
    HOWARD C. MYERS v. THE UNITED STATES; JOHN H. ARBLE v. THE UNITED STATES; CHARLES C. MARTIN v. THE UNITED STATES; WALTER O. PLITZ v. THE UNITED STATES; GEORGE H. SPITZ v. THE UNITED STATES
    No. 43671
    No. 43672
    No. 43673
    No. 43674
    No. 43675
    [Decided February 1, 1943.
    Defendant’s motions for new trial overruled April 5, 1943]
    
    
      
      Mr. Robert M. Drysdale for the plaintiffs.
    
      Mr. J. Frank Staley, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Mr. Sidney J. Kaplan was on the briefs.
    
      
       Petition for writ of certiorari granted October 11, 1943.
    
   Whaley, Chief Justice,

The sole question in thesei cases is the liability of the United States for extra compensation for services rendered at night, on Sundays or holidays by customs inspectors at the port of Detroit, Michigan. No, claim is made for extra pay for any work other than the regular tours of service of eight hours during the twenty-four hours of any day. The parties have stipulated that the five cases in suit [Nos. 43671,43672, 43673, 43674, and 43675] shall serve as test cases for the determination of twenty-two other suits by customs inspectors at the port of Detroit to recover extra compensation.

Plaintiffs’ claims are based on section 5 of the act of February 13, 1911, 36 Stat. 899, 901, as amended by the act of February 7, 1920, 41 Stat. 402, and sections 450, 451, 452, and 401 of the Tariff Act of 1930, 46 Stat. 590, 715. (U. S. Code, Title 19, section 267.)

The solution of the question involves an interpretation of the section of the Act of 1911, as amended, which reads as follows:

Sec. 5. That the Secretary of the Treasury shall fix a reasonable rate of extra compensation for overtime services of inspectors, storekeepers, weighers, and other customs officers and employees who may be required to remain on duty between the hours of five o’clock postmeridian and eight o’clock antemeridian, or on Sundays or holidays, to perform services in connection with the lading or unlading of cargo, or the lading of cargo or merchandise for transportation in bond or for exportation in bond or for exportation with benefit of drawback,, or in connection with the receiving or delivery of cargo on or from the wharf, or in connection with the unlading, receiving, or examination of passengers’ baggage, such rates to be fixed on the basis of one-half day’s additional pay for each two hours or fraction thereof of at least one bour that the overtime extends beyond five o’clock postmeridian (but not to exceed two and one-half days’ pay for the full period from five o’clock postmeridian to eight o’clock antemeridian), and two additional days’ pay for Sunday or holiday duty. The said extra compensation .shall be paid by the master, owner, agent, or consignee of such vessel or other conveyance whenever such special license or permit for immediate lading or unlading or for lading or unlading at night or on Sundays or holidays shall be granted to the collector of customs, who shall pay the same to the several customs officers and employees entitled thereto according to the rates fixed therefor by the Secretary of the Treasury: Provided, That such extra compensation shall be paid if such officers or employees have been ordered to report for duty and have so reported, whether the actual lading, unlading, receiving, -delivery, or examination takes place or not. Customs officers acting as boarding officers and any customs officer who may be designated for that purpose by the collector of customs are hereby authorized to administer the oath or affirmation herein provided for, and such boarding officers shall be allowed extra compensation for services in boarding vessels at night or on Sundays or holidays at the rates prescribed by the Secretary of the Treasury as herein provided, the said extra compensation to be paid by the master, owner, agent, or consignee of such vessel: Provided, fiwther, That in those ports where customary working hours are other than those hereinabove mentioned, the Collector of Customs is vested with authority to regulate the hours of customs employees so as to agree with prevailing working hours-in said ports, but nothing contained in this proviso shall be construed in any manner to affect or alter the length of a working day for customs employees on the overtime pay herein fixed.

The plaintiffs performed services at night, or on Sundays or holidays, at the port of Detroit where goods, merchandise, passengers, and baggage arrived from or entered Canada on, over, and under the Detroit River by way of ferries,, tunnels, and a bridge.

Extra. compensation is claimed for night services at all stations and for Sunday or holiday services at the ferries, tunnels, and bridge.

