I approve the Judge Advocate General's conclusion that one who is charged by statute, and has undertaken by contract, not to permit his employees to work more than eight hours a day cannot escape responsibility by pleading that the men worked voluntarily and that he paid no attention to such detail. Other factors, however, require consideration, as pointed out in your letter.

The foregoing statute prescribed a civil penalty. In connection therewith it is necessary to consider a penal statute upon the same subject, which was then in effect and was saved from modification or repeal by an express provision in the later Act. I refer to the Act of August 1, 1892, c. 352, 27 Stat. 340 (U. S. C., Title 40, Secs. 321-323), which is copied below:

"That the service and employment of all laborers and mechanics who are now or may hereafter be employed by the Government of the United States, by the District of Columbia, or by any contractor or subcontractor upon any of the public works of the United States or of the said District of Columbia, is hereby limited and restricted to eight hours in any one calendar day, and it shall be unlawful for any officer of the United States Government or of the District of Columbia or any such contractor or subcontractor whose duty it shall be to employ, direct, or control the services of such laborers or mechanics to require or permit any such laborer or mechanic to work more than eight hours in any calendar day except in case of extraordinary emergency.

"SEC. 2. That any officer or agent of the Government of the United States or of the District of Columbia, or any contractor or subcontractor whose duty it shall be to employ, direct, or control any laborer or mechanic employed upon any of the public works of the United States or of the District of Columbia who shall intentionally violate any provision of this act, shall be deemed guilty of a misdemeanor, and for each and every such offense shall upon conviction be punished by a fine not to exceed one thousand · dollars or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof."

Section 4612 of the Revised Statutes (U. S. C., Title 46, Sec. 713), which was in effect when each of the foregoing acts was passed and is still effective, provided that "every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board" a vessel belonging to a citizen of the United States "shall be deemed and taken to be a 'seaman "", and it defined "vessel" as comprehending "every description of vessel navigating on any sea or channel, lake or river * *" Referring to this section, the Supreme Court concluded that workers on floating dredges, who are "seamen " within its provisions, cannot be considered as "laborers" or "mechanics " under the Act of August 1, 1892. Ellis v. United States, 206 U. S. 246, 259.

The case cited was decided May 13, 1907. Subsequently, Congress again used the words "laborers" and "mechanics" in the Act of June 19, 1912, with necessary effect as indicated in the following excerpt from an opinion rendered by Attorney General Wickersham under date of November 27, 1912 (29 Op. 583, 586).

Clearly the Act of June 19, 1912 (37 Stat. 137), must receive the same construction. That statute was passed for the purpose of enlarging the scope of the eight-hour law so that it should not be confined to labor on the public works of the United States,' but should apply to all Government contracts generally. It did not, however, purport to enlarge the class of employees entitled to the benefit of the act but limited it, as before, to 'laborers or mechanics.' These words had, as has been pointed out, received a fixed judicial construction so as not to include 'seamen' and the term 'seamen' had been held to include all persons serving in any capacity on vessels such as dredges, scows, barges, etc. As Congress deliberately chose to retain the term 'laborers or mechanics' in the act of June 19, 1912, after it had been the subject of judicial interpretation, that interpretation must be read into the act, so that persons employed on dredges are no more within the provisions of this later act than they were within those of the earlier act of August 1, 1892."

Later, by the Act of March 3, 1913, c. 106, 37 Stat. 726, Congress amended the Act of August 1, 1892 (the penal statute), so as to make it applicable both to "laborers and mechanics" and to all persons performing " services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor," with a proviso that nothing contained therein should apply to such dredge workers "while not directly operating dredging or rock excavating machinery or tools." The purpose of this amendment was thus stated by the Senate committee which reported it (S. Rept. 1056, 62d Cong., 2d Sess.):

"The legislation provided for in the bill makes the eighthour workday applicable to dredge workers on Government work just as it is now applicable to other workers on Government work. By a decision of the United States Supreme Court in Ellis v. The United States (206 U. S. 246) it was held that the words 'laborers and mechanics' in the act of 1892 do not include workmen engaged in ocean dredging; that the latter fall within the category of seamen and were subject to maritime jurisdiction. The proposed legislation supplies this omission in the law and brings workers in Government dredging and in dredging for the Government under the eight-hour day."

