                                      March     16,1971


Honorable    J. C. Dingwall                      Opinion      No.   M-809
State Highway     Engineer
State Highway Department                         Re:      Whether      the State Highway
Austin,   Texas   78701                                   Department       may legally     ad-
                                                          vertise    and award Highway
                                                          Construction      projects   fi-
                                                          nanced with both state and
                                                          federal    funds without pro-
                                                          vision for the general       rate
                                                          of per diem wages provided
Dear   Mr.     Dingwall:                                  in Article     5159a, V. C. S.

              We quote,   in part,     from   your   letter   requesting    an opinion    of
our office,     as follows:

                     “The President’s      proclamation     of February     23,
              1971, suspended      the provisions    of the Davis-Bacon      Act
              and the provisions     of all other Acts providing      for the
              payment    of wages which provisions        are dependent upon
              determinations     by the Secretary     of Labor,   under the
              Davis-Bacon     Act.    The Federal     Highway Administrator
              has advised    that proposals    for Federal-Aid     projects     on
              which bids are opened after March 5th, 1971, must con-
              tain no wage determinations         made under the provisions
              of State Statutes or other wage determination          processes.

                      “Can    the State Highway       Department   legally ad-
              vertise   and    award Highway        Construction  projects fi-
              nanced with      both State and Federal        Funds that do not
              contain the     general    prevailing    rate of per diem wages
              as provided      in Article    5159a, V. C. S. ?

                      “The general  prevailing    rate of per diem wages
              will be included in Highway      Construction   projects fi-
              nanced entirely   with State Highway Funds as provided                 in
              Article   5159a, V. C. S. . . . ”

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Honorable     J. C.      Dingwall,   page   2    (M-809)



Also,   you have furnished      us copies of a legal memorandum         and ad-
ministrative     construction   by the Solicitor   of Labor,    U.S. Department
of Labor,     dated March     1, 1971, addressed     to all States’ Attorneys
General     (Appendix   “A” attached hereto)     and a legal opinion dated
March     1, 1971, from the Attorney      General’s    Office,   to the Solicitor
of Labor (Appendix       “B” attached hereto. )

          We are in agreement            with their interpretation         of the effect
of President      Nixon’s    action and emergency           proclamation,       which was
to remove     from the federally          involved    construction     contracts     entered
into on or after February           23, 1971, all otherwise          applicable    federal
requirements       that laborers      and mechanics         be paid at least the wage
rate determined        by the Secretary        of Labor,      U.S. Department        of Labor,
to be prevailing      for their crafts.         We also concur in the Attorney
General’s     interpretation      that all state-required         wage standards        pro-
visions   have been rendered           inapplicable     for the duration of such sus-
pension to federally        involved     construction      contracts    on which the wage
payment    requirements        of the federal       statutes and regulations        have been
 suspended.      As we construe         that interpretation,       it is limited    to federally-
assisted   construction       projects      which are subject to statutory          provisions
(e. g., 12 U.S.C.        17Olq(c),      20 U.S.C.      848, 42 U.S.C.        2685, 3107),
requiring    the payment of wages determined                 in accordance      with the Davis-
Bacon Act, 46 Stat. 1494, as amended.

         You also have advised    that the federal  Department      of Transporta-
tion has notified   all Regional Federal   Highway   Administrators       and Division
Engineers    that in order to comply with the federal      contractual    requirements
for obtaining   the construction  funds on which bids are opened after March
5, not only must the deletion    of Davis-Bacon    provisions     be effected,    but
the bids

                  f, .. * must contain no wage determinations       made
          under the provisions       of state statutes or other wage de-
          termination     processes.    I’

Such are the conditions   of the federal  grant,            and failure   to comply       there-
with will apparently  preclude   the state from             obtaining   such federal       monies.

