Sec. 5. Computation of number of colonels for promotion or retention on active list. That in computing the number of colonels to be recommended for promotion or to be designated for retention on the active list the general officers of the line shall be considered as constituting the grade next above that of colonel.--(48 Stat. 812, ch. 367.) EDITORIAL NOTE This section is embodied in the U.S. Code as sec. 667b of title 34. Sec. 6. Credit for commissioned service. That commissioned service of officers for the purpose of this Act shall consist of all commissioned service on the active list of the Marine Corps, whether under a temporary or permanent appointment, and all commissioned service on active duty in the Marine Corps Reserve and the National Naval Volunteers.--(48 Stat. 812, ch. 367.) EDITORIAL NOTE This section is embodied in the U.S. Code as sec. 654 of title 34. Sec. 7. Composition and procedure of selection boards. That selection boards shall consist of not less than six officers on the active list of the Marine Corps, the composition and procedure of the boards to be determined by the Secretary of the Navy: Provided, That no officer shall be recommended for advancement unless he shall have received the recommendation of not less than two thirds of the members of the board.--(48 Stat. 812, ch. 367.) EDITORIAL NOTE This section is embodied in the U.S. Code as sec. 662a of title 34. CASE NOTE Composition of selection boards. - Selection boards to recommend brigadier generals for promotion to major general must be constituted in ac cordance with the first section of this act, "that is, must consist of nine rear admirals on the active list of the line of the Navy, as provided by existing law governing the promotion by selection to the grade of rear admiral in the Navy." (File OA/P17-2 (340804), July 5, 1934, C.M. O. 7-1934, p. 10. See also File KS/A17-32(380324), Aug. 24, 1938, C.M.O. 7-1938, p. 66.) Sec. 8. Duty other than line duty considered in promotion. That administrative staff duty performed by any officer under appointment or detail, and duty in aviation, or in any technical specialty, shall be given weight by the selection board in determining his fitness for promotion equal to that given to line duty equally well performed.--(48 Stat. 812, ch. 367.) EDITORIAL NOTE This section is embodied in the U.S. Code as sec. 667d of title 34. Sec. 9. Physical examination as prerequisite to promotion in the Marine Corps.7 That section 1493, Revised Statutes (U. S. C., title 34, sec. 665), is so far amended in its application to the Marine Corps as to require that no officer shall be promoted to a higher grade, excepting in the case provided in section 1494, Revised Statutes (U. S. C., title 34, sec. 666), until he has been examined by a board of Naval medical officers and pronounced physically fit to perform all his duties at sea and in the field.--(48 Stat. 812, ch. 367.) EDITORIAL NOTES Sec. 1493, R.S., as amended, is embodied in the U.S. Code as secs. 271 and 665 of title 34. Instructions for boards of medical examiners are contained in Naval Courts and Boards, 1937. Sec. 10. Sea service as affecting promotion; restriction as to service in Marine Corps Headquarters. That the requirement of sea service in grade shall not apply to promotion of officers of the Marine Corps; and until January 1, 1938, officers in the upper three-sevenths of the grades below brigadier general, subject to selection as established by the first section of this Act, shall be eligible for consideration by selection boards without regard to length of service in grade: Provided, That hereafter no officer of the Marine Corps shall be ineligible for consideration by a selection board or for promotion by reason of completion of length of commissioned service or because of age without having at least once been considered by a selection board, and any officer of the Marine Corps now on a promotion list shall be eligible for promotion unless removed from said list in accordance with existing law: Provided further, That officers of the Marine Corps of the grade of second lieutenant and above, except those appointed or serving as major general commandant, as assistant to the major general commandant, as the head of a staff department, or whose names appear on an eligible list for appointment as head of a staff department, shall not serve on duty in the Marine Corps Headquarters, Washington, District of Columbia, more than four out of any eight consecutive years unless the President shall determine that the public interests so require.