
    MARCOPOLO M. RUSH ET AL., Letter Carriers in San Francisco, v. THE UNITED STATES.
    [No. 17696.
    Decided May 23, 1898.]
    
      On the Proofs.
    
    The claimants are letter carriers in San Francisco. September 5,1888, the postmaster puts into effect a new schedule under which carrier service is limited to eight hours each day. The carriers are dissatislidd because it extends their period of service over a greater number of hours, and because they can not utilize the intervals between deliveries as well as under the old schedule, which they request may be continued. They are informed that this can not be done unless they will waive claims for excess of time. At a meeting of carriers they pass a resolution requesting that the old schedule be continued, and make the waiver required. Copies of the resolution are signed and the old schedule is continued.
    I.The Act May 14, 1888 (25 Stat. L., 157), provides “ that hereafter eight. • hours shall constitute a (lay’s work for letter carriers, and that if any carrier is employed a greater number of hours he shall be paid extra for the same in proportion to the salary receivedCarriers are not entitled to pay for excess of time unless they be “employed” — that is, engaged in active postal duties; and they can not be so employed without the authority of the postmaster.
    II.If a carrier in good faith performs postal duties more than eight hours a day with the knowledge and consent of the postmaster, a contract of employment will be presumed.
    III.Where overtime is made by letter carriers with the knowledge of the postmaster, and he permits the same because they agree to waive a claim for extra pay therefor, the request and waiver are in legal effect an agreement on the part of the carriers who sign the same that in consideration of the postmaster continuing the old schedule they will rvaive their claims for extra pay. '
    
      IV. A postmaster has.no authority to increase or diminish the number of hours constituting a day’s work, nor to employ a carrier to work more than eight hours a day, except as the same may be required by the public service.
    V. The right to salaries depends upon appointment which is wholly a matter of statute; the right to extra pay for overtime depends upon employment by the postmaster, and, being- a matter of contract, they can waive a claim for it.
    
      The Reporters’ statement of the case:
    The following are the facts case as court:
    I. During the summer of 1888 the claimants, and them, were letter carriers in the post-office at San Francisco, Cal., and' as such were serving under the schedule of time for delivery of mail matter then in force under the direction of the postmaster in that city. Many of them resided on the line of their respective routes, and were thereby enabled to spend the intervals of time between deliveries at their homes. While so serving under said schedule the Postmaster-General caused to be issued and directed to the postmaster at San Francisco and to others a circular, as follows:
    
      “May 29, 1888.“Sir: It will be necessary to reorganize the free-delivery service at all offices to comply with the provisions of the following law recently enacted by Congress, when an adequate appropriation shall be made for that purpose:
    for letter carriers in cities or postal districts connected therewith, for which they shall receive the same pay as is now paid for a day’s work of a greater number of hours. If any letter carrier is employed a greater number of hours per day than eight, he shall be paid extra for the same in proportion to the salary now fixed by law.’
    “ Please formation:
    
      “At what time do your carriers report for duty, and when do they finally leave for the day? During this time how many hours of actual labor are performed by the carriers ?
    “ Please fill out a (or your showing details as to the various deliveries and give the time required to route up the mail for delivery on J une 1,1888. In case your carriers now perform more than eight hours of actual labor, you will oblige by submitting a plan for reorganization of your force so that the actual working time of each carrier shall not exceed eight hours, so divided as to provide for the proper collection and delivery of the mails and the convenience of the public.
    
      “In places where the labor performed by carriers exceeds eight hours, the shortening of some routes and the addition of one or more new ones will be necessary, unless there are at present unimportant deliveries which can be dispensed with without detriment to the service.
    “As a rule, there is an interval between every delivery during- which the carriers are not employed as contemplated by this law. Whenever, after a reorganization under this act has been effected, this interval shall amount to one hour or more, the carriers will be considered as off duty for that time. Under ordinary circumstances a time can be fixed, based on experience, within which the deliveries and collections are to be made. This will render the service more efficient and enable the carriers to complete the work and prevent those so disposed from improperly claiming for overtime.
    enacting this law was to class letter carriers with other Government employees who are required to perform but eight hours of labor, the matter of payment for overtime need not be considered in connection with the plan of reorganization herein requested to be submitted, as it is the intention of the Department to require but eight hours of labor of any letter carrier and to provide an addition to the force whenever necessary in order to comply with the spirit of the law.
    “In all cases where a postmaster shall, in answer to this circular letter, suggest a plan economical, reasonable, and businesslike, which shall include the least number of additional carriers (if any will be needed), action can be taken promptly and without delay which would be caused by sending an inspector.
    “Please give this matter immediate attention, in .order that your reply may reach this office not later than June 20th, if possible, and oblige.
    “By direction of the Postmaster-General.
    “Very respectfully,
    