         First, we will consider     the standing and effect of the President’s
proclamation.     The principle    is well established in both the realm of federal
law and federal-state    relations   that


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Honorable      J. C.   Dingwall,   page    3   (M-809)




                  ‘1. . . where Congress  has authorized       a
        public     officer to take some specified   legislative
        action     when in his judgment  that action is neces-
        sary or appropriate       to carry out the policy of
        Congress,      the judgment    of the officer as to the
        existence   of the facts calling for that action is not
        subject to review      . . .‘I U.S. v. Bush, 310 U.S.
        37 1 ( 1940. )

In this Bush case,      the President    of the United States acted,     as author-
ized under Act of Congress,         by Proclamation     to increase   the duty and
changes  in classification     of certain   foreign  imports.    In the earlier   case
of Dakota Cent. Telephone       Co. v. State of South Dakota,      250 U. S. 163
(1919) the very broad powers        of the President  to take possession     and
control  of telegraph,   telephone,     and other communication      companies,
and operate    them, by Proclamation,       under authorization    of Congress
and his wartime     powers,   was upheld.      An Executive   Order of the Presi-
dent

               ‘1.    . is to be accorded  the force and effect
        given to a statute enacted by Congress.        .”
        Farkas    v. Texas Instrument,    Inc. 375 F. 2d 629
        (5th Cir.    1967, cert.  den. 389 U.S. 977. )

          The power of the President      to act by the Proclamation      under con-
sideration     is fully sustained  by the authorities    cited in support of the text
in the text book entitled Modern       Constitutional    Law, by Chester    J. Antieau,
Volume     II, Section   11:21 at pages 222-231,      and Sections  13:22 through
 13:25 at pages 526-531.

         The    interpretation     of a federal    statute   subject   to construction
by the executive   department   charged with its administration     and enforce-
ment is entitled to the highest   respect  from the courts.     42 Am. Jur. 392,
Public Administrative     Law, Sec. 78; Roland Electric     Co. v. Walling,     326
U. S. 657 (1946); Mabee v. White Plains       Pub. Co. , 327 U. S. 178 (1946);
Boutell v. Walling,    327 U. S. 463 (1946. )

          Article    5159a, Vernon’s       Civil Statutes,   which provides   for wage
standards     provisions      in Texas,   is thus inapplicable    to the above mentioned
federally    involved    construction    contracts    for the duration of such suspension.
The suspension        provision    (40 U. S. C. 276a-5) in our view precludes      a state


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Honorable      J. C.   Dingwall,   page   4       (M-809)



from imposing      its own “Davis-Bacon”          requirements      on construction      other-
wise subject to the Davis-Bacon           statutes.     The purpose of those statutes
was to provide     a federal   wage floor on those affected          construction     contracts
in which the federal     government      had an interest.        This floor was removed
by the President’s      emergency     proclamation       in the national interest.        lf the
state were empowered         to interpose     its own wage floor on such federal            con-
struction   contracts,    such would frustrate        and render impotent        the essential
purpose   of the suspension      provision,      which was designed       to permit the
President    to suspend any wage floor,          whether    federal   or state,    in the national
interest.

          In Attorney    General  Opinion No. S-185 (19561, it was held that Ar-
ticle 5159a was in conflict      with the Davis-Bacon     Act, as applied to the con-
struction    of armories    by the Texas   National   Guard Armory      Board.      How-
ever,   as that Opinion makes clear that construction          was being carried      out
under a different     Act of Congress,    the National   Defense    Facilities    Act of
1950, Section bb, as amended,         which    expressly   recognized      that the con-
struction    “shall be done in accordance      with the laws of such state . . . ”
Furthermore,       the amendment     had been interpreted     by the Department       of
Defense

                    ‘1. . . to mean that State laws and procedures         con-
           trol the letting of construction      contracts    only insofar  as
           such laws are in conflict      with Federal     Statutes and pro-
           cedures      and that the Federal   laws apply if there is no such
           conflict.    ”

The   Attorney     General    thereupon       concluded:

                   “Accepting   this interpretation,          the Davis-Bacon
            Act will apply if it is not in conflict         with the State law,
            but Article   5159a will apply if there         is a conflict  be-
            tween these two statutes. ”

In other     words,    the conditions of the grant were controlled           by another    and
specific     federal   Act, outside the scope of the Davis-Bacon             Act.

