               OFFICE   OFTHE     A~ORNEY       GENERAL    OFTEXAS
                                      AUSTIN

a.ruLo~-
 kH.Xlea-


 tfonoroblr, Weaver 8.      Baker,    Chaiman
 Board of Control
 i\ustin,   Tsxas


 Sear   Sir:




                                                          na of   Article



                                                           when through
                                                       ake or fist8
                                                      at bstween the
                                                      ontrol      and the
                                                          pr0~id~ r0r 8




           Your Letter          and the encloauros   enumerated revealed
 ,the rouowing ruots:
           (1) The speoiriaations mda by you on rhloh %ord
 Conetruction Company baaed its bid oontained the follo*sfn%
                                                                    1   .




                                                              870
-5onorable :;eavur ii. hkzr,        page 2




          *L;sJ:.H ;i;;*,I: I:Y;i>,
                                 L.;iTy:

           “The provisions of the prevailing wage law,
       Ii. 8. 30. M, Chapter 4b, Aots or the iiceular
       Semion of the Bortp-thtrd b@slature       will be
       In etreot on this aontract.   The stipulated   pro-
       railing rate or per Diem wages for thls contract
       15:
       aClass                               “Per hour

       ntr*                                Iv+**
       a***                                I)**.

       “Ploatarers                             $l.W
       n+**



           The Contruotor ahull r0rreit 8s a penalty to
       the Jtote ten ($13.00) dollars ros suoh laborer,
       workma or meohanle employed, ior eaah calendar
       day, or portion thereof, such laborer, mrkmen,
       or meohaaio ia paid less than the mid stipulated
       rates for any work done under said oontrnct, by
       him, or by any suboontraotor under him.*

           (2) By letter dated Pobruary 4, 1942, the looal
Flnsterers’ tinion SO, 183, 00tiri0a the imte Board 0r Labor
Statlstlc6   thst the prevailing rate Or wage6 tOr journey.neu
plasterers would be lnareased from $1.50 per hour to $1.75
per hour on oontracte entered into after April 12, 1942.
The Local’8 letter stated that the 81.50 rate had been mln-
talned for four (4) year*,     but thnt increased living oosts
neceeoltnted the raise.    The letter was reoelved by the Bureau
0r Labor %atiatics    on February 17, 1842. Looal 783, arriiiatea
with the American yederatfon of Labor, olaims Jurisdlotlon     of
                                                                     871
Honorable ieaves ii. RciiWr, page 3




the rollowing countirrr Travis, %StTOP, Bass, LaJWasas,
Bayette, Les, Blanoo, Burnett, Caldwell, ~lll~anaoa, Llano,
hi  Saba, and Dell.

            (3) on April let berorr the emotive       aato at tbe
above rarerred to tioreaso,    the Boreao of Labor Stetirtios
contacted numerous oontraotors in the Austin area to deter&m
ii ths Inorease was aoaeptable to then, All r6plies received
to inqulrirs lndloated the lnoreared rate was scoeptable and
no raplies   were recoivsdto the oontrarr.      Lett6rswrrr rm-
amired iron a number of oontraatorr whose asMe are ret out
fn tha letter from the Comtalosioner of thr Buseau oi Labor
Statistios,    that ths lnoreasebrate8 wera agmeablr to timmr
kiowrver, idoor Coaetruatioo Companydoeln’t appear 08 aaid
list. Atter reoelring     the ravorable replies to It8 inquiry,
the Bureau or Labor Statfstfos     oorrected its iils   to reflect
31.75 per hour aa the prevailing wage soalo ior journeymen
plasterers.
          (4) Your letter stated that you railed to rewire
the Aotiae nalled you by the Bureau of Labor 6tatiotlas    as
to the increased scale 0r pay 0r plasterer8 snd you, therrrore,
set up the rate of $1.60 in your speoliioations  on the oontraot
later awarded to Moore Construction Company.
           (5) The letter mm SioosCOAStrUatiOA COrnpSA~    to you
5tated that it was not notified   at any time prior to 8fgAin6
the coAtraot Hap 22, 1942, by the Labor Board, the plastererr’.
repressAtativ0,   or any other SgSAOy, oonoer~ing the inorsased
rata of pay oi plasterera   until Mar 22, 1942, when said raot
was called to it8 attention by the plasterers’ representative.
After   aheaking with the State Labor Board, Moore Constructloo
Company paid said prevailing waee, and now requests the Board
of Control to remunerate it for the lncreaeed amount paid
plastarers    u&aT it above the amount set out in the speolfioa-
tioas and oontraot, together with the additional coat of in-
suranoo required and a lO$ profit oa said inoressed amounta,
        Under the above raotr taken rrom four latter aad en-
O~~SUCO~, you propound to us three questions as rollowrr