At one of the tunnels extra compensation was paid for Sunday or holiday services. Plaintiffs performed at all' the stations herein involved services at night, or on Sundays or holidays, in connection with the lading and unlading of' cargo, or the lading of cargo or merchandise for transportation in bond, or for exportation in bond or for exportation with benefit of drawback, or in connection with the receiving- or delivery of cargo on or from the wharf, or in connection with the unlading, receiving, or examination of passengers’’ baggage. Only eight-hour periods of the twenty-four hours of any day, including Sundays or holidays, were performed., There is no claim made for any excess of time over eight hours.

Before November 15, 1929, when the Ambassador Bridge was opened, customs officers and employees at the port of' Detroit were paid at all stations extra compensation for Sunday or holiday services. After the opening of the Bridge the collector of customs stopped payment of extra compensation for Sunday or holiday services at the ferries and tunnels and substituted therefor the practice of giving compensatory time off at a later date. No extra compensation for Sunday or holiday duty was made at the Ambassador Bridge or the Detroit and Canada Tunnel but compensatory time off was granted.

There is no difference between a ferry, a bridge, and a tunnel as a means of conveyance of persons, baggage, or freight from one side of a river to another. All accomplish the same purpose. The Tariff Act of 1930, Sec. 401, 46 Stat. 708, defines a vehicle in the following language:

The word “vehicle” includes every description of carriage or other contrivance used, or capable of being used, as a means of transportaion on land, but does not include aircraft.

This is a very broad and comprehensive definition. It was necessary to have inspectors of Customs at these bridges and tunnels during the hours they were open for use just as much as it was necessary to have them upon arrival of ferries or vessels. Dutiable articles could be brought in over the bridges and tunnels just as well as by vessel. Persons entering the country could come in over these fixed structures just as easy as by ship. ' These structures had to be guarded and' the articles inspected. It was encumbent upon the defendant to furnish the inspectors whether the bridges and tunnels were privately or publicly owned. A bond could have been required and exacted by the Government to pay for the extra time service.

Section 5 of the act of 1911, as amended by the act of 1920, is not ambiguous but plain and clear. It not only provides extra compensation for overtime services of customs officers and employees who are required to perform services after five o’clock P. M. and before eight o’clock A. M. (defined in the act as “night” service) or Sundays or holidays but it definitely states the basis of the compensation of those who work between five o’clock postmeridian and eight o’clock antemeridian not to exceed two and one-half days’ full pay and for the services on Sundays or holidays not to exceed two additional days’ pay.

Plaintiffs were on a yearly salary of $2,100 and were on duty after five o’clock postmeridian and before eight o’clock antemeridian or on Sundays or holidays.

It is contended that overtime means only “extension of work hours above eight hours in twenty-four” but there is nothing in the act to this effect. On the contrary, the act plainly states that the services rendered after five o’clock in the afternoon and before eight o’clock in the morning or on Sundays or holidays shall be “overtime.”

In Ferguson v. Port Huron & Sarnia Ferry Co., 13 Fed. (2d) 489, 492, in considering the provisions of section 5, the court held:

* * * The term “overtime” appropriately expresses the meaning, and in my opinion was intended to express such meaning: “Beyond the regular, fixed working hours.” The word “remain,” in the clause referring to officers required to “remain on duty between the hours” mentioned, means, according to its proper interpretation, “remain on duty after reporting for such duty.” The section itself provides that “such extra compensation shall be paid if such officers or employees have been ordered to report for duty and have so reported, whether the actual” work contemplated “takes place or not.” As was pointed out by the Supreme Court in its opinion in International Railway Co. v. Davidson, 257 U. S. 506, 42 S. Ct. 179, 66 L. Ed. 341: “This * * * section defines what shall be deemed overtime.” The only definition thus employed was the reference to the period of time between the particular hours specified, without regard to the question whether the services rendered “at night” or “on Sundays or holidays” immediately and continuously followed services just completed for regular pay. Clearly, the object of the statute was to facilitate lading and unlading “at night” and on Sundays and holidays, irrespective of whether the officers working in connection therewith had previously worked during the regular hours of the immediately preceding regular working “day.”

It is contended by the defendant that the portion of the section which reads:

* * * The said extra compensation shall be paid by the master, owner, agent, or consignee of such vessel or other conveyance whenever such special license or permit for immediate lading or unlading or for lading or unlading at night or on Sundays or holidays shall be granted to the collector of customs, who shall pay the same to the several customs officers and employees entitled thereto according to the rates fixed therefor by the Secretary of the Treasury * * *

imposes the liability on the carrier and that, unless work is performed under a special license granted by the collector, no extra compensation accrues and nothing can be paid.

