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Opinion of the Court

98 C. Cls.

the basis of allowance by this court of claims within its jurisdiction when it inserted the proviso to Section 1, but was considering only the fact that it did not desire to open up de novo after 4 years, to all government contractors the right to file suits in this court where they had not considered that they had a claim good enough to be filed under the 1934 Act. Congress may limit the consent of the United States to be sued to any class and on any grounds which it may choose, but such limitation on consent cannot be made the basis of the denial of a claim which is otherwise clearly within the terms of the Act and within the jurisdiction of the court. Those contractors who may have incurred increased costs as a result of the enactment of the National Industrial Recovery Act, but who did not file a claim and therefore do not come within the terms and conditions of the consent to be sued as set forth in the act of June 25, 1938, still have their remedy under the First Amendment to the Constitution to petition Congress for redress. By the proviso to Section 1 of the 1928 Act Congress simply reserved to itself the consideration of any claims for increased costs incurred as a result of the enactment of the National Industrial Recovery Act that might be made by contractors whose contracts were completed prior to the enactment of the 1938 Act and who had not theretofore filed a claim.

The proviso appears to have been inserted in the 1938 Act to take care of a situation concerning jurisdiction which had occurred to the Senate and House of Representatives and had been provided for in bills which had been introduced and considered by the Senate and the House in the 74th Congress, having for their purpose amendments to the existing act of June 16, 1934. H. R. 7293, introduced in 1935, amended the 1934 Act so as to include claims of contractors for increased costs from June 16, 1933, instead of August 10, 1933. That Act, amending and reenacting the 1934 Act, fixed the period for filing claims for increased costs to within six months from the date of approval of that Act. H. R. 7293 was passed by the House June 1, 1936. A bill having the same purpose was introduced in the Senate in February 1936 as S. 4377, with the additional provision that allowance for increased costs should include not only costs resulting from

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Opinion of the Court

compliance, but also the amount by which the cost of performance of such part of the contract as was performed subsequent to June 16, 1933 was increased by reason of the increased costs of labor and materials due to the enactment of the National Industrial Recovery Act. This bill also provided that claims for increased costs by reason of compliance with a code or an agreement of the President or by reason of the enactment of the National Industrial Recovery Act should be presented within six months from the date of the approval of that Act. This bill also contained the additional provision conferring jurisdiction upon this court to hear, determine and render judgment upon any claim which had been rejected in whole or in part by the Comptroller General. The Secretary of War in a letter to the Senate Committee on June 8, 1936, commented favorably on the provisions of S. 4377, especially as to the provision with reference to the allowance of increased costs by reason of the enactment of the National Industrial Recovery Act and the extension of the time limitation as to filing claims and the provision allowing a suit in the Court of Claims on an adverse decision by the Comptroller General. He called attention to the fact that no limitation had been placed upon the time within which a contractor should institute suit in the Court of Claims and suggested that a period of six months be provided. The Senate Committee which considered H. R. 7293, which had passed the House, and S. 4377, then pending in the committee, amended H. R. 7293 to conform to the provisions of S. 4377 and favorably recommended the enactment of the same. As amended H. R. 7293 was passed by the Senate in June 1936 but failed of final passage by both Houses during the 74th Congress which adjourned early in July 1936. In the 75th Congress there were introduced on March 8, 1938, identical bills-S. 3628 and H. R. 10306-the former became the act of June 25, 1938.

From all this it seems clear that by the proviso in Section 1 of the 1938 Act Congress was simply limiting the class of contractors who might sue in this court within six months after the enactment of that Act or within six months after the completion of the contract, and was not limiting and did not intend to limit the basis for the authority of the court to

Opinion of the Court

98 C. Cls.

allow and enter judgment to any basis other than "for increased costs incurred as a result of the enactment of the National Industrial Recovery Act." Compare General Insurance Co. v. New York Central R. R., 271 U. S. 228, 203; Sperry Gyroscope Company v. Arma Engineering Company, 271 U. S. 232, 235; Smith v. Apple, 264 U. S. 274, 278; Smyth v. Asphalt Co., 267 U. S. 326, 327, 328. We think that if Congress had intended by the proviso to limit the basis for the allowance and therefore the authority of the court to allow and enter judgment in a case within its jurisdiction to some basis other than the "result of the enactment of the National Industrial Recovery Act" as stated in the enacting clause, it would have used some language in the proviso to indicate that intention or some reference to it would have been made in the committee reports, because everything that had gone before and everything that existed at that time as to authority to allow had been and was based upon "compliance", and that was the principal if not the whole reason for the unequivocal change in the basis.

