
    ARTHUR B. BARRINGER v. THE UNITED STATES.
    [No. 21940.
    Decided December 2, 1901.]
    
      On the Proofs.
    
    The question involved in this case is whether a temporary employee in the Government Printing Office, serving for fractional parts of years, is entitled to leaves of absence, or pro rata pay, for unused leaves, during the periods of his employment.
    I.The Act 11th June, 1890 (29 Stat. L., 453), granting and regulating leaves of absence to employees in the Government Printing Office, extends “to those serving fractional parts of a year,” but nevertheless continues to lodge the granting of leaves of absence in the discretion of the Public Printer. Pie may determine the time when leave may be granted or refuse it altogether.
    II.The words in a statute, “It shall be lawful,” are mandatory; and the words “It shall be lawful to allow pay for pro rata leave” in the Act 11th June, 1896, impose upon the Public Printer the duty of allowing leaves of absence with pay to those who serve only during fractional parts of a year.
    III.The general policy of the eight-hour laws has been to restrict work, but not to increase compensation. The Act 11th June, 1896, abandons the policy of the previous laws. IJnder it a temporary employe iS entitled to leave or, if leave be refused him, to pro rata compensation.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Arthur B. Barringer, was from time to time employed as a compositor in the Government Printing Office daring the following periods:
    December 31, 1895, to February 26, 1896, inclusive;
    July 2, 1897, to July 31, 1897, inclusive;
    December 10, 1897, to July 16, 1898, inclusive;
    October 24, 1898, to March 4, 1899, inclusive;
    October 28, 1899, to April 27, 1900, inclusive, aggregating one (1) year eight (8) months and twelve (12) days.
    II. During his term of service as such he was paid at the rate of three dollars and twenty cents ($3.20) per diem of eight hours for the time served prior to July 1,1899, amounting to one (1) year two (2) months and (12) days, and at the rate of four dollars ($4) a day for such service rendered after Juty 1, 1899, amounting to six (6) months.
    III. He was not during any of the times of his employment allowed leave of absence or y>ro rata pay for leave of absence. If allowed leave of absence of thirty (30) days a year he would have been entitled to fifty-one (51) days’ leave. If instead of taking such leave he had boon paid pro rata for the same, he would have been paid three dollars and twenty cents ($3.20) a day for thirty-six (36) days and four dollars ($4) a day for fifteen (15) days, amounting to one hundred and seventy-five dollars and twenty cents ($175.20).
    IY. The claimant did not at any time during his several terms of service set forth in finding I apply for a leave of absence or for a money equivalent for the same. No leave of absence was granted or allowed to the claimant for the reason that under the rules adopted by the Public Printer regarding leaves of absence persons temporarily employed were not granted leave.
    Y.- All employees of the Government Printing Office in service from the 1st of July, 1886, to the 30th of June, 1895, whether permanent or temporary, have been paid for all accrued but unused leaves of absence. The last of the appropriations for such unused leaves was that of fifty-seven thousand eight hundred and fifty-nine dollars and sixty cents ($57,859.60), made by the act of July 19, 1897 (30 Stat. L., 134), and was based on an estimate of the Public Printer, who in transmitting the same' to the Senate informed that body that it included “many employees whose terms of service in the office were only for periods of less than one year,” and that “the amounts of goro rata leave which accrued to such persons are herewith included in the respective years in which they were earned.”
    