          “1. UAdeT the tsots herein submitted and RS
     shown by the attaohed file,   in the light or the law
     or this titato, do we owe c(ooro Conrtruotion Company
     on room repairs to the State Capitol OA above de-
     soribed oontract, dated J&y 22, 1942, tha sum or
     91609.10 for 6422 hours of labor for plasterers
Bonorable :ieaver 8. Btiksr, page 4




     paid an addltional Zb# per hour for work pariorned
     by them on said job ovw and above the $1.50 par
     hour set out in the oclntraot.
            “2. Are we bound to pay for the item or
     lnsuranoe aet out in suoh rtatement of $225.277

             “3.   Are we bound to pay the 8183.44 profit
     alatied    by the &ore  Construction Company in view
     of the hate     and law above oubmittsd?”

             It is noted that both the rpeoiflaation     for bide
and the   oontrmt  entered   into with aore Construction    Company
eet out that   the provisions or Artiole 3169a, Vornon’tt Annotated
Civil Statutes, would be in eifeot on this ooatraat.        Artiole
5159a, V.A.C.8..   providea   a5 r0~lowat

             ‘580. 1. Not leas than the general prevailing
      rate   at      diem wages tot work of 8 aiixilar
                    per                                 ohnrao-
      tsr in the locality     in whloh the work is performd,
      and not leas than the general prevailing r<lce of per
      diem wages for legal holiday and overtime wo.rb, shall
      be paid to all laborers, workmen and wohan~aa a-
      ployed by or on bahali af the State oi Texas, or by
      or on behalf of any county, oity and oounty, city,
      town, district    or other political  6ubdSviai.m  of the
      State, engaged In the construction of public worke,
      exalustve of maintenance work. Laborerr, worknen
      and meohanice employed by oontraotora or euboontraotore
      in the exeeutlon of any oontraot or oontrnots for pub-
      lie works with the State, or any ofricer or publia
      body thereof, or in the execution 0r any oontruot
      or 0ontract.e tor publia worka, with any county, oity
      and oounty; oity, town, dlstriot,     or other politloaL
      subdivision or thle State,     or any otflaer or publla
      body thereof, shall be deemed to be employed upon
      publlo works.
            “3Jgo. 2. The publio body awarding any oontraot
      for publio work on behalf of the State, or on behalf
      or any county, alty and county, city, town, dlatriot
      or other politioal  rubdivision thereof, or otherwise
      undertaking any publie work, shull aeoertaia the
      general prevaillcg  rate or par diem wages ln the
      looality  in which the work 18 to be performed for
Ekmorable fleatar Ii. Sakes,   page 4




      each aratt or type of workman or meohania aesded
      to exeaute the oontrattt, and 8hall speoify tn the
      call for bids ior said oontraot, and in the eon-
      traot itaalf,    what the general prevailin     rate of
      per diem wage8 in the 8ai4 looality      ir for eaah
      oratt   or type ot workman nerded to lrooute the con-
      traat, al8o the prevailing rate for legal holiday
      anti orertfmo   work, and it shall be mandatoryupon
      the oontraotor to whom the aontraot fr awarded, and
      upon any 8uboontraator under him, to pay not 1088
      than the ma14 8peoifie4 rater to all laborer8, work-
      men and meohanior employendby them in the exeoution
      0r the aontraot. The aontraotorshall forfeit          a8
      8 penalty to the State, Oounty, oitf and oountf,
      oitf, town, dlatrlct    or othar politioel    eubdivf8lon
      on whose behalf the oontraot Ii! mrrdia    or awarded, Ten
      &Llar# (@J.OO) for each laborer, workman, or machanio
      employed, ior eaoh calendar day or portionthereor,
      suah laborer, workman or ~eohan1a IO paid lea8 than
      the said rrtlpulated rates for any work done under
      aaid aontraat, by him, or bf any auboontraotor under
      hira, and the said publio body awarding the oontraot
      shall aause to be inserted in the oontraot a etipula-
      tion to thin effeot.     It shall be the duty of ruoh
      publio body awarding the oontraot, and it8 agent8
      and oiriaerr,    to take aognlzanoe or aonplaints of
‘II   all violatlona o? the provlpllons ot this Act aom-
      aitted in the course of the execution or the oontraot,
      and, when rnisklng paymntato the eontractor or monier
      bemaing due undor said contraot, to withhold and re-
      tain therefrom all aicaa and e,munte which shall have
      been forieited    pursuant to the herein said etipula-
      tion and the terms oi thie not; provided,       however,
      that no 8uta 8hall be 80 withheld, retained      or for-
      felted,    except from the tinal puyrsent without a rull
      investigation    by the awarding body. ft shall be law-
      ful for any oontractor to withhold from any auboontrao-
      tor under him suffioient     8ume to oover any penaltler
      withh4ld irota him by the awarding body on aooount of
      the said nubaontraator’s tailum to oomplp with the
      ternu of thlr hot, and if payaent ha8 already been
      awl6 to him the aontraator may recover rrons him the
      amount of the penalty or iorfelture      In a ruit at law.
            *Sea. 3. The ooatraotor and each ouboontraotor
      rball keep, or oause to be kept, an aoourete reoord
      ehowing the mm%8 and oaaupatlonr of all laborerr,
IIonorable ,r'iesver Ii. i3akar, PUBS6




