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These provisions recognized the possibility that the proclamation might not be made on or before the date specified, but they do not, in my opinion, show an intention to give to the President a discretion to refrain from making the proclamation after the three Secretaries have made a determination and report in accordance with the Act.

The provisions as to what shall be the result if the proclamation is not made within the time specified seem to have been inserted as a safeguard against the elimination of all quota restrictions should it develop that the computation could not be made by the three Secretaries within the time limited, because of lack of necessary statistical or other information. This is borne out by what appears in the Congressional Record and the Reports of Congressional Committees.

When the Act was passed, and afterwards, there existed some doubt as to whether the prescribed formula for computing the quotas was practicable, and whether a determination of national origins could be made as directed. On June 4, 1924, Mr. Johnson, Chairman of the House Committee on Immigration, said:

"It is expected that the ascertainment of 'national origin quotas' will be a work of no small magnitude. Hence the new law directs that it shall not be operative immediately. The preliminary work is to be done by 1927, the quotas are to be announced by the President on April 1 of that year, and from and after July 1, 1927, they are to be effective as superseding quotas based upon the 1920 census.

"If for any reason the national origin plan can not be satisfactorily worked out, the President need not issue the required proclamation and the quota law will then remain until changed by Congress." (65 Cong. Rec. 10512.)

On June 29, 1926 (67 Cong. Rec. 12299), in speaking of the Act, he further said:

"It must be clear that, upon the adoption of the 'national origins provision' by the Senate and House conferees in 1924, consideration was given the possibility that ascertainment of 'national origins' might not be feasible, and the above language was employed to provide authority for the continuance of existing quotas in such a contingency."

That a difficulty did arise in making the computations before the date originally fixed is disclosed by the joint letter of the three Secretaries, transmitted to the Senate by the President on January 10, 1927, in which it was said:

"Although this is the best information we have been able to secure, we wish to call attention to the reservations made by the committee and to state that in our opinion the statistical and historical information available raises grave doubts as to the whole value of these computations as a basis for the purposes intended. We therefore can not assume responsibility for such conclusions under these circumstances."

Again, at the time of the passage of the Joint Resolution postponing the operation of the national origin quotas from 1927 to 1928, in the report of the House Committee on Immigration and Naturalization (H. Rep. 2260, 69th Congress, 2d session) it was said:

"It is agreed that the bases upon which national origins quotas have been preliminarily computed are unsatisfactory, and there appears grave doubt that they can be established with such certainty and definiteness as to justify their employment.'

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These references tend to confirm the conclusion that Congress had in mind a failure of the President to issue the proclamation as a result of the failure or inability of the Secretaries to determine national origins and compute quotas by the methods prescribed in the Act. Examination of the proceedings in the Congress and of Committee Reports, relating to the original Act and the joint resolutions postponing its operation, has failed to disclose any suggestion that it was the intention to confer on the President discretionary power in the matter, and in all its proceedings the Congress seems to have acted on the assumption that the President was required to proclaim the findings of the Secretaries, unless Congress by legislation directed a postponement.

The duty of determining national origins and computing the quotas is rested entirely in the three Secretaries. The law contemplates that if they succeed in the performance of this task and make definite determination of the quotas by the methods prescribed by the Act and report them to the President, his function will be merely to make formal

proclamation of the result. The report of the three Secretaries dated February 26, 1929, shows that they have performed the duties imposed upon them. While the report states that they do not express any opinion on the merits or demerits of this system of arriving at the quotas, it does not suggest that they have found it impossible to make the computation by the methods prescribed in the Act. On the contrary, they have submitted definite findings and have definitely determined the quotas.

A further reason exists for construing the Act to require the President to make the proclamation if the Secretaries make the report. In Field v. Clark, 143 U. S. 649, 692, it was said:

"That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."

Congress may delegate a power to determine some fact or state of facts upon which, when determined, the law will operate. It proceeded in that way in this case by delegating to the three Secretaries the power to determine the facts upon which the operation of the quota provisions depends. See Hampton & Co. v. United States, 276 U. S. 394.