      Mr. George A. and Mr. William B. King for the claimant. Mr. Clark MeKerehet* was on the brief:
    The decision of this court in Harrison v. United States (26 C. Cls. R., 259) may well be accepted as a correct exposition of the law as it existed in 1891, when it was rendered. It is now, however, inapplicable under the far more liberal provisions of the acts of 1891, 1895, and 1896. Congress has now provided “that it shall be lawful to allow pay for -pro rata leave to those serving fractional parts of a year; also to allow pay for pro ruta leave of absence to employees of the Government Printing Office in any fiscal year,” etc.
    That the Public Printer is authorized to allow either a leave of absence or pro rata pay for an accrued but unused leave is clear. Do the words “it shall be lawful” entitle such’ employees to recover in this court the sums covering such accrued but unused leave?
    This question is answered in the affirmative by the long line of decisions of the Supreme Court in suits in mandamus against officers of municipal corporations to require them to levy a tax in order to moot judgments rendered against s uch corporations. A very strong instance in point was that in the case of Supervisors v. United States (4 Wall., 435), where a statute providing that a board of township supervisors “may, if deemed advisable, levy a special tax to pay the debts of the township,” was held mandatory to levy such tax wherever the debt had been reduced to judgment. In support of this conclusion the cases of Mayor of Wew York v. F\irse (3 Hill, 614) and Mason v. Fearson (9 How., 248) were referred to, in which it was expressly held that the words “it shall be lawful” were mandatory. (TIugg v. Camden, 39 N J. Law, 620.)
    The same principle is assorted in Bell v. Caldwell, 107 Pa. St, 48; Stines v. Franklin Co., 48 Mo., 167; Blake v. R. B., 39 N. H., 435; Arnold v. Pawtucket, 41 Atlantic Reporter, 576; Leavenworth v. Platte Co., 42 Mo., 174; State v. Keioark, 4 Butcher, 491; Jlugg v. Camden, 39 N J. Law, 620; Sifforcl v. Morrisoi, 53 Md., 14.
    1 n the case at bar the response of the Public Printer to the resolution of the Senate dated January 13,1897, above quoted, taken in connection with the appropriation made at the same session, shows that all employees, whether permanent or temporary, have received their accrued leaves of absence or pay therefor down to the 30th of June, 1896, and that those subsequently employed, if upon the temporary roll, have received neither. To hold that the Public Printer was invested with a discretion to put a stop to the execution of a law after it had received so plain a legislative construction as that which Congress placed upon it in four successive years — 1894:, 1895,1896, and 1897 — would be to invest that officer with a discretion which Congress never intended that ho should exercise. The only safe principle in such a case is that announced by the Supreme Court in Mason v. Fearson. (9 How., 238.)
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney-General JPradt) for the defendants:
    The point in controversy is practically settled bjr the decision of the Court of Claims in the case of Harrison v. United States (26 C. Cls. R., 259), and there is nothing in the different acts of Congress passed since that case was decided that would alter in any respect the decision of the court in that case.
    The act of June 11, 1896 (ch. 326, par. 10, 2 Supp. Rev. Stat., 526), embodies the act of June 19, 1894, and as this act does not repeal the act of August 1, 1888 (ch. 722, 1 Supp. Rev. Stat., 600), it follows that any provision of the act of 1888 which is not in conflict with the act of 1896 may be read and construed in connection with the later act.
    The provision of the statute shows upon its face that it was intended for the regular employees of the Government Printing Office, and modified the provision that unused leaves of absence should not be allowed to accumulate, only to the extent of allowing thirty days’ leave of absence with pay on account of the previous year. At any rate, it could in no way affect the question to be decided in this case.
    It is evident that Congress considered it necessary to pass a specific act embracing and enumerating the periods of the services of employees and former employees of the Government Printing Office, in order to pay them for accumulated and unused leaves of absence, and that without such an act it is plain that Congress itself considered that they were not legally entitled to pay for such unused leaves of absence.
    To grant claimant’s contention would be in direct violation of section 3648 of the Revised Statutes, which says “that pajunent shall not exceed.the services rendered,” and it is needless to say that Congress would never have indulged in such reckless and unauthorized use of the public funds. If the Public Printer refused to grant to the claimant pro rata leaves of absence with pay to which he was entitled, and the claimant worked out his full time and was paid for the same at the legal rate of wages paid in the Government Printing Office, then it is evident he should have made his objection to the refusal of the Public Printer at that time, and it is now too late to bring this matter up, as it was at most a matter between himself and the Public Printer.
    
      Mr. Geo-rge A. and Mr. William B. King in reply:
    A prominent instance of a change of law being effected by the introduction of a single word into a statute is afforded by the case of Bowen v. United States (14 C. Cls. B., 162, affirmed in 100 U. S., 508), where the court held that the introduction of the word “such” into the Eevised Statutes effected an entire change from what the law was prior to the enactment of the revision.
    The same principle was acted on in Fisher v. United States. (lo C. Cls. R., 323, 326; 109 U. S. 143.)
    In one, at least, of these cases the introduction of the word which would make the change was probably accidental. In the case of Adams y. United States (20 C. Cls. R., 115, 116) the opinion opens with the words:
    “This suit grows out of a change by the Revised Statutes, possibly inadi'ertently made, in the compensation of inspectors of customs.”
    Yet, accidental as the change may have been, the court gave effect to it and allowed the additional compensation granted by the provisions of the Revised Statutes.
    In this case, on the contrary, the circumstances leave no doubt that Congress knew what it was doing, and intentionally made the change in the law from “leave of absence with pay” to “pay for pro rata leave of absence.”
    