     worknan and msohsnics employed by him, in aonneo-
     tion with the raid pub110 work, and showing also
     the aotual per diem wages paid to each of suoh
     workers, whloh record shall be open at all reason-
     able hour8 to the inspection of tb pub110 body
     awarding the contract,  It8 officers and agentl.
               Veo. 4. Any oonetruotion or repair work
      dons   under contraot, and paid for in whole or in
      part out of pub110 fund8, other than work done
      dir8Otly    by any publi0 utility    008ipar~y pUr8Ufh
      to order of the Railroad Co1mlr8lon or other pubb-
      lio authority, whether or not don8 Under pub110
      supervl8lon or direstion,       or paid for wholly or
      in part out or publio funds, ehall bs held to ba
      'pub110 works’ within the ,msaning of thir Act. The
      tern 'looality    in whloh the work is performed*
      shall be held to 5eean the oounby, city and oounty,
      oity, town, district     or other polltlonl     subdlrislon
      of this State in whioh the building, highway, road,
      sxoavation, or other 8tructun,        project,   deoelop-
      ment or Lmproremeat 18 8itUdOd. in all oa8e8 in
      whiah the oontreat is awarded by the State, or any
      pub110 body thereof, and shall bo held to mean the
      limit8 of tha county, oity and aounty, oity, town,
      dlstrlot    or other polltloal    subdlolslons   on wkosr
      behalf the OOutraOt I8 awarded in all other CaSe8.
      The term 'general prevailing rate of psr diem wages'
      shall be the rate dotermlnsd upon a8 such rate by
      the pub110 body awarding the oontraot, or authoriz-
      ln$ the work, whose dsolslon in ths matter shall be
      tinaL.     Nothing in this Bat, however, shall be con-
      strued to prohibit the paymsnt to any laborer, work-
      man or meohanlo employed on any publio work aa afore-
      8aid ot mqre than the said general prevailing rate


           Section8 6 and d of said Aot being penal prOYi8iOn8
are 08rrled a8 Hrtiole lB81a 0S the Penal Code and prorlde a8
tO11OW8 3


               *'Yea. 5. Any oiflosr, agent or reprssenta-
      tire OS the State      or any Polltlosl   subdlvlelon,
      dlstriot    or munlo~palitg theroof,    who wllfully
      shall violatr,or     omit to oomplf with, any of the
' .honordbls ::savcr 8. Dakur, page 7                                 8’75



       provl8ionr of thir  Aot, and any OOntrSJOtOr or
       suboontraotor,  or agent or representative  thereof,
       doing publio work a8 aforeraid,   who shall hegleot
       to keep, or cause to be kept, an acourate reoord
       OS the n3xe8,occupation and actual wages paid to
       each laborer,  workman and n%chanIo employed by him
       in oouneotion with the 8aId pub110 work, or who
       shall refuse to allow &00%%8 to 8a:ae at any r%aIon-
       able hour to any person authorizsd to’ lnspeot aarc
       under thir Act, rha11 be guilty of a inI8d4meanor,
       and ugon oon?iotion shall be punished by a fine of
       not exo%eding Plve Hundred Dollar8   $SOO.OO), or by
       impri8oIment for not %rc%%ding six I 6) months, or by
       both such fine and imprisonment, in th% di8Or4tiOQ
       of the Co*a.rt.
            *SW. 6. If any eeotioa, 84ntenc4, otause or
       part of thI8 Aot Is for any rea8on held to bs uh-
       OOIl8titUtiOIld   suoh d4Oi6lOn rha11 Ilot affeot th4
       remalnihg portion8 of this Act.      The Legislature
       hereby deOlare8 that It would hilve passed thls Act,
       and each motion,     sentenoe, clause, or part thereof,
       irr48p4otIv% 0S the foot thet one or more 84ctloa8,
       8entenc48, clauses or part8 thereof be deolared
       unoonst ltut ional.”