Construed as I think it should be, this statute conforms to these rules, and constitutional difficulties are avoided. If the Act should be construed to give the President discretion to refrain from proclaiming the quotas fixed by the report of the Secretaries, it would come dangerously close to if it did not pass the constitutional limit on delegation of powers. If the Act gives the discretion to the President to refrain from putting the national origins quotas into operation by refraining from proclaiming them after their determination by the Secretaries, that discretion is absolute because the Act does not lay down any principle or rule to guide the exercise of the discretion, nor does it make its exercise depend upon any prescribed conditions or state of facts. So construed, the Act would result in an absolute delegation to the President of the power to say whether the national origins shall be the basis for the quotas. It would be difficult to sustain the Act so construed against the charge of delegation of legislative power to the executive. The courts uni

formly endeavor so to construe statutes as to avoid serious constitutional questions, and that should be done here.

For the reasons stated, I am of the opinion that you have no choice in the matter, and are required by this statute to proclaim on or before April 1, 1929, the quotas which have been determined and reported to you by the three Secretaries.

Respectfully,

To the PRESIDENT.

WILLIAM D. MITCHELL.

EMPLOYMENT OF MINORS IN GOVERNMENT PRINTING

OFFICE

The Act of May 29, 1928 (45 Stat. 998), regulating the employment of minors within the District of Columbia, is not applicable to minors employed in the Government Printing Office.

DEPARTMENT OF JUSTICE,

April 10, 1929.

SIR: I have the honor to comply with your request of March 2, 1929, for my opinion, upon a question submitted by the Public Printer, as to whether or not the Act of May 29, 1928, c. 908, 45 Stat. 998, regulating the employment of minors within the District of Columbia, is applicable to minors employed in the Government Printing Office.

Generally, and with exceptions not here pertinent, that Act provides "That no child under 14 years of age shall be employed, permitted, or suffered to work in the District of Columbia, in, about, or in connection with any gainful occupation "; forbids the employment of any minor in any place or at any employment dangerous or prejudicial to life, health, safety, or welfare, as determined by orders of the Board of Education of the District of Columbia; prohibits the employment of minors between specified ages in certain named occupations; and prescribes authorized hours of labor. The prospective employer of a minor under 18 years of age must first procure from the director of the Department of School Attendance of the District of Columbia a work permit," which may be issued upon a consideration of such things as the nature of the work, the hours of employment, the age of the child, his educational attainments, physical

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condition, etc. The employer must post notices and regulations and keep accurate records of the beginning and end of each day's labor, including the meal period, for each minor employed by him. These records, permits, and the places of employment shall be accessible to the director and his agents, who may enter and inspect at any time and as often as necessary.

Violations are punishable by fine and imprisonment, and by refusal to issue further permits to the guilty employer. The employer, upon demand, shall produce evidence of age of an employee believed to be a minor and unlawfully employed, and failure thereof shall be prima facie evidence of the violation.

Primarily, this is a local regulation reported to Congress as a companion measure to the compulsory school attendance law (Act February 4, 1925, c. 140, 43 Stat. 806) and intended "to so regulate the labor of children that they may come to school in fit condition to benefit from the instruction provided." H. Rept. 703, S. Rept. 842, 70th Congress, 1st session. The purpose of the bill was thus stated:

"House bill 6685 was drafted to remedy the weaknesses of the present child-labor law and to give the children of the District of Columbia a measure of protection from working conditions detrimental to their health, education, and general well-being, equal to that which is given children in the majority of the States."

The general rule is that the sovereign is not included unless expressly named. 33 Op. 355. In that opinion the Attorney General held that the Act of February 24, 1914, c. 28, 38 Stat. 291, regulating the hours of employment of females in the District of Columbia, "makes no reference to the Government of the United States and, therefore, is not applicable to the employment of female help by the Government." As therein pointed out, other statutes prescribe the hours of employment in the Federal service.

The same considerations apply here, and it may be remarked that if the statute were held applicable it would apparently accomplish nothing of substance. The hours of labor required, by existing regulations, of minors in the Government Printing Office are no more arduous than those which the statute would permit. The Civil Service Commis

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