      Is discrimination between permanent and temporary employees warranted bjr the terms of the law? The brief submitted in behalf of the United States maintains the affirmative of this proposition, and in support thereof points to the provision of the act of 1896, which authorizes the Public Printer “ to allow pay for pro rata, leave of absence to employees of the Government Printing Office in any fiscal year, notwithstanding the fact that thirty days’ leave of absence, with pay, may have been granted to such employees in that fiscal year on account of service rendered in a previous fiscal year. ”
    This view, however, wholly ignores the clause immediately preceding, “that it shall be lawful to allow pay for pro rata leave to those serving fractional parts of a year.” The clause just quoted is merely the last of several in the act which seem designed to embrace by specification every possible employee of the Government Printing Office, no matter in what way or for what time engaged. The paragraph defines in its very opening clause, as widely as possible, the class of persons intended to be benefited. Its language is “The employees of the Government Printing Office, whether employed bj^ the piece or otherwise.” It then goes on to provide separately for “such employees as are engaged on piecework,” “those regularly employed on the Congressional Record,” and “those serving fractional parts of a year.” Thus not only is the opening definition as comprehensive as possible, but the subsequent specification of classes shows that it was designed to include every class of persons who could possibty be engaged at work in the Government Printing Office.
    The complaint made in this suit is not on account of the failure of the Public Printer to grant a leave of absence in kind. It is that, not having been granted his leave of absence in kind, he has not been paid pro rata for the accrued but unused leave. It is clearly established bj1- overwhelming-authority, and indeed conceded in the brief for the United States, that the expression of the statute, “it shall be lawful to allow pay,” etc., means that “the Public Printer is authorized and directed to pay.”
    Congress is, bj- the constitutional provision authorizing it “to pay the debts of the United States,” the sole judge of what constitutes a debt of the United States (United States v. 
      Realty Co., 163 U. S., 427, 440). Congress determined oy the legislation of 1894,1895, and 1896 upon the adoption of a policy for the future of paying for a pro rata leave of absence, and by the act of 1897 it determined that certain sums were “due for accrued and unpaid leaves of absence.” Thus for both past and future Congress has declared that these accrued and unpaid leaves of absence constitute “debts of the United States,” and has provided for their payment. Under these circumstances no branch of the Government is at libeidy to hold such pajnnent to be “reckless and unauthorized.” After all, the question is simpty one of calculation of a salary fixed by law.
    The several statutes allowing leaves of absence to the officers and employees of all the departments of the Government are collected and reviewed in note (6) to 1898, March 15. (Ch. 68, sec. 7, 2 Supp. Rev. Stat., 736.) It will there be seen that the employees of the Government Planting Office stand alone in being allowed “ pay for pro rata leave of absence.” Exceptional language must have an exceptional construction. It can not be assumed that Congress, when legislating for the Government Printing Office in language different in so marked a degree from that employed in provisions for leaves of absence in every other department of the Government, intended nothing more than was provided for such other departments. That intention is, we submit, plainly demonstrated by the terms of the law itself. It is to allow a leave of absence, with pay, for thirty" days in each year to all the employees of the Government Printing Office, with pay for pro rata leave of absence accrued, but not taken, in the exact proportion of the term for which each employee has served, whether for the whole or a fractional part of any year.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney- General Rradt) answering Messrs. King’s reply.
    The reason why Congress in the general defic.iencj’- appropriation act of July 18, 1897, directed payment to emplees and former employees and' the . legal representatives of deceased former employees of the Government Printing Office for accrued and unpaid leaves of absence for the fiscal years 1887 to 1896, both inclusive, was because during those years no provision was made for the payment of leaves of absence of employees serving fractional parts of a year and Congress probably considered it an injustice to allow leaves of absence without pay; therefore it enacted this provision, and in order to avoid class legislation, it included all of the employees of the Government Printing Office. But that there is any reason for Congress to now pass such an act is absurd, because the employees serving fractional parts of a year stand on exactly the same footing, in regard to leaves of absence, that all other employees of the Government service do, and that Congress would favor this class of employees above all others is impossible. The fact that Congress did insert this pi’ovision in the general deficiency appropriation of 1887 is no better argument for the employees serving a fractional part of a year than it is for the permanent and regular employees to receive double pay for loaves of absence that have not been granted them, and the provision of this act certainly affords no ground for the claimant’s contention, that Congress intended to reverse the decision of the Court of Claims in the Harrison case, or that it intended to legislate for the future as well as the past. It has specified certain ymars in the past, but it has neither directly nor indirectly intimated that this action was intended to have any effect whatever for the future, and it is unreasonable to suppose that Congress intended to vest in the Public Printer authority to double the pay, for thirty days, of the regular employees of the Government Printing-Office, and to double the pay for the time occupied bytho^ro rata leaves to those serving fractional parts of a year by the simple process of refusing to said regular employees, and to those serving fractional parts of a year, leaves of absence- to which they were entitled. That is exactty what it would amount to if the claimant is correct in the position that he has taken.
   Howry, J.,

delivered the opinion of the court:

