the defendants and Ordway and the legal effect of an employment of the claimant by him on three grounds:

1. That the contract between the defendants and Ordway, or so much thereof as relates to furnishing labor, was void because it did not conform to the terms of the public notice inviting proposals, in that, the clause by which Ordway was to furnish labor and the United States were to pay him therefor with a percentage added was not founded on anything set forth in the advertisement, as they urge was necessary under the act of March 2, 1861, § 10 (12 Stat. L., 220, now Devised Statutes, § 3709), requiring all purchases and contracts for supplies, &c., in any of the departments to be made by advertising, except in certain cases therein stated.

To this proposition it is a sufficient answer, that at most the contract was only voidable, and if the defendants might have .avoided it in whole or in part for any reason, they never availed themselves of their right, and the contract was never repudiated, but was performed and fully executed on both sides for the period of the claimant’s employment. What has been done with the concurrence and to the satisfaction of both parties to a voidable contract cannot be set aside and undone by others not parties thereto.

2. That the contract was absolutely void, because, as they allege, it ivas made with the intention and for the purpose of evading the “ eiglit-hour law,” and so was a fraud upon the claimant and all other laborers, workmen, and mechanics employed by Ordway in its execution. .

What was the motive of the honorable Secretary of State in entering into a contract in this form is not found as a fact, but if we were called upon to infer it from the transactions set forth, we might think that he desired to avoid liability on the part of the United States to a great number' of workmen separately, preferring to consolidate the liability to one person, or that he wished to have, to.a greater or less extent, the personal supervision of an experienced contractor, in his own interest, over the employes, or the responsibility of one contractor and his bondsmen for the acts of all the laborers, or that, deeming it his duty to advance the work intrusted to Ms judgment and discretion to the utmost extent that a judicious and economical expenditure of the money appropriated would effect, he did contract with Ordway to furnish the labor, because, among other advantages to be gained thereby, he believed that Ordway, as a contractor, coidd make better terms and employ laborers at a less rate than the defendants could directly through their officers and employés, and in either case we see nothing illegal or improper in such motives or the action induced thereby. To evade an act of Congress by the legal execution of a right in such a ■form as not to come within the terms of the act is by no means necessarily a violation of it. But with the motives of the Secretary of State or any other parties to the contract we have nothing to do. They are wholly immaterial in this case.

3. That whether the contract was void of not, the officers of the United States so acted in the transactions as to make the defendants principals, with Ordway as their agent, and so they are liable to the claimant for payment for his services as though he had been directly employed by or for them.

It is true that the findings show that the defendants did employ, directly, a superintendent to look after the work, see that the laborers were not paid more than market rates, and to certify to the pay-rolls, and otherwise to supervise the work; and also a clerk, who kept a ledger account of the time of the workmen, made out the pay-rolls, and saw that they -were properly signed. But all this was in pursuance of their interest under the contract with Ordway, and of its express provisions that they might employ such agent or agents as they might deem necessary, to take an account of the cost and expense j and for that purpose they were to be afforded all necessary and proper facilities by said Ordway. And it is true that Ordway conformed to the wishes, or directions, if they may be so called, of the defendants’- Supervising Architect in the employment of men, in the hours of labor required of them, and their compensations, and followed in other matters, to some extent, if not entirely, the directions of the government superintendent. All this is entirely consistent with their contract, and does not make them principals in the employment of the claimant and his fellow-workmen.

The interest of the United States and that of Ordway were directly antagonistic in respect to the price to be paid laborers, because the more he paid the greater his commission, and as the defendants were to pay him for both, they would be doubly the losers by too high wages; and it was natural, proper, and judicious for their officers to take all means within their power to see that they were not made to pay more than the market rates of wages, and to exercise their influence and authority upon Ord-way to keep him within reasonable bounds in incurring expenses and the cost of labor which they were finally to pay him for. Such an interference was not sufficient to make the defendants principals, liable directly to the claimant.

But even if the defendants were the principals, directly liable to the claimant, we are of opinion that he has no cause of action. In Martin v. The United States (10 C. Cls. R.., 270), we held that the “eight-hour law” does not regulate the compensation to be-paid to employés, but leaves that to be determined by the contract of the parties or the rules of law, and that it does not place laborers and mechanics under any disability in making contracts, nor prohibit them from working more than eight hours each calendar day, nor in any way prevent them from waiving its intended beneficial prolusions, and our opinion was sustained by tlie Supreme Court on appeal, and tlie judgment which we entered against our opinion, jproforma, in favor of the claimant for the purpose of an appeal, which could not otherwise have been availed of by reason of the sum in controversy being less than $3,000, was reversed. (United States v. Martin, 94 U. S. R., 400, and 12 C. Cls. R., 87.)

The Supreme Court held, substantially as we did, that the act was a direction by Congress to the officers and agents of the United States, establishing the principles to be observed in the labor of those engaged in its services; and that it prescribes the length of time which should amount to a day’s work when no special agreement is made upon the subject.

In this case the claimant was employed and set at work without any express contract as to either the hours of labor or the amount of his wages. This created an implied contract, as strong as any express contract can be, that he should be paid on a quantum meruit for what his services should be worth. And it appears by the findings that his services were worth, measured by the wages of laborers employed in like manner on like work in the same locality, precisely what he received for ten hours’ work per day. If, in the computation, his time should be reduced to eight hours for a day’s work, then his compensation should be reduced in the same proportion in order to pay him on a quantum meruit, and the result would be the same as was reached in the settlement.

But the case is stronger against the claimant even than that, for at the first he began work at ten hours a day, and at the end of the first calendar month, in which he worked five and a half days, his wages were agreed upon in the strongest possible manner, by being put in writing and receipted for by him in full payment for his services during the period specified. And this he did month after month to the end of his term, giving eighteen receipts in all, in each of which the time of service by days, the rate of compensation per day, and the amount were distinctly specified, and he receipted therefor in full payment. Thus by his own agreements he is concluded.

There is but one other ground on which the claimant’s case can be sustained, even if the defendants are the principals, and that is, as practically put forth in the argument, that the “ eight-hour law” was intended to give, and by its very terms does operate to give, to all laborers, workmen, and mechanics employed by or on behalf of the Government of the United States, who labor ten hours a day, twenty-five per cent, more wages than they agree to work for, when there is an express contract, or than them services are worth, as measured by like services between individuals in the same locality, when there is no express contract.

We know of no rule by which that intention or effect can be drawn from the language of the act or otherwise; and to adopt such a construction would be no more reasonable than it would be to hold that the act operates to give to laborers who work only six hours a day one-fourth less rate of wages than is agreed upon when there is a special contract, or than the services are worth when there is no special contract.

For these reasons we are of opinion that the claimant is not entitled to recover, but as it is understood that there are some two thousand cases on the docket of this court awaiting the final determination of the questions herein discussed, and the parties desire the opinion of the court of last resort thereon, we are disposed to do as we did in Martin’s case, enter judgment pro forma for the claimant, that the case may be taken to the Supreme Court on appeal, and the opinion of that tribunal may be had on all these questions, which affect so large a class of citizens, involve the construction of a statute which may apply to -so many employés of the government, and are material to the accounting-officers in the settlement of accounts under so many contracts made by public officers, that their final authoritative determination is a matter of public importance.

Judgment will therefore be entered in favor of the claimant for $244.37.  