      u Supt. Free-Delivery System.”
    
    “J. F.
    II. In accordance with the instructions set forth above, the postmaster at San Francisco arranged a schedule for the collection and delivery of mail, and while the schedule so arranged extended over a period of more than eight hours a day the carriers would thereby have been enabled to complete their day’s work within eight hours of actual service. This schedule was arranged and made known to the claimants and was to have been put into force September 5, 1888.
    III. The schedule so arranged under the instruction of the Postmaster-General met with the disapproval of the great maj ority of the carriers, because it exten ded their services over a greater number of hours and because they could not utilize the intervals between deliveries at their respective homes or to their advantage and satisfaction otherwise so well as they could under the old schedule, and they so informed the assistant postmaster and requested that the old schedule be continued in force; but they were informed by him that in view of the instructions of the Postmaster-General the old schedule could no longer be continued in force unless they would waive whatever claim they might have to compensation for work thereunder in excess of eight hours a day.
    Thereupon a meeting of the carriers was held to consider and discuss the matter. One of their number presided, and at the meeting the result of their conference was the adoption of the
    “San Francisco, Cal., Sept. 4,1888.
    
    “Whereas we, the letter carriers of the San Francisco post-office, realizing the difficulties in the way of making a schedule time for deliveries and collections under the new eight (8) hour law, and being aware of the fact that our work under the present schedule does not exceed eight (8) hours, and feeling that the new schedule (recently issued to go into effect Sept. 5,1888) will work a hardship on us and will not give as satisfactory a service to the public as the present schedule: Therefore, be it
    
      11 Resolved, That we do respectfully request Dr. Wm. J. Bryan, postmaster of San Francisco, Cal., to allow the present schedule to remain in force, we hereby waiving all claim to any pay for overtime that might appear to be our due.”
    The language of the preamble and resolution was suggested by the assistant postmaster and reduced to writing by one of the carriers. Five copies were made, one of which was sent to the main post-office and one each to the branch offices, to be signed by the carriers who desired to do so. With the exception of a few, who were absent or sick, all the carriers, and particularly all the claimants herein, voluntarily, and for their mutual interest and advantage, signed the resolution after the same had been read by or made known to them.
    IV. The carriers, claimants herein, having signed the resolution as aforesaid, the postmaster did not put the said new schedule into force, but permitted the carriers, claimants herein, to continue service under the old schedule then in force, as by them requested.
    Whatever service was performed by the claimants in excess of eight hours a da,y was served under said old schedule after they had signed the resolution “waiving all claim to any pay” therefor.
    Whatever changes were made in said old schedule after the adoption and signing of the resolution as aforesaid related to the hours of delivery to meet the time of the arrival of mail trains, the same as it had theretofore been changed, of which the carriers — claimants herein — were aware, but such changes did not affect or increase the amount of work to be done by them, and no complaint or objection appears to have been made thereto.
    
      Y. The commissioner to whom the several claims herein were referred to ascertain the facts, filed his report in relation thereto December 20,1896, showing, among other things, that the claimants had, during the period subsequent to signing said resolution and while said old schedule was in force as aforesaid, performed service in excess of eight hours a day, and in respect of such excess of time said commissioner annexes to this report a list of the names of the claimants herein, showing the number of hours he recommends as having been served by each claimant in excess of eight- hours a day, together with the amount due each therefor, which report as to the facts stated is hereby adopted and made a part of these findings.
    But whether the time so reported in excess of eight hours a day was actual service under the direction of the pbstmaster, or what portion of said overtime, if any, was between deliveries, does not appear. The defendants, however, by their Assistant Attorney-General, concede that the amount of overtime so reported by the commissioner “shall be accepted as prima facie correct.”
    