This case presents the question of the right of a temporary employee of the Government Printing Office, serving for fractional parts of a series of years, to pro rata pay for unused leaves of absence accumulated during the different periods of his employment. The issue involves a construction of the public printing act of June 11, 1896 (ch. 320, par. 10, 2 Supp. Rev. Stat., 526), and derives its chief importance from the circumstance that the cause is one of a class of cases affecting many hundreds of employees of the printing office in their relation to the Public Printer.

Plaintiff served between December 31, 1895, and April 27,, 1900, for five separate periods of time, the shortest of which was twenty-nine days and the longest seven months and six days. He was paid at the rate per day fixed by law. He was not granted any leave of absence nor pay for any unused leave whereby he was prevented from increasing his compensation for the length of time he might have been absent. He now sues for pay at the rate he was paid during the entire period of his service, or for a total of one year eight months and twelve days of work, at thirty days each year, amounting in all to fifty-one days.

In Harrison's case (26 C. Cls. R., 259) it was held that the intent of the legislation authorizing leaves of absence and regulating pay was only to grant leaves of absence, but not to grant double paj^for such leaves as the employees might take under the law but did hot receive. That decision was founded on statutes which authorized the Congressional (now the Public) Printer to employ at such rates of wages as he might deem for the interest of the Government and just to the persons employed, such proof readers, compositors, pressmen, laborers, and others as might be necessary (sec. 3763, Revised Statutes), which authorized leaves of absence, with pay, not exceeding fifteen days in any one fiscal year, to employees by the piece or otherwise after the service of one year, under regulations and at such time as the Public Printer might designate (act of June 30, 1886, ch. 572, 1 Supp. Rev. Stat., 499), and which made it lawful to allow pro rata leave to those serving fractional parts of a year, the annual leave being in the meantime extended to thirty days in each fiscal year (act of August 1, 1888, ch. 722, 1 Supp. Rev. Stat., 600).

While the decision in Harrison v. The United States is accepted by the learned counsel for plaintiff as a correct exposition of the law at the time it was rendered, nevertheless it is contended that subsequent legislation has made the views there announced inapplicable to a claim for unused vacation pay. The subsequent legislation vital to be considered is as follows:

‘ ‘ The employees of the Government Printing- Office, whether employed by' the piece or otherwise, shall be allowed leaves of absence with pay to the extent of not exceeding thirty days in any one fiscal year under such regulations and at such times as the Public Printer may- designate at the rate of pay received by them during the time in which said leave was earned; but such leaves of absence shall not be allowed to accumulate from year to year. Such employees as are engaged on piecework shall receive the same rate of pay for the said thirty day's’ leave as will be paid to day' hands: Provided, That those regularly employed on the Congressional Record shall receive leave, with pay', at the close of each session, pro rata for the time of such employment: And provided further, That it shall be lawful to allow pay' for pro rata leave to those serving fractional parts of a year; also to pay' for pra rata leave of absence to employees of the Government Printing Office in any? fiscal year notwithstanding the fact that thirty day's’ leave of absence, with pay, may have been granted to such employees in that fiscal yrear on account of service rendered in a previous fiscal y-ear. And the Public Printer is hereby authorized to pay to the legal representatives of any employees who have died during the fiscal years of eighteen hundred and ninety-four, eighteen hundred and ninety-five, eighteen hundred and ninety-six, or may' hereafter die, who have or hereafter may have any' accrued leave of absence due them as such employ-ees, and said claims to be paid out of any' unexpended balances of appropriations for the payment of leaves of absence to the employees of the Government Printing Office, for the fiscal years eighteen hundred and ninety-four, eighteen hundred and ninety-five, eighteen hundred and ninety-six, and out of an_y future appropriations for leaves of absence.” (2 Supp. Rev. Stat., 526, par. 10.)

This act of June 11,1896, allows leaves of absence with pay' to an extent not exceeding thirty day's in any' one fiscal year to the employees of the Printing Office, which includes those serving fractional parts of a yrear as well as day' hands and others, but, like preceding statutes, under such regulations and at such times as the Public Printer may' designate. Congress was again careful to limit the period of absence in any event, and at the same time to remit to the discretion of the Public Printer the duty of saying when an employee might take bis vacation in the fiscal year. The right of the Public Printer to make rules and regulations in the premises was continued by the new statute in the same language as that employed in the old, so that the act under which this suit was brought was enacted with knowledge by Congress that under the rules and regulations which had been prescribed for the administration of the Printing Office the Public Printer might control the time of leaves and refuse the same in an exigency.