Section 451 of the Tariff Act of 1930, 46 Stat. 715, requires that before a special license to unlade can be granted to the master, owner, or agent, a bond in the penal sum to be fixed by the collector be given “conditioned to indemnify the United States for any loss or liability” which might occur. Section 452 of the same act requires a special license to lade at night or on Sundays or holidays.

The bond required is to “indemnify” the United States for the extra compensation which has to be paid the customs officers and employees who perform duties for which the license is given and which required the services to be rendered at night or on Sundays or holidays.

These customs officers and employees were employed by and received their compensation from the collector acting for the United States. Under the act of March 3, 1917, c. 163, § 1, 39 Stat. 1106, they could not receive their pay for services from any private source. Customs officials especially are forbidden to receive such payment. Revised Statutes, § 1790. Payment had to be made by the Government through the collector and the extra compensation to the inspectors had to come out of the funds of the Government and the Government was liable for the extra compensation. The failure by the Government to collect from the carrier would not relieve it of liability for the extra pay for services during the periods under the statute.

It is contended by the defendant that the proviso of this section gives the collector full authority to require customs officers and employees to work at night or on Sundays or holidays without extra compensation. The proviso reads as follows:

Provided further, That in those ports where customary working hours are other than these hereinabove mentioned, the Collector of Customs is vested with authority to regulate the hours of customs employees so as to agree with prevailing working hours in said ports, but nothing contained in this proviso shall be construed in any manner to affect or alter the length of a working day for customs employees or the overtime pay herein fixed.

It will be seen that the latter part of the proviso prohibits alteration of the length of a working day of customs employees or overtime pay fixed in the statute. The plain intent of the proviso is to permit collectors of customs at ports where longshoremen and others are accustomed to begin work earlier or later than the hour fixed by the section, to adjust the customs employees’ working day to correspond with the •customary daylight working period at a certain designated port. In other words, the collector could allow the inspectors to work from 7:00 A. M. to 4:00 P. M. instead of from 8:00 A. M. to 5:00 P. M. because at a particular port it was •the custom of the longshoremen to work these particular hours. It specifically states that this arrangement to a custom of a port shall not affect or alter the length of a working day for customs employees or the overtime pay fixed therein.

We do not think it necessary to go into an extensive discussion of the contention of the defendant that Congress gave legislative approval to the system of compensation and working hours adopted by the collector of customs at the port of Detroit by the passage of the Appropriation and Tariff Acts of 1922 and 1930 and by the insertion at the end of section 451 of the Act of 1938, 52 Stat. 1082, of the following provision:

Nothing in this section shall be construed to impair the existing authority of the Treasury Department to assign Customs officers or employees to regular tours of duty at night or on Sundays or holidays when such assignments are in the public interest,' * * *

There- is no denial of the fact that the Treasury Department has the right to assign the customs officers and employees to regular hours of duty during any eight-hour period of the twenty-four hours of a day. However, there is nothing under this provision which restricts or qualifies the right of the customs officers and employees to extra compensation as provided by law for services rendered at night, or on Sundays or holidays.

It is our conclusion that plaintiffs have the right to extra •compensation as fixed by section 5 of the Act of 1911, as .amended by the act of 1920, for services performed between the hours of five o’clock postmeridian and eight o’clock ante-meridian, or on Sundays or holidays, and the defendant is liable for such extra compensation. This is in addition to the .base pay which plaintiffs have been paid.

This court can only construe the statute as it is written by the lawmaking body. It cannot indulge in judicial legislation. If the amounts granted as overtime are apparently excessive as compared with those allowed in other occupations, Congress alone can apply the remedy.

Plaintiffs are entitled to recover as follows:

No. 48671. Howard 0. Myers_$13, 759.41

No. 43672. John H. ArUe_ 10, 219.23

No. 43673. Charles C. Martin_ 12,225. 32

No. 43674. Walter 0. Plitz_ 12,277.94

No. 43675. George H. Spitz_ 10,267.68

It is so ordered.

JONES, Judge: and Littleton, Judge, concur.

WhitaKER, Judge, took no part in the decision of this case.