      Messrs. George A. and William B. King for the claimants:
    The very fact that such a question as this can be raised at all goes far to demonstrate the wisdom of the rule of public policy laid down by the authorities against permitting official compensation to be waived. In a country where there is a keen competition for public office there are probably few positions of emolument under either the Federal or State governments which could not readily be filled by- the appointing power at salaries less than those prescribed by law'. Yet the demoralization incident to allowing such bargains to be made by the appointing officers with those whom they put in office, involving as but one of its objectionable features the refusal on grounds of self-respect to take part in such a competition of the very persons whose qualifications would render them an ornament to the public service, would far outweigh any saving in dollars and cents which such methods would afford to the public treasury. The claims before the court in these cases are claims for a part of the official compensation attached by law to the office of letter carrier.
    The power expressly granted to the Postmaster-General of fixing the salary of a letter carrier at his discretion, but not to exceed $800 a year, as well as the implied power to employ the carrier as many hours a day as he might think proper without any compensation beyond his annual salary have both been abrogated by express legislative enactment. Congress has thus by the two acts of 1887 and 1888 clearly expressed its will that the compensation of letter carriers shall be fixed by express legislative enactment, and shall not be subject in any degree to the discretion even of the Postmaster-General, much less of the local officers of the post-office. The statutory compensation, therefore, of each of the carriers whose claims are involved in the present proceedings consists of two parts.
    The distinction between claims “ founded upon any law of Congress” and those founded upon “any contract, expressed or implied,” is recognized in the acts defining the jurisdiction of this court. (Revised Statutes, § 1059; act March 3,1887, § 1, 1 Supp. R. S., 559.) A claim for official salary is one belonging wholly to the class of claims founded upon a law of Congress. It is not a subject of contract with the Government, or with any officer thereof. The law attaches the salary to the office, and any lawful incumbent of the office may recover the salary, simply because the law makes it an incident of the office,' and not because there is any contract in the case.
    Both sides of the principle are illustrated in the decisions of this court by the contrasted cases of Sleigh v. United States (9 O. Cls. R., 369) and Homero v. United States (24 O. Cls. R., 331). In the former it was adjudged (p. 375) that “the incumbent of an office is prima facie entitled to the lawful compensation thereof so long as he holds the office, though he may be disabled by disease or bodily injury from performing its duties.” In the latter, payment of salary was denied to an officer holding over after the expiration of his term, although remaining under the responsibilities and faithfully discharging tlie duties of Ms position. The decision in each case would have been the exact reverse if rendered on principles applicable to contracts for services between private parties. (2 Ohitty on Contracts, 11 American ed., 843, 854; United States v. McLean, 95 U. S. R., 750; Williamson v. United, States, 23 Wall., 411.)
    In Fisher v. United States (15 O. Ols. R., 323) this court, in a suit for salary by an officer who had given a receipt in full for a reduced.amount, said, by the late Chief Justice Richardson (p. 330):
    “We give no force to the fact that the claimant received the reduced rate without objection.' He was entitled to the compensation which the law attached to his office, and the defendant’s liability could not be discharged by paying a less sum, even though he had executed a receipt in full.”
    Again, in Adams v. United States (20 C. Ols. R., 115), the court said (p. 117):
    “The law creates the office, prescribes its duties, and fixes the compensation. The selection of the officer is left to the collector and Secretary. The appointing power has no control, beyond the limits of the statute, over the compensation, either to increase or diminish it. This has been substantially decided in many cases. (Converse v. United States, 21 Howard, 403; United States v. Williamson, 23 Wall. 411; United States v. Lawson, 101 U. S. R., 164; United States v. Ellsworth, 101 IT. S. R., 170; Hall v. Wisconsin, 103 U. S. R., 5; Allstaedt’s Case, 3 0.01s. R.,284; Patton’s Case,7 O. Cls.R.,362; Sleighv. United States, 9 O. Ols. R., 369; Bradford v. United States, 20 O. Ols. R., 118.)”
    The same principle was stated with somewhat greater amplification by the Court of Appeals of New York in Fitzsimmons v. City of Brooklyn, 102 N. Y., 536; People ex rel. v. Board of Police, 75 N. Y., 38; Hewitt v. White, 78 Mich., 117.
    Judge Story, in his great work on Equity Jurisprudence, discusses the question whether salaries may be assigned, and his language is very applicable to the question of waiver of salaries. (2 Story’s Equity'Jurisprudence, § 1040 e.) See Shannon v. Bruner (36 Fed. Rep., 146,147).
    The general principle rendering any agreement dealing with the fees of public officers in advance of the rendition of the services contrary to public policy and void is well stated in the case of the Corporation of Liverpool v. Wright (L. J. Eq. 28 N. S., p. 868). Corporation of Lublin v. Hayes (10 Irish R. O. L., 226) holds that an agreement to accept by way of a fixed salary a sura less than tbe fees allowed the office of marshal of the city of Dublin and registrar of the pawnbrokers of Ireland and to pay the difference into the treasury is void as against public policy, following Liverpool v. Wright.
    