             ThI8 Aot ha8 been 00n8tZ?Fndc;; the Texas Court8 in
  the following oase81 southern &i           oanr *. Rsnnels, 119’
  8. w. (24) 0061 Awin Brldue CO~~ehllv. TeaRUe, 149 s. W. (2d)
  674; EUIQ AU8tin Erla& Oomuaar'I. Teauue. lS2 S. W. (24) 1091;
  in whioh t;he 8UDlWilSCourt reVsr8sd the -judgmnt or th%CourtV
  of Civil Appeal; in~the aame Oa84.
            The above QecIsionr are not helpful    to u8 in th18
  imvtanoe because they involve faot 8ituatIone    entirely difrer-
  ent from those presented hare.
            In the ~oUthemPri8on Company Oa84 th6 public body
  awarding ths wxk never made any determination of the prerail-
  ing wags scale for the type of work done by plaintlfi,
             In the Austin Bridge Coiepany 488% there wa8 a oon-
  trorerey a8 to whether the type of work don6 by the plaintiff
  was 8killed or unskillQa labor.
honorable   Sje~avcrH. Bakar, page 5




           Ih the fLI8tant 0884, we are confronted by a mutual
alstake of fact made by the State   2okrJrdof Control and the
hfoore Construotion Compehy a8 to the prorsllIn$ wag0 scale
ior plasterer8.
           The oontract entered into between them 8at out that
the provision8 or House Bill 54, Chapter 45, Acts oi the Be-
gular &melon of the Borty-third Legirlature,     (Artiole 5159a,
V.A. 0. 8..  and Artiole  155la, Penal Code)  would be la @Meat
on the oontraot.    Both parti   to the oontract were bound by
8aId hot and &ore    COnstrUotlOn   Co!qm~y paid the pretaillng
rate on ascertaining what it wa8.
            It is %lem%ntsry that whsre there 18 a mutual uils-
take or faot that   a oontraot will be r%iormed to express the
true intent   of the partie8,  eraspt when rights of third per-
tie8 twre Intsrvened,    and in 808% other ihstsnCs8 not involrea
here.
        The rule 18 8tated 10 “RELfTATE-i?X;T
                                           OP TifS I&# OF
CONTRACTS,”
          Vol. 2, page 968, Section 504, a8 ~ollowor

            n* * * where both parties have an ldentloal
        intention ce to the terrm to be embodied la a
        propoasa written oonveyanos, assignment, oon-
        traot or disohmge, and a writing eseoutsd by
        thea la materially at variance with that inten-
        tion, either party oan get a dears% that the
        writing shall be raformed so that It shall ex-
        press the intention oi the parties,  ii innooent
        third parsons will hot be unfairly afr%Oted thsre-
        by. *

            Prom the above, It 18 apparent that our an8wer to
your first qu48tlon ir that the State Board of Control is su-
thorlzed to pay Moore Construction Coxpsuy the sum OS #1,809.10
being an additional twenty-five (28#) cent8 per hour for 6422
hour8 oi labor by plastererl, 8am having besn paid said plaeter-
er8 aocordi.ag to the letter from Moore Construction Company in
addition to the 31.50     r hour pmvlded In the oontroot and
                       $
said total psyment of *1.75   per hour being ths rsoognizsa pm-
railing wage scale for plasterers In this vloinlty.
            The amwer to tour second queetlon in aontrolled
by tho answer to the first quecrtloa. The Board of Control
is authorized to pay the amount of additional insurance paid
by the contraotor whloh wan ooOasioned by auld oontraotor
paying the prevailing wage aoalo prosoribed by law instead
ot the bwar   raalo eet out in the aontraot*
           Our anawor to your third quo&ion      ID that the Board
or Control ia not authorized   to pay tea (lO$) per oent profit
on the two above rororred   to itomr, naavlyr   tho additional
amount paid tho plastererr   an4 the addltioaal   insuranoo  pal4
oooarlonod by tho higher r&o of pay, baoauao tho Oontcaot ln-
valved hero was not a Ooet ~1~8 oontroot, no atandardlr are ret
up in ram to ebow how prof itr aro to be arrived at, or oten
to show that tho oontraotor oxpeotod to make a aaah proiit on
thla traaeaotion.
            Idew tines oontraotr era made without erpeotation
or oash prorlt  Ln order to koop regular vmrkmonmiploged, to
obtain future business,  oto.

           The Itema whioh we have hold subjeot to pIpOAt
hero wero pald by tho oozitraotor in oonplfanoo with Ststo law.
The ltmn of ten per oent (lop) profit on maid paymentadoer
not tall within this oatogory,
                                        Very truly   youra,
                                    ATTORNEY
                                           GiNERALOF TEXAS