The amendment did not affect the prior holdings that dredge workers are not laborers or mechanics, within the meaning of those words as used in the eight-hour legislation. It merely provided for what the committee termed an "omission in the law" by extending it to dredge workers performing duties of the nature indicated in addition to "laborers and mechanics," and it expressly amended only the penal statute, using no language even remotely suggestive of purpose also to amend the separate statute providing for a civil penalty. If in this, Congress evidenced a view that dredge workers (or some of them) should be subject to the requirements of the eight-hour laws, it also evidenced legislative acceptance of the prior holdings that dredge workers are not "laborers and mechanics," within the meaning of the words as used in those laws.

Considering the foregoing, it is my opinion that members of the crew of a dredge or other like floating plant are not

to be deemed laborers or mechanics within the meaning of the Act of June 19, 1912, and that its provisions are not applicable with respect to their employment. Of course, you will understand that this conclusion is limited to the Act mentioned and is without bearing upon the application of the penal statute which is also discussed herein.

Respectfully,

To the SECRETARY OF WAR.

HOMER CUMMINGS.

OFFICE OF RECORDER OF DEEDS OF THE DISTRICT OF

COLUMBIA

The Recorder of Deeds of the District of Columbia is an officer of the municipal government of the District of Columbia. Such officer is required by law to submit estimates for appropriations for his office to the Commissioners of the District of Columbia, and to submit to hearings by the Commissioners on such estimates.

DEPARTMENT OF JUSTICE,

January 3, 1935.

SIR: I have your memorandum of December 21, transmitting for my consideration the following questions submitted by the Recorder of Deeds of the District of Columbia:

"First: Whether or not the office of the Recorder of Deeds of the District of Columbia is an independent office, not attached either to the government of the District of Columbia or to any department of the general government.

"Second: If question Number one is answered in the affirmative, is it mandatory that the Recorder transmit through the District government its estimates covering appropriations; or submit to a hearing on said estimates before the Commissioners of the District of Columbia, or in any wise submit to the jurisdiction of the Board of Commissioners of the said District of Columbia.

"Third: Whether there is not vested in said Recorder of Deeds the right to submit directly to the various departments of the government for direct action any matter pertaining to the finances or conduct of his office."

The Act of Congress of March 3, 1801, c. 24, 2 Stat. 115, imposed upon the Clerk of the Circuit Court of the District

of Columbia "the same duties respecting the recording of deeds * * as are now performed *

by the clerks of the counties of the respective states of Maryland and Virginia." The Act of February 14, 1863, c. 34, 12 Stat. 651, created the office of Register of Deeds, to be appointed by the President by and with the advice and consent of the Senate, and charged him with "all the duties respecting the recording of deeds and other instruments of writing" theretofore performed by the Clerk of the Circuit Court. The title of the office was changed to "Recorder of Deeds" by the Act of March 3, 1869, c. 151, 15 Stat. 341.

The Act of February 21, 1871, c. 62, 16 Stat. 419, 425, provided that the office and duties of Recorder of Deeds "shall remain as under existing laws till modified by act of congress", but authorized the local legislative assembly (subsequently abolished by the Act of June 20, 1874, c. 337, 18 Stat. 116) to impose upon him "such additional duties * * as may be necessary to the due enforcement of the laws of said District." The Court of Appeals has stated that "the Recorder of Deeds is in the category of ministerial officers." Dancy v. Clark, 24 App. D. C. 487, 499.

Until 1926 the fees collected by the office were applied directly to its support. Senate Report No. 490, 69th Cong. 1st sess. By the Act of April 24, 1926, c. 176, 44 Stat. 322, all such fees are now required to be paid "to the Collector of Taxes for the District of Columbia for deposit in the Treasury of the United States to the credit of the District of Columbia." It is also provided by the same Act that "the annual estimates of appropriations for the government of the District of Columbia * * shall include estimates

of appropriations for the operation and maintenance" of the office of Recorder of Deeds. The Senate Committee reporting the bill (Report No. 490, supra) had stated a purpose to place the office of Recorder of Deeds "on the same basis as other district offices" and to require the submission of estimates for appropriations "in the regular way."

Under the Budget and Accounting Act of 1921, c. 18, 42 Stat. 20, 23 (U. S. C., Title 31, sections 1, 23), estimates for each"department or establishment ", defined as "including the municipal government of the District of Columbia ", are