        We have concluded      that the factual and legal situation presented               by
your request   is legally distinguishable    from that. presented  in Attorney
General  Opinion No. S-185.       In the present  situation,  the Davis-Bacon               Act



                                          -3931-
Honorable       J. C.    Dingwall,   page   5    (M-809)




and federal    laws and regulations       under which the construction          work is
being performed        do not expressly     provide   for state laws and pro~cedures
to control   the letting of the construction        contracts.     Furthermdre,      they
have been interpreted        by the Labor Department          and Department      of Jus-
tice to the effect that such state statutes were not applicable               under the
suspension     provision.     Since Article     5159a would,     if applicable,    neces-
sarily  conflict   with the federal     law, we are not required         to hold that the
state law controls,       as was held in Opinion S-185.

          It is our opinion that our state statute must yield to any conflict-
ing provisions      of congressional       acts and federal      regulations    pursuant
thereto    pertaining    to those subjects      within the scope of federal        power.
Contineital      Radio Co. v. Continental          Bank & Trust Co. , 369 S.W. 2d 359
(Tex. Civ.App.        1963, error    ref.,    n. r. e. ); Free v. Bland,       369 U.S. 663
(1962,    revg.    344S.W.Zd435,         Tex.Sup.,       1961, and conformed        to 359
S. W. 2d 27) holding that any state law, however                clearly   within state ac-
knowledged       power,    which interferes      with or is contrary       to federal   law,
must yield.       The Davis-Bacon        Act and its related       statutes involve    a pro-
prietary    function of the federal        government.       If state policy were to pre-
vail,   a collision    between   it and federal      policy would result and therefore,
the latter policy must govern.             See Paul v. United States,         371 U.S.    245
(1963.   1

             In view    of the foregoing,   we answer      your   question   in the affirma-
tive.

                                       SUMMARY

                 The State Highway        Department      may legally
         advertise    and award federally        involved   highway con-
         struction    contracts,    financed   with both state and
         federal   funds, which do not contain the general pre-
         vailing   rate of per diem wages as provided            in Ar-
         ticle 5159a, Vernon’s         Civil Statutes,    in view of
         President     Nixon’s   emergency      proclamation      suspend-
         ing the provisions      of the Davis-Bacon        Act (46 Stat.
          1494, as amended)       as well as all other federal        acts
         for the payment of wage rates on such projects               which
         are dependent upon prevailing           wage determinat.ions      by
         th,e Secretary    of Laborunder        the Davis-Bacon       Act.



                                            -3932-
.   .   I.




             Honorable     J. C.   Dingwall,     page   6       (M-809)



                                 Article     5159a, V. C. S., has been rendered       in-
                         applicable,      for the duration of such suspension       to all
                         federal   construction       contracts   entered into on or sub-
                         sequent to February          23, 1971, and until otherwise
                         provided,      calling   for the payment of wages as provided
                         in the Davis-Bacon          Act of March ‘3, 1931, as amended,
                         or any other        Acts calling   for the payment of wages,
                         the provisions        of which are dependent     upon determina-
                         tions by the Secretary         of Labor under the Davis-Bacon
                         Act.

                                                                Very   truly   yours,

                                                                CRAWFORD     C. MARTIN
                                                                Attorney General of Texas




                                                                By:& a    NOLA WHITE        ’
                                                                          First Assistant

             Prepared     by Kerns     Taylor
             Assistant    Attorney     General

             APPROVED:
             OPINION   COMMITTEE

             W. E.   Allen,   Acting    Chairman

             J. C. Davis
             Pat Bailey
             John Reeves
             Jack Goodman

             MEADE     F. GRIFFIN
             Staff Legal Assistant

             ALFRED       WALKER
             Executive     Assistant




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