--(48 Stat. 812, ch. 367; 49 Stat. 1249, ch. 252.) EDITORIAL NOTES This section was expressly amended to read as above by act of May 1, 1936, ch. 252, 49 Stat. 1249. CROSS REFERENCE Suspension of restriction as to service in Marine Corps Headquarters: see act of Oct. 16, 1942, ch. 613, 56 Stat. 795. This section, as amended, is embodied in the U.S. Code as sec. 667e of title 34. Sec. 11. Officer on eligible list for staff appointment. That an officer whose name is placed on an eligible list for appointment as head of a staff department shall not be again considered for that office by any subsequent selection board, except as otherwise provided in this section, and shall, in respect to involuntary retirement, be in the same status as if selected as best fitted for promotion: Provided, That the Secretary of the Navy may, in his discretion, with the approval of the President, remove his name from such list and submit it to the next ensuing selection board for consideration and recommendation. If recommended for appointment by said board and approved by the President, the name of such officer shall be replaced on the eligible list from which removed without prejudice by reason of its having been temporarily removed therefrom. If not recommended by said board, such officer shall be subject to involuntary retirement under the same conditions as provided for in the case of an officer whose name is removed from and not replaced on a promotion list.--(48 Stat. 812-813, ch. 367; 52 Stat. 591-592, ch. 598.) EDITORIAL NOTES This section was expressly amended and reenacted to read as above by act of June 23, 1938, ch. 598, sec. 15, 52 Stat. 952. This section, as amended, is embodied in the U.S. Code as sec. 667f of title 34. Sec. 12. Grade" and "rank" synonymous. That for the purposes of distribution and promotion in the Marine Corps grade and rank shall be considered as meaning the same.--(48 Stat. 813, ch. 367.) EDITORIAL NOTE This section is embodied in the U.S. Code as sec. 626b of title 34. Sec. 13. Appointment of Commandant of the Marine Corps. That the Major General Commandant shall be appointed as now provided by law.--(48 Stat. 813, ch. 367.) EDITORIAL NOTE An act of Dec. 19, 1913, ch. 3, 38 Stat. 241, as amended, relates, in part, to the appointment of the Commandant of the Marine Corps. So much the re of as provides for the appointment of the Commandant of the Marine Corps is embodied in the U.S. Code as sec. 621 of title 34. This section is cited thereunder. Sec. 14. Recommendation of colonels for heads of staff departments. That the selection board recommending colonels for promotion shall recommend the number of officers of the rank of colonel directed by the Secretary of the Navy for appointment as head of each staff department, and the names of officers so recommended, approved by the President, shall be placed on an eligible list for such appointment, one list for each department. As vacancies occur hereafter, heads of staff departments shall be appointed for four years from officers whose names appear on the eligible lists for the respective departments.--(48 Stat. 813, ch. 367.) 1934, May 29. Promotion of ensigns in the staff corps. Sec. 6. That hereafter any staff officer on the active list below the rank of lieutenant commander shall be advanced to the next higher rank in his corps when the running mate of such staff officer of an officer junior to such running mate has been promoted to that higher rank in the line of the Navy or when a vacancy in that rank exists in the line of the Navy which will in due course be filled by the promotion of his running mate or an officer junior to his running mate: Provided, That such staff officer is found qualified in accordance with law for such advancement. The provisions of law relating to the advancement of staff officers now embodied in sections 255, 321, and 348r (Supplement VII), of title 34, United States Code, are hereby amended in accordance with this section.--(48 Stat. 815, ch. 368.) 1934, June 13. Extortion from persons employed in construction of buildings or works financed by the United States. Extortion. That whoever shall induce any person employed in the construction, prosecution, or completion of any public building, public work, or building or work financed in whole or in part by loans or grants from the United States, or in the repair thereof to give up any part of the compensation to which he is entitled under his contract of employment, by force, intimidation, threat of procuring dismissal from such employment, or by any other manner whatsoever, shall be fined not more than $5,000, or imprisoned not more than five years, or both.--(48 Stat. 948, ch. 482.) Sec. 2. Regulations governing contractors and subcontractors. To aid in the enforcement of the above section, the Secretary of the Treasury and the Secretary of the Interior jointly shall make reasonable regulations for contractors or subcontractors on any such building or work, including a provision that each contractor and subcontractor shall furnish weekly a sworn affidavit with respect to the wages paid each employee during the preceding week.--(48 Stat. 948, ch. 482.) EDITORIAL NOTES The administration of this act was placed under the Secretary of Labor by Reorganization Plan No. IV, sec. 9, 54 Stat. 1236, effective June 30, 1940, in accordance with sec. 4 of a joint resolution of June 4, 1940, ch. 231, 54 Stat. 231. This act, as amended, is embodied in the U.S. Code as secs. 276b and 276c of title 40. Regulations promulgated by the Secretary of Labor under authority of this act, as amended, are contained in the Code of Federal Regulations. The term "public work" has been employed in several statutory provisions and has been construed in numerous opinions and decisions. A leading case is United States to use of Noland Company, Inc. v. Irwin, 316 U.S. 23, Apr. 6, 1942, noted under an act of Aug. 24, 1935, ch. 642, 49 Stat. 793-794. CROSS REFERENCES Rates of wages for laborers and mechanics employed on public buildings, etc., by contractors and subcontractors: see act of Mar. 3, 1931, ch. 411, 46 Stat. 1494, as amended. War contracts exempt from certain restrictions upon authorization of the President: see the First War Powers Act, 1941, approved Dec. 18, 1941, ch. 593, title II, sec. 201, 55 Stat. 839. CASE NOTES Purpose of statute.