    The principle only applies with increased force to claims like the present for extra compensation given by statute in express consideration of services in excess of the ordinary duties of the office. This view was taken in a case decided in the last century, Parsons v. Thompson (1JEL Blacks., 323).
    It has beeu held that where a notary public, in consideration of receiving the whole patronage of a corporation in his line of business, agreed to accept in full payment one-half of the regular fee fixed by law, the agreement was void, and the plaintiff entitled to judgment in full at the regular legal rates for services performed. (Ohio National Bank v. Hopkins, 8 App. D. 0., 146.)
    There are a number of decisions of the courts of various States to the same effect.
    In the cases of Bliss v. Lawrence and Bliss v. Gardener (58 N. Y., 442) is found a rather complete review of both American and English decisions on the question of the right of a public officer to assign a part of the future salary of his office, it being held by Justice Johnson, who delivered an exhaustive opinion, that an assignment by a public officer of his future salary is contrary to public policy and void. In these cases the plaintiff' had assigned a month’s salary in advance at a discount of 10 per cent, and, after collecting the whole of the salary himself, the assignees brought suit to recover their part.
    In Kehn v. State of New York (93 N. Y., 291) it was held that a person employed by the State might sue for and recover his salary fixed by statute, though the same had been reduced by the officer employing him and with his apparent acquiescence. (Riley v. Mayor of Neio York, 96 N. Y., 331, 339.)
    The same doctrine was announced by the Supreme Court of Iowa in Hawkeye Insurance Go. v. Brainard (72 Iowa, 132,133).
    This case was followed in Purdy v. Independence (75 Iowa, 356), where a city treasurer undertook to bind himself by contract with the city council to perform certain duties of his office for a less compensation than was provided by the'ordinances in force when he entered upon liis office. Held, that such contract is no bar after the services have been rendered to a recovery of the compensation provided by the ordinance.
    
      In the present case tlie postmaster went but a single step further than he did in the Charleston Case and secured the signatures of the carriers to an express waiver of pay for overtime. Can this fact vary the legal liability of the Government under the statute1?
    Were the court disposed.in any case to concede the validity of such a waiver as this, the circumstances disclosed by the evidence in the present case would absolutely forbid the enforcement of any such agreement in a court undertaking to administer justice.
    Courts of equity always view with a jealous eye all contracts between persons occupying relations of trust or dependence one on the other.
    The relations between the head of a large post-office and those-employed under him are of an exceedingly delicate character. Their every movement is subjected to his closest official scrutiny. It is not too much to say that their very official life is held at his mercy'.
    To make the legal rights of parties, which Congress had supposed it had defined by unmistakable provisions of law, subject to be varied by accidents would render the law, no longer, as Coke called it, “The perfection of reason,” but would turn it into an unworthy game of chance.
    
      Mr. GeorgeH. Gorman (with whom was Mr. Assistant Attorney■ General Pradt) for the defendants:
    1. The proposed new schedule was one arranged upon the principle of laying off the carriers between deliveries (commonly called swings), so that, although the hours of duty would have extended over a greater period of time, their actual work would not have exceeded eight hours, and they would not have been entitled to pay for this time between deliveries. This has all been decided by this court (King v. United States, 32 0. 01s. It., 234) and by the Circuit Court of Appeals for the fifth circuit (United States v. Langston, No. 619, in said court, recently decided but not yet reported).
    Nor was the adoption of such a schedule in anywise an evasion of the act. As was said by this court in DriseolVs Case -(13 C. Cls. R., 15): .-
    “The legal execution of a right in such form as not to come within the prohibition of a statute [in this case the eight-hour law] is not an evasion of the statute.”
    