Madden, Judge,

concurring in part and dissenting in part:

I agree with the opinion of the court that the word “overtime,” as used in the applicable statute, means, contrary to its ordinary meaning, work done outside the hours mentioned in the statute, and on Sundays and holidays, even though some or all of the time so designated as “overtime” falls within the regular daily or weekly working period of the employee who claims extra pay for the “overtime.” It follows that so much of the work as is really covered by the statute must be paid for at the statutory rate. I agree also that the ■Government’s failure to collect the' amount of its extra expense from the railroads and ferry companies is no answer to the demand of plaintiffs that they be paid the' statutory compensation. I disagree, however, with the application of the statute relating to extra compensation to the customs employees at the Ambassador Bridge and the Detroit and Canada Tunnel, and think that the judgments should be reduced to whatever extent they include extra compensation for such services.

The language of the statute, Section 5 of the act of February 13, 1911 (36 Stat. 901), as amended by the act of February 7, 1920 (41 Stat. 402; 19 U. S. C. 267), which is made a part of the Tariff Act of 1930 by reference, shows that the extra compensation to be paid to customs’ employees was to be collectible from those who used the extra service. The statute says: “The said extra compensation shall be paid by the master, owner, agent, or consignee of such vessel or other conveyance whenever such special license or permit for immediate lading or unlading or for lading or unlading at night or on Sundays or holidays shall be granted to the collector of customs, who shall pay the same to the several customs officers and employees * ‡

The legislative history of the statute is to the same effect. At the hearings before the Committee on Ways and Means on H. R. 9525 (61st Congress, 2nd Sess.), the companion bill of S. 6011, which became the act of February 13, 1911, several colloquies occurred, in each of which assurance was given that the statute was to be administered without cost to the Government. See pages 462, 463, 464, 470 of the hearings. The Report of the Committee on Ways and Means on S. 6011 recommended passage with the following amendment : “the said extra compensation to be paid by the master, owner, agent, or consignee of such vessels.” The amendment was adopted.

Plaintiffs do not urge that the 1920 amendment of the act of 1911 changed the meaning of the act in this respect. They urge rather that all of the extra compensation for which they sue has been collectible from the users of the service, and that the Government has, by its own negligence, failed to collect the extra compensation from the users of the service, though it has had the legal right to collect it. In effect, then, we are asked by plaintiffs to decide not only that customs employees who rendered the services which they rendered, are entitled to collect extra compensation from the Government at the rate fixed in Section 5, but that the users of such services should have, in the past, and should in the future, apply for and take out a special license or permit pursuant to Section 451 of the Tariff Act of 1930 (46 Stat. 708, 715; 19 U. S. C. 1451), giving bond to indemnify the United States for any loss or liability which might result from the special license or permit, and to pay the extra compensation to the employees.

Among the services sued for by plaintiffs were those at the Ambassador Bridge, which spanned the Detroit River, connecting Detroit and Sandwich, Ontario. We have found that over this bridge “Traffic was continuous for twenty-four hours per day and included foot passengers, vehicular traffic, commercial trucks and busses.” In my opinion, the statutes do not require the Government to impose upon a pedestrian who walks across the bridge between five o’clock in the afternoon and eight o’clock in the morning, the duty of applying for a permit and giving a bond to pay the extra compensation of customs employees. The pedestrian might well point to the statute, which speaks of a “vessel or vehicle” (Tariff Act of 1930, Section 451, 46 Stat. 708, 715), and urge that even the broad definition of vehicle which appears in Section 401 of that act does not include his means of locomotion. Private automobiles also cross the bridge. I do not believe that Congress intended that each person who drives his automobile or truck across the bridge should have to apply for a permit or license and give a bond to pay for his small portion of extra compensation of customs employees.

Plaintiffs, apparently recognizing that such a construction of the statutes would, in effect, close the bridge to private traffic from five o’clock in the afternoon until eight o’clock in the morning, and largely destroy its usefulness, do not urge that this burden should be imposed upon such users. They urge rather that the owner of the bridge should be the one who should apply for the permit, give the bond, and pay for the extra compensation of the customs employees. This would be a less inconvenient solution of the problem, but the statutes do not seem to me to permit it. Section 401 (b) of the Tariff Act of 1930 defines a vehicle, for the purpose here in question, as follows:

The word “vehicle” includes every description of carriage or other contrivance used, or capable of being used, as a means of transportation on land, but does not include aircraft.