The second proviso in the act of 1896 plainly confers the right upon those serving fractional parts of a year to leave of absence with pay. Thus if an employee serves six months he is ordinarily entitled to fifteen days’ leave of absence with pay, just as an employee serving a year continuously is entitled to thirty days’ leave with pay. The language in this second proviso is new in that it provides for p>ay for pro rata leave to thane serving fractional parts of a year. The provision was not in any of those acts under which Ilarrrisonis case was decided. Nor does the same phraseology appear in the act of June 19, 1891 (2 Supp. Rev. Stat., 198), which was reenacted in the act of March 2, 1895 (chap. 187, par. 3, 2 Supp. Rev. Stat., 127).

The public printing acts summarized in section 23, 2 Supp. Rev. Stat., 344, contain a proviso that it shall be lawful to allowyw rata leave to those serving fractional parts of a year. There is an omission to state that it shall be lawful to allow pay for pro rata, leave to those serving fractional parts of a year, and it is open to question under that kind of a proviso whether an unused leave could be paid for by an equivalent in money.

In saying “that it shall be lawful to allow pay for pro rata leave” the new statute imposed the general obligation on the Public Printer to allow the pro 'rata leave of absence with pay in kind on those serving fractional parts of a year. Though this statute is onty permissive in terms, the authority must be construed to be a duty in general. The words “it shall be lawful” are mandatory. (Mason v. Fearson, 9 How., 248; Supervisors v. United States, 4 Wall., 435; Mayor of New York v. Furze, 3 Hill, 614; Bell v. Caldwell, 107 Pa. St., 48; Stines v. Franklin Co., 48 Mo., 167; Blake v. R. R., 39 N. H., 435; Arnold v. Pawtucket, 41 Atlantic Reporter, 576; Leavenworth v. Platte Co., 42 Mo., 174; State v. Newark, 4 Dutcher, 491; Hugg v. Camden, 39 N. J. Law, 620; Sifford v. Morrison, 53 Md., 14.)

But do these words entitle a temporary employee to recover in this court the sums covering such accrued but unused leaves ?

If we shall hold that the Public Printer could at will refuse the leave of absence in kind as well as the pay for the allowed but unused leaves, then employees serving fractional parts of a year would at the will of the Public Printer be deprived of both the leave and the pay. But this was not intended. It was the purpose, if language means anything, for fractional time workers to have the giro rata leave with the pay for the time of such leave as the employee might be entitled to have. W e must presume the Congress meant what it said. That is, it was meant that a per cent should be added to the rate of pay in diminishing the work, but continuing the pay as if the work was not curtailed.

It is true this legislation is not in line with the original purpose for which leaves of absence were granted. That purpose was well shown to be in Harrison's ease to restrict work, but not to increase compensation. Anomalous and inexpedient as it may seem to be to abandon the policy of the law pertaining to leaves, the underlying reason of which has always been to afford rest and recreation to steady workers, we think it has been done by the innovation that directs the leave in kind to those serving fractional parts of a year with gyro rata pay for the limited term of service.

, Where, then, a leave has not been granted in the case of a temporary employee detained because of the exigencies of the public printing service or discharged without fault on his part because his services are not needed, the payment of a money equivalent for the unused gyro rata leave is conferred by the statute. If the temporary employee is entitled to leave with pay for that fro rata period of recreation, it follows that he should have pay for the leave denied to him.

A rule that those serving fractional parts of a year may withdraw at pleasure and yet claim an equivalent in pay might defeat the purpose of the law, or, at least in times of emergency, embarrass the operations of an office peculiarly dependent for its efficiency upon proper rules and regulations which the law authorizes its head to prescribe. Leave of absence ordinarily implies a return to official duty, and a discharge for cause or withdrawal at the pleasure of the employee may not impose the same consequences as in those cases where the employee is without fault. But whether a temporary employee can at his own pleasure sever his connection with the Public Printing Office and then claim a pro rata leave with pay, and whether such an employee practically severs that connection by misconduct so that his discharge therefor results from his own acts at a time when his service is needed and yet claim the pro rata leave with pay, are questions not in this case, and are therefore not decided.

If the question of whether plaintiff was discharged because of his fault is material to the decision of the issue involved, the burden of that proof rests upon the defendants, and plaintiff is not bound to show that he was discharged through no fault of his own. Judgment will therefore be entered for plaintiff in the sum of $170.20.  