      It follows, therefore, that the postmaster had the legal right to adopt the new schedule, and that had it been enforced these claims would never have arisen.
    2. The carriers had the right to waive the provisions of the eight-hour law intended for their benefit.
    This statement is so axiomatic as to scarcely need the citation of authorities. As was said by Mr. Justice Strong, in Shutte v. Thompson (15 Wall., 151,159): “A party may waive any provision, either of a contract or a statute, intended for his benefit.” This, of course, is subject to the well-known conditions that the waiver must be a voluntary relinquishment of a known right (Home v. Ins. Go., 32 Conn., 40) • it must be made by a person who is sui juris (Garr v. Branch, 85 Va., 597); it must be with a knowledge and intent to waive (Montague y. Massey, 76 Ya., 3.14); it must (as held by some courts) be upon consideration or else operate by way of estoppel (Bel-knap v. Bender, 75 N.Y.,453; liiphy v. Ins. Go., 30 N.Y.,164; but see Ins. Go. v. Norton, 96 U. S., 234, and Bishop on Oont., sec. 806, where the contrary is held; see to same effect Titus v. Ins. Go., 81 N. Y., 410; Stackhouse v. Barnston, 10 Yes. Jr., 466, per Sir W. Grant), and it must not contravene the principles of pubiic policy, such as the defense of usury (Maeabee v. Grozier, 22 Hun., 62) or the ratification of a forgery (Shisler v. Van Dyke, 92 Pa. State, 447), and the like. Subject only to these conditions, the right to waive any provision of a law or contract, or constitution even, affecting his property-or alienable rights, is absolute, and will always be enforced by the courts. (Phiefe v. Ulmer, 45 N. Y., 104; White v. Ins. Go., 4 Dill. (U. S.), 183; Toombs v. B. B., 18 Barb. (N. Y.), 585; JTur-guson y. Landrum, 5 Bush. (Ky.), 350; Shutte v. Thompson, 15 Wall., 151, 159.) Such, for example, as the waiving of the benefit of one’s homestead exemptions (Moss v. Jenkins, Sup. Ct. Ind., 1897; 45 Id. E. Rep., 789, and the many cases there cited), the waiver of a mechanic’s lien (Barnett v. Stephens, 45 N. E. Rep., 485, and cases cited), and statutory liens of all sorts, the waiver of dower, of the statute of limitations, and so forth.
    The evidence in this case establishes beyond all peradventure that the waiver in this case was a voluntary relinquishment of a well known right; that it was made by a person sui iuris; that it was made with a deliberate knowledge and intent to waive; that it was given upon a lawful, valuable, and sufficient consideration (and also that it operates by way of estoppel), and that it does not contravene any principle of public policy.
    The salaries of letter carriers are fixed by law, and no carrier lias waived it or contracted about it, nor has it been decreased or interfered with in any way by anyone. This case has nothing to do with official salaries. The statute provides that if a carrier be employed more than eight hours he shall be paid extra. The postmaster had been instructed not to employ him, and the postmaster arranged his schedule so as to make him do his work in eight hours. If that schedule had been enforced no such claim as this would ever have arisen. It would have failed under the doctrine of King's Oase (32 C. Gis. R., 234). But the new schedule was disliked by the carrier, and for purposes of his own convenience, pleasure, advantage, and profit he asked that the old schedule be continued, and to induce the postmaster to accede to his wish waived his claim for overtime.
    The doctrine of public policy, in the law, is the prohibition of something which would be injurious to the public or against the public good (Kdgerton v. Broionlow, 8 H. L., Cas. 1); and although it is constantly changing and is not the same at different periods (.Davies v. Davies, 36 Chy. Div., 364); and although it is u a very unruly horse, and once you get astride it you never know where it will carry you” (Richardson v. Hellish, 2 Bing., 229, 9 E. O. L., 391, per Burrough, J.), yet, despite this changefulness and this unruliness, I venture to suggest that there will not be found in this day and generation a judge who will hold it to be injurious to the public or against the public good to require a man to be honest, to keep his solemn contracts, and not to commit a fraud.
    3. The postmaster had the right to accept this waiver from the carriers and to rely upon it for the prevention of claims for overtime.
    This proposition becomes self-evident when the facts of the case are borne in mind. No considerations of “ public policy ” intervened to prevent his acceptance of it. It is a clear case of contract, entered into without any undue influence, without any fraud, duress, compulsion, or even persuasion, founded upon a valuable and lawful consideration flowing from the Government to the carriers, whereby the Government was induced to relinquish its position of security, and the nonen-forcement of which at this time would not only be contrary to good morals, but would result in permitting the carriers to consummate a fraud against the Government.
    Wherever the courts have been called upon to determine the rights, duties, and obligations of the parties under an eight-hour statute, it has been universally held, both by the State and the Federal courts, that such statutes do not in any wise restrict the free will of the person whom the statute was intended to benefit or of the person who employs him, and that, notwithstanding such statute, the parties may agree upon any number of hours and any rate of compensation, the statute being intended to apply only in the absence of contractual stipulations to the contrary. Thus, it has been held, that although a statute restricted the hours for Government laborers to eight, yet the agent of the Government and the laborer might lawfully contract for twelve at the same rate of pay. (United States v. Martin, 94 U. S. R., 400. To same effect, see Harrison v. United States, 26 O. Gis. R., 259; Averill v. United States, 14 O. Cls. R., 200,204,206.) And such has been the ruling of the State courts upon similar statutes. (See Luslce v. Hotchkiss, 37 Conn., 219, 220, 221; Brooks v. Cotton, 48 N. H., 50; McCarthy v. Mayor, 96 N. Y., 1; Sctotrrv. Savigny, 85 Mich., 144; Grissell v. Noel, 9 Ind. App., 251,258,261; Helphenstine v. Hartig, 5 Ind. App., 172. See United States v. Garlinger, U. S. Supreme Court, Oct. term, 1897, No. 166, decided Feb. 21,1898.)
   Peelle, J.,