- "The purpose of the Act under consideration is to extend protection not merely to the legal form of employment contracts 'but to the substantive rights of workers actually to re- Applicability of statute.- "The statute extends the mantle of its protection to any person employed in the prosecution of 'public work' but appears to contemplate only those contracts which require the entire working time of all employees of the contractor or subcontractor engaged in such work, as witness the mandatory requirement for a weekly affidavit with respect to the wages paid each employee during the preceding week. neous Government contracts There are many miscella** which are inciden tal to and commingled with the general business of the contractors, which require the services of comparatively few employees for their performance, and even those only for a portion of their time. It would not appear to be the intent of the act of June 13, 1934, that such contractors should be required to furnish weekly affidavits of the amount paid to each employee, although, of course, the contractor or any other person violating the criminal provisions of the statute would, upon conviction, be subject to the prescribed penalties. Requiring such an affidavit from 'part time' contractors would not appear to be a 'reasonable' regulation." (18 Comp. Gen. 337, 345, Oct. 14, 1938.) * * "It is clear that the penalty provided in the statute under consideration relates to 'kickbacks' with respect to contracts of employment between a contractor and his employees and not with respect to stipulations in a contract between a contractor and the United States that the contractor should pay the employees a certain wage. That being the case, the application of the said act to a particular Government contract is not dependent upon, or affected by, an agreement between the contractor and the United States that the employees shall be paid specified wages. In other words, it is of no consequence in the application and enforcement of the 'Kick-Back' Act that the contract between the contractor and the United States does or does not specify the wages to be paid the contractor's employees, as required by the Bacon-Davis Act, 49 Stat. 1011, in certain cases. "In view of the above it appears the 'KickBack' Act applies to all contracts for the repair, construction, prosecution, or completion of 'any public building, public work, or building or work financed in whole or in part by loans or grants from the United States,' irrespective of the amounts of such contracts and the fact that such contracts may not specify the wages to be paid by the contractors to their employees." (19 Comp. Gen. 576, 578, Dec. 14, 1939.) "To hold that a company foreman vested with sufficient power substantially to affect his subordinates' contracts of employment is within the Act's proscription is not to hold that the Act applies to every extortioner, blackmailer, or other person who extracts money from one who has previously received it for labor on a federally financed project. We need not, at this time, attempt to delineate the outside scope of the Act's application. But the purpose of the legislation, no less than its language, shows that the power to employ and discharge brings an employing company's foreman within its prohibition." (United States v. Laudani, 320 U.S. 543, 548, Jan. 3, 1944.) This statute is limited in its application to employers or those acting directly under or in their behalf. (United States v. Carbonne, 56 F.Supp. 343, June 2, 1944.) "In the simplest language possible, the thing which the act makes a crime is employing a workman at a certain rate of pay and then compelling him to waive or return some part of his pay by threat of dismissal, force, or intimidation. It is of the essence of the offense that the money which he thus is made to give up is money to which ne is entitled under his contract of employment. That is the precise language of the act. Contract of employment' means the agreement between the contractor and the workman, not the contract between the contractor and the public body in charge of the work. If the workman receives the whole amount of the wages which the employer agreed to pay him when he went to work and is not compelled to give back or to waive any part of it, the act has not been violated. It does not reach (and from the reports of the Committees of the House and Senate apparently was not intended to reach) cases where, at the time he was employed, the employee was induced by whatever means to accept a lower rate of pay than he might have insisted upon by reason of his skill, the kind of work, or his classification, or than that which the contractor had agreed with any board or public official to pay or which the government required him to pay." (United States v. Golder, 11 F.Supp. 870, 871, July 30, 1935.) "The statute is a highly penal one and the defendants are entitled to a strict construction. The offense