I do not think a bridge is a vehicle, within either the ordinary or this statutory definition of that word, any more than a road is a vehicle. Since the duty is imposed upon the “master, owner, or agent, or Act of 1930, Sec. 451, 46 Stat. 708, 715), it does not fall upon the owner of the bridge, unless, as plaintiff urges, as an agent the customers of his bridge. In the case of the pedestrians, we need not inquire into the question of agency, since no vehicle is involved at all whose owner might be represented by an agent. In the case of the-private automobile or truck, I do not see how the collection of a bridge toll from its owner or driver constitutes the owner of the bridge the agent of the owner or driver with reference to customs, if any, collectible upon his load or baggage, if any. Plaintiff urges that the provisions of Section 453 of the Tariff Act of 1930 (46 Stat. 708,716), imposing a penalty for unlading without a special permit upon, inter alia, “every other person who knowingly is concerned, or who aids therein,” of the value of the merchandise or baggage, and, in some cases, of the forfeiture of the vessel or vehicle, make the owner of the bridge an agent of his customer for the purposes of obtaining a special license and giving bond. This section does not, by imposing a penalty upon one who comes within its definition, make such a person the agent of another for the purpose of applying for a license or giving a bond for him. Besides, one who permits another to walk across his toll bridge, or drive his automobile across it, is not “knowingly concerned” with the others unlading a vehicle without a license, when the other has no vehicle, or if he has one, it is no concern of the bridge owner whether he has or has not anything in it to unlade.

I would conclude from the foregoing that, with reference to what is probably the larger part of the traffic across the Ambassador- Bridge, the statutes here in question have no bearing upon it. If the customs authorities are willing to permit entry of such traffic into the United States at this point during any hour of the day, they may do so, .but the statutes, in my opinion, give them no power to impose special requirements upon such users of the bridge. And I have grave doubts as to whether they have the power to impose such requirements upon public busses and trucks, since the port is not kept open for their convenience and no extra expense is usually incurred in order to serve them. Certainly tbe whole of the cost, outside the hours from 8 A. M. to 5 P. M., could not be imposed upon the few public conveyances that might enter during that time, when in fact the entry is kept open for public convenience to accommodate the much greater number of other persons to whom the statutes relating to special licenses and bonds and payment of extra compensation have, as I think, no application.

What I have said about the Ambassador Bridge is applicable also to the Detroit and Canada Tunnel. A tunnel is not a vehicle and the statute relating to extra compensation does no*, I think, apply to it.

If, by what I regard as a strained construction of the word “vehicle,” or the word “agent,” as used in the statutes, we hold that the Government may collect from the Bridge Company or the Tunnel Company, and therefore must pay its customs employees extra compensation, we have still found no solution for the numerous points of entry where the access to the border is over a free public road. Then there would be no person to whom, by any stretch of interpretation, the extra compensation could be shifted, hence extra compensation would not be payable.

In my opinion, the applicable statute is not one which should receive a strained construction in order to permit plaintiffs to recover. The public inconvenience of either closing these facilities except for a few hours in the daytime, or else imposing the whole expense of keeping them open upon only a few of those who are accommodated by their being kept open, would be great. As to keeping these facilities open at the public expense, without reimbursement from the users, and paying the employees who work their regular eight hour shift or a part of it, at some time between five P. M. and eight A. M. at the rate of three days pay for one eight hour day’s work, or three hours pay for one hour’s work, no one contends, I believe, that there is any warrant in the statutes for that. That scale of extra compensation is provided for only in statutes which provide for its reimbursement by the users of the service, and the legislative history shows that it was not intended to be paid when the Government could not recover it. Aside from this section, there is nothing in the statutes to indicate that customs employees are regarded by Congress as being in a different class from other employees of the Government, such as postal employees, who must do their regular day’s work at such time of day as the work is needed. It is of interest to note that Congress has provided for extra pay of 10 percent of the regular hourly rate for certain postal employees for work done between six P. M. and six A. M. It could hardly be supposed that Congress intended that for another class of employees the extra pay, payable out of the public treasury, and without reimbursement to the Government, should be 200 percent instead of 10 percent, for working during the less desirable hours. 
      
       Act of May 24, 1928, C. 725, 45 Stat. 725, as amended May 12, 1939, C. 129. 53 Stat. 741, 39 U. S. C. 828.
     