delivered the opinion of the court:

The claimants, letter carriers in the city of San Francisco, seek to recover extra compensation for services claimed to have been rendered by them in excess of eight hours a day, under the act May 24, 1888 (1 Supp. R-. S., 587), which reads:

“That hereafter eight hours shall constitute a day’s work for letter carriers in cities or postal districts connected therewith, for which they shall receive the same pay as is now paid as for a day’s work of a greater number of hours. If any let ter carrier is employed a greater number of hours per day than eight he sh'all be paid extra for the same in proportion to the salary now fixed by law.”

The facts pertaining to the overtime are not sufficiently found or reported by the commissioner to enable the court to determine as a conclusion of law whether the claimants were “employed” during such overtime within the meaning of the act as construed in the King Case (32 C. Cls. R., 234), but inasmuch as the Assistant Attorney-General concedes that the amount of overtime so reported by the commissioner “shall be accepted as prima facie correct,” and there is nothing to show the contrary, the court will, for the purpose of this case, assume that the findings of the commissioner in respect of such overtime is “prima facie correct.”

At the time of the passage of the act upon which this action is predicated the claimants were performing their respective duties under a schedule for the collection and delivery of mail adopted by the postmaster at San Francisco, and while thus engaged the Postmaster-General issued the circular letter of instruction set forth in the findings.

In conformity with the instructions given, the postmaster prepared a new schedule to go into effect September 5, 1888, whereby the service to be performed by the carriers was not to exceed eight hours per day.

They were not satisfied with the new schedule, because it extended their service over a greater number of hours, and because they could not utilize the intervals between deliveries at their homes or to their advantage and satisfaction otherwise so well as they could under the old schedule, and the/ so informed the assistant postmaster and requested that the old schedule be continued in force, but they were informed by him that under the Postmaster-General’s instructions it could not be done unless they would waive whatever claim they might have to extra pay for work thereunder in excess of eight hours per day.