at which it is aimed is, compelling workmen to return to their employers wages to which the contract between the employer and his employees entitles them. It was not intended to punish the refusal or failure of an employer to pay his men according to a general wage scale fixed by the Government, or to pay them the wages which he may have agreed to pay in his contracts with the Government or with the general contractor--contracts to which the men were not parties. (United States v. Charlick, 26 F.Supp. 203, 205, Jan. 6, 1939.) "A study of the history of the passage of the statute convinces me that, even though much of the testimony and discussions had to do with 'kick back' to employers, the legislators were determined to stop the mulcting of public project workers by anyone using the means stated in the statute. The broader purpose is clearly expressed by the language of the law. The words 'anyone' in the title and 'whoever' in the text have such universally understood meanings that they are 'embodied in the maxim-expressum facit cessare tacitum'. A limitation of those words would not only make other words of the statute--such as 'force', 'intimidation' and 'procuring'--meaningless but it would provide an easy device to circumvent a criminal statute." (United States v. Fuller, 51 F.Supp. 951, 953, Sept. 7, 1943.) Regulations governing contractors and subcontractors. "Section two of the act provides that 'To aid in the enforcement of the above section, ' the Secretary of the Treasury and the Secretary of the Interior jointly shall make reasonable regulations for contractors or subcontractors 'on any such building or work, including a requirement of weekly affidavits as to wages paid. Such regulations, if within the authority of the act, have the force and effect of law. The act provides a penalty for violation of the 'kick-back' provisions, but provides no penalty for violation of the regulations made to aid in the enforcement of the 'kick-back' provisions. The act does not direct or expressly authorize the inclusion of the regulations in contracts for work subject to the statute, but as there appears no other method for enforcing the regulations as to furnishing affidavits, etc., the requirement that such regulations be made a part of each contract for work subject to the act would a pear to be a 'reasonable' regulation, within the urview of section 2, to aid in the enforcement of the provisions of section 1." 1 Comp. Gen. 616, 617-18, Jan. 19, 1939.) דיד 1934. June 14. Inapplicability of coastwise shipping laws of the United States to American Samoa.7 Whereas the convention relating to the Samoan Islands, signed by the United States, Great Britain, and Germany on December 2, 1899, was proclaimed by the President of the United States on February 16, 1900, and continues to be in force; and Whereas article 3 of the said convention is word for word as follows: "It is understood and agreed that each of the three signatory powers shall continue to enjoy, in respect to their commerce and commercial vessels, in all the islands of the Samoan group privileges and conditions equal to those enjoyed by the sovereign power, in all ports which may be open to the commerce of either of them." Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of law of the United States restricting to vessels of the United States the transportation of passengers and merchandise directly or indirectly from any port of the United States to another port of the United States shall not be applicable to commerce beween [sic] the islands of American Samoa or between those islands and other ports under the jurisdiction of the United States.--(48 Stat. 963, ch. 523.) EDITORIAL NOTE This joint resolution is embodied in the U.S. Code as sec. 1433 of title 48. 1934, June 19. Regulation of interstate and foreign communication by wire or radio. Section 1. Purposes of act; Federal Communications Commission. For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the "Federal Communications Commission", which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act.--(48 Stat. 1064, ch. 652, title I; 50 Stat. 189, ch. 229.) EDITORIAL NOTES This section, which is the first section of the This section, as amended, is embodied in the U.S. Code as sec. 151 of title 47. Sec. 602 of this act repealed the Radio Act of 1927, approved Feb. 23, 1927, ch. 169, 44 Stat. 1162-1174, as amended. Sec. 39 of the Radio Act of 1927 repealed the following enactments: act of Aug. 13, 1912, ch. 287, 37 Stat. 302-308, as amended; joint resolution of June 5, 1920, ch. 269, 41 Stat. 1061, as amended; and joint resolution of Dec. 8, 1926, ch. 1, 44 Stat. 917. CASE NOTE Purpose of act.- "The Communications Act of 1934 is a hybrid. By that Act Congress established a comprehensive system for the regulation of communication by wire and radio. To secure effective execution of its policy of making available 'a rapid, efficient, Nation-wide, and world-wide wire Sec. 3. Meaning of terms. For the purpose of this Act, unless the context otherwise requires-(a) "Wire communication" or "communication by wire" means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission. (b) "Radio communication" or "communication by radio" means the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission. |