It seems to have been recognized by Congress when enacting the 1938 act that in many cases it could probably not be determined with mathematical certainty that the increased costs of labor or materials were wholly the result of the enactment of the National Industrial Recovery Act. Conclusions can only be drawn from surrounding facts and circumstances. In evident recognition of this the jurisdictional act directs that judgments be rendered on a fair and equitable basis. The mere fact that wages were increased after the enactment, standing alone, might not be sufficient to establish a right to recover. There may have been other contributing factors. However, the fact that wages were increased after the act became a law is admissible as an element of proof. If this is supported by surrounding circumstances and facts, the proof may be sufficient to justify recovery. To hold otherwise and to lay down a hard-and-fast rule that there can be no recovery unless there was a manifestation of an intention, or willingness, by the contractor on and after June 16, 1933, to cooperate and comply fully with the requests of Government officers, the proposed agreements and codes, would result, as pointed out to the committees after the 1934 act.

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was enacted, in meritorious claims for increased costs being denied which would practically nullify the 1938 statute. Each case therefore must stand on its merits.

As shown by the facts in the case at bar, the original agreement between the plaintiff and the defendant that twentyfive cents an hour was the prevailing wage rate for common labor, the posting of that rate, the subsequent enactment of the National Industrial Recovery Act, the conferences with Federal officials, the mailing out of the President's Reemployment Agreement, the proposed code for the construction industry, the signing of the President's Reemployment Agreement by other contractors in the same locality, the increases in wages made by them, the complaints of plaintiff's employees and their requests for an increase in the rate of wages and their threat to quit unless wages were increased, and the conferences between plaintiff and its employees which resulted in October 1933, in an increase of ten cents an hour, and the clear proof of such increased costs, as well as other supporting facts and circumstances, taken together clearly show and justify the conclusion that the increase of ten cents an hour on October 18, 1933, as well as the subsequent increase of five cents an hour on January 19, 1934, was the direct result of the enactment' of the National Industrial Recovery Act. The fact that plaintiff's employees asked for an increase in the rate of pay and threatened to quit if their wages were not increased, after the National Industrial Recovery Act had been enacted and was being administered in the locality, does not require that the increase in wages allowed and paid should be disallowed. The evidence is sufficient to show, and there is no evidence to the contrary, that the demand for the increase and the allowance thereof were brought about and caused by the enactment of the National Industrial Recovery Act and its administration in that locality.

The evidence in Dravo Corporation v. United States, 93 C. Cls. 734, as the findings show (Count 1, findings 5-16, inclusive), the claimed increased cost of $6,692.95 for additional wages was not a result of the enactment of the National Industrial Recovery Act because other material factors entered into the increase in wages on March 5, 1934, which

Dissenting Opinion by Judge Madden

98 C. Cls.

exceeded the specific wage rates provided by the applicable code. That case is therefore not controlling here.

Under the facts established by the record in this case and under the broad provisions of sections 1 and 3 of the jurisdictional act of June 25, 1938, the plaintiff is entitled to recover the increased cost of ten cents an hour on October 18, 1933, amounting to $13,615.30, and the increased cost of five cents an hour on January 19, 1934, amounting to $3,122.75. Judgment will therefore be entered in favor of plaintiff for $16,738.05. It is so ordered.

JONES, Judge; WHITAKER, Judge, and WHALEY, Chief Justice, concur.

MADDEN, Judge, concurring in part and dissenting in part. I disagree with that part of the decision and opinion which allows recovery of the $13,615 of increased wages paid by plaintiff by reason of raising wages tèn cents an hour on October 18, 1933. I do not believe that this raise was a result of the enactment of the National Industrial Recovery Act, within the meaning of the 1938 statute under which this suit is brought.

The issue in this case, as I see it, is a fairly narrow one. It is whether Congress intended, in the 1938 Act, to compensate all contractors with the government for wage increases made by them after the date, June 16, 1933, of the National Industrial Recovery Act, if their contracts had been entered into before August 10, 1933, by which date contractors were on notice so that they could estimate for higher wages when making their bids. I so state the issue because I see no substantial causal relation between the Recovery Act and the wage raise made here that would not exist in any other case in which wages were raised during this period, unless the events in the other case took place in some remote part of the country where the Recovery Act had not been heard of.

The reason plaintiff raised its wages appears from the following testimony of plaintiff's President, on examination by plaintiff's counsel.

Q. What happened which brought about a raise in the rates? What compelled you to pay more than twentyfive cents?

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