A meeting of the carriers, claimants herein, followed, and after selecting one of the number to preside, they proceeded to consider the matters involved, and as a result they adopted the following:

u San Francisco, Gal., Sept. 4,188S.
“Whereas we, the letter carriers of the San Francisco post-office, realizing the difficulties in the way of making a schedule time for deliveries aud collections under the new eight (8) hour law, and being aware of the fact that our work under the present schedule does not exceed eight (8) hours, and feeling that the new schedule (recently issued, to go into effect Sept. 5, 1888) will work a hardship on us and will not give as satisfactory a service to the public as the present schedule: Therefore be it
“Resolved, That we do respectfully request Dr.- Wm. J. Bryan, postmaster of San Francisco, Gal., to allow the present schedule to remain in force, we hereby waiving all claim to any pay for overtime that .might appear to be our due.”

Copies of the resolution were sent to the main post-office and to each of the branch offices for the signatures of the carriers, which were voluntarily affixed, in consequence of which the old schedule was continued in force.

Under that state of facts the defendants contend that the claimants voluntarily waived any claim that might otherwise have accrued to them for services rendered in excess of eight hours a day, and that therefore they are estopped from asserting any claim to extra pay for services so rendered.

The claimants’ contention is that the waiver was of official compensation or salary fixed by law, therefore against public policy and void.

Under Eevised Statutes, section 3866, the salary of letter carriers was fixed by the Postmaster-General within the maximum limits there specified, but by the act of January 3, 1887, section 2 (1 Supp. E. S., 519), it was provided:

“That there may be in all cities which contain a population of seventy-five thousand or more three classes of letter carriers, as follows: Carriers of the first class, whose salaries shall be one thousand dollars per annum; of the second class, whose salaries shall be eight hundred dollars per annum, and of the third class, whose salaries shall be six hundred dollars per annum.” . -

As the census reports show that at the time of the passage of the act San Francisco contained, and has ever since, a population of more than 75,000, the act applies to the letter carriers of that city, as well as to all other cities having a like population.

There is no language in the act excepting San Francisco from its operation, and it seems clear to us that Congress intended thereby to repeal section 3866, and we so hold.

That act was followed by the one fixing eight hours as a day’s work for letter carriers and providing that if they be “employed a greater number of hours per day than eight” they “shall be paid extra for the same,” and there can be no question but what this act applies equally to San Francisco with other cities.

The statute cited fixes the annual salaries of letter carriers, and by the act May 24,1888 (supra), their services therefor are based on eight hours for a day’s work, during which period they are presumed to be engaged in postal duties, whether actively so or not, but for any time in excess of eight hours a day they are not entitled to extra pay therefor unless they be “employed” — i. e., “engaged inactive postal duties,” as held in King’s Case (32 C. Cls. R., 234-244) — and they can not be so “employed” without the authority of the postmaster, who is “the agent of the United States to direct the employment,” as held in the case of the United States v. Post (148 U. S. R., 124-133).

The act therefore leaves it to the postmaster, as the agent of the Government, to say whether he will “employ” a carrier to work more than eight hours a day, and if he does so employ him, or if a carrier in good faith performs such postal duties with the knowledge and consent of. the postmaster, a contract of employment therefor will be presumed. {Laurey's Case, 32 C. Cls. R., 259-265.)

Applying the facts found to what we'have said, and particularly in connection with the recital in the preamble to the resolution that the carriers’ “work under the present schedule does not exceed eight hours,” it is by no means clear that the postmaster had any knowledge that they were “engaged in active postal duties” in excess of eight hours a day, much less that he gave his consent thereto.

But for the purpose of this case, and because the overtime reported by the commissioner is conceded to be “prima facie correct,” as before stated, we will assume that such overtime was made by the carriers with the knowledge of the postmaster, and that he permitted the same only because of their written agreement to waive all claim to extra pay therefor.

The resolution was in legal effect an agreement on the part of the carriers signing the same that, in consideration of the postmaster continuing in force the old schedule, they would waive all claim to extra pay for any work they might thereafter do thereunder in excess of eight hours a day.

In the construction of the act June 25,1868 (15 Stat. L., 77), now Revised Statutes, section 3738, providing that “ eight hours shall constitute a day’s work for all laborers, workmen, and mechanics who may be employed by or on behalf of the Government of the United States,” the Supreme Court, in the case of United States v. Martin (94 U. S., 400, affirming decision of this court, 10 C. Cls. R., 276), held that the act was “chiefly as in the nature of a direction from a principal to his agent that eight hours is deemed to be a proper length of time for a day’s labor, and that his contracts shall be based on that theory. It is a matter between the principal and his agent, in which a third party has no interest.” And further, “that contracts fixing or giving a different length of time as the day’s work are legal and binding’ upon the parties making them.” The rule there laid down was applied in AveriWs Case (14 C. Cls. R., 200-204).

But the act fixing eight hours as a day’s work for letter carriers differs from the act thus construed in this, that if a carrier be “ employed a greater number of hours per day than eight he shall be paid extra for the same in proportion to the salary now fixed by law.” So that, as the number of hours constituting a day’s work as well as the salary therefor are both fixed by statute, they are not the subject of contract, hence a postmaster has no authority to increase or diminish either.

Nor has he the authority to employ a carrier to work more than eight hours a day, except as the same may be required by the public service, and when so employed the carrier is entitled to be paid extra therefor as provided by statute, unless he has done some act which estops him therefrom.

As the agreement to waive all claim to extra pay for overtime did not in any way affect the claimants’ salaries, we need not consider the question presented by their counsel in relation thereto further than to say that, conceding that the claimants could not by a written waiver divest themselves of their right to their official salaries fixed by statute, it does not follow that the same rule would apply to extra pay for overtime dependent upon a contract of employment by the postmaster.

In other words, their right to such salaries depends upon their appointment and qualification for the discharge of the duties pertaining to their respective offices, which is wholly a matter of statute; while their right to extra pay for overtime depends upon a contract of employment by the postmaster, which is prerequisite thereto, and, being a matter of contract, they could at the time and as part consideration therefor waive all claim thereto which might otherwise have accrued to them.

It was not only the right but the duty of the postmaster to arrange all schedules for the collection and delivery of mails, and to so arrange them as to conform, to the instructions of the Postmaster-General; and this the findings show he had done, and was on the eve of putting the same into force so that the carriers would thereby have been enabled to perform their postal duties within eight hours each day. But to induce the postmaster to continue in force the old schedule, which was-more advantageous or agreeable to them than the new, they voluntarily agreed in writing to waive all claim to extra pay for any work they might do thereunder in'excess of eight hours a day.

The schedule thus continued in force was subject to be changed to conform to the arrival of mail trains as it had been theretofore, of which the claimants were aware, but such changes did not affect or increase their work thereunder, and in the absence of any showing to the contrary they must be presumed to have contracted with reference thereto.

The parties to the agreement did not thereby contemplate that work in excess of eight hours a day would be necessary under the old schedule. On the contrary, it was recited in the agreement that they were “ aware of the fact that our work under the present (old) schedule does not exceed eight hours” a day.

The claimants were bound to know the law in respect of their rights; but, aside from presumed knowledge of their rights under the statute, they were informed that under the instructions of the Postmaster-General they could not continue work under the old schedule unless they would waive any claim to extra pay that might otherwise accrue to them for overtime; and so when they signed the agreement in consideration that the postmaster would continue in force the old schedule, they thereby intentionally relinquished a known right under the statute, and this they may legally do. (Bishop on Contracts (ed. 1887), sec. 792; White v. Con't. Mutual Life Ins. Co., 4 Dill. (U. S.), 183; Shute v. Thompson, 15 Wall., 151, 159; Tooms v. Rochester, etc., 18 Barb. (N. Y.), 585.)

Bishop on Contracts {supra) lays down the rule thus:

“Waiver is where one in possession of any right, whether conferred by law or contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right or of his intention to rely upon it. Therefore he is said to have waived it, and he is precluded from claiming anything by reason of it afterwards.”

As the law conferred upon the carriers a personal benefit only in the event of their employment, they could waive the same without injury to others or without affecting the public interest, and, having voluntarily signed the agreement waiving all claim to extra pay for such overtime, they are estopped from asserting any claim thereto, and their several petitions are therefore dismissed.  