
    MARCOPOLO M. RUSH ET AL., Letter Carriers in San Francisco, v. THE UNITED STATES.
    [No. 17696.
    Decided March 5, 1900.]
    
      On the clwima/nts1 Motion. ■
    
    The claimants move for a new trial on the ground that the court erred in finding that’ they had voluntarily signed the waiver which was successfully used as a defense, and in holding that it was binding on them, in derogation of their right to extra pay under the eight-hour law. It appears that the Postmaster-General issued a circular letter requiring postmaster's “to reorganize the free-delivery service” so as to comply with the provisions of the eight-hour law. The postmaster at San Francisco arranged a schedule in accordance with the circular. The carriers were not satisfied, and requested that the old schedule remain in force. They were told that this would be done if they would waive claims for service in excess of eight hours. The case was dismissed on the ground that the right-to extra pay under the act depended on a contract with the postmaster and that extra pay formed no part of their official salary and could be waived (33 O. Cls. B., 417). The claimants contend that their signatures to the waiver were not voluntary, and that they signed through fear of losing their places, or on the advice of their immediate superior officers.
    
      I.Less evidence is required to establish compulsion or duress when exerted by one clothed with official authority than would be required between private persons.
    II.The compensation of a letter carrier for services in excess of eight hours a day is fixed by statute and not by contract, and a postmaster has no authority to increase or diminish it or to take it away, even though the carriers consent to serve without compensation.
    III.Extra pay fixed by statute is a measure of compensation for services rendered, and is designed to secure efficiency in the public service; to diminish or take it away would be contrary to public policy.
    
      The Reporters' statement of the case:
    The grounds for the motion appear sufficiently in the opinion of the court.
    
      Messrs. George A. and William B. King for the claimants, for the motion:
    In Simpson v. Neio York Rubber Co., 80 Hun., 415, the Supreme Court of New York held that the statute for the protection of laborers by requiring cogs, gearing, etc., to be properly guarded, was one of which the laborer could not waive the benefit. The court said (p. 417):
    “But is there no question of public policy involved here? To our mind there is, and that public policy should induce us to hold, unless a contraiy doctrine is settled by authority, that this statutory protection can not be waived. Our notion of government has confined State interference with the freedom of individual action within narrow limits, but such interference has never been wholly prohibited. Experience has shown that in some matters persons must be protected from their own imprudence.”
    This extra pay, under the act of 1888, is a part of the carrier’s official compensation, differing only from his fixed annual salary in the fact that, instead of being constant, it is occasional and intermittent, depending upon the accident of his employment from time to time in excess of eight hours a day. It may here be remarked that even the annual salary of the letter carrier is not a fixed and absolute sum, payable to him at all events, whether on duty or not. He is only allowed fifteen days’ vacation each year with salary, and when absent, on occasions other than that of his annual vacation a substitute is placed on bis route and receives bis pay. (Acts August 2, 1882, June 27, 1884, 1 Supp. R. S., 363, 446.) Hence, correlative with bis right to extra pay, when working in excess of eight hours a day, is his liability to deprivation of pay when not performing in full his statutory eight hours of service. But the fact that the extra pay is not constant and arises only on the occasion of his being employed in excess of eight hours a day does not make it in any respect the less an official compensation.
    In this particular it closely resembles official fees, which differ from salary in being payable' not in a uniform sum at fixed times, but in smaller amounts in accordance Avith the particular amount of services rendered from time to time. This, however, has never been held to take it out of the rule that an agreement to waive official compensation in adAmnee of the rendition of the services is Aroid. The cases have been fully cited in our brief, and it is believed that none can be found to sustain a contrary proposition.
    The act of 1888, thus being a salary statute giving the letter carriers extra salary for any work lawfully done by them in the course of employment as letter carriers in excess of eight hours a day, and not being an act making-or authorizing any contract with the letter carrier, either express or implied, all the decisions of the courts holding a waiver of official compensation to be against public policy and void Avhen made in advance of the rendition of services under the contract become applicable in their full force to the case. The decisions, so far as directly applicable to this point, we now take leave to recaxaitulate and summarize. (Corporation of Liverpool x. Wright, L. J. Eq. 28, N. S., p. 868.; Corporation of Biiblin V. Hayes, 10 Irish R. C. L., 229] Parsons v. Thompson, 1 Henry Blaekstone, 323; Ohio National JBank v. Ilopkwis, 8 D. C. App., 146; People ex rel. v. Board of Police, 75 N. Y., 38; Kehn v. State of New York, 93 N. Y., 291; Riley x. Mayor of New YorJe, 96 N. Y., 331, 339; Fitzsimmons v. City of Brooklyn, 102 N. Y., 536; Ilawkeye Insurance Co. v. Brainard, 72 Iowa, 132, 133; Oilman v. Bes Momes v. By. Co., 40 Iowa, 200; McCónltey x. Chapman, 58 id., 281; Purdy x. Independence, ' 75 Iowa, 356.)
    Many of the above cases did not involve fixed annual or monthly salaries, but were, like the present, cases of occa sional services rendered under a law regulating the compensation for such services at some stated sum either by the hour or by the character of the services rendered; while one of them was, like the present case, a claim for extra pay. Yet in all of them the same principle was alike applied, and it was held that, being a part of the statutory remuneration of the officer, the statute had put it out of his power to deal with it by contract, whether operating by way of assignment, waiver, or otherwise, in advance of the rendition of the services.
    While the exact question presented in these cases has not in any previous instance been before this court, there have been many cases in which the substantial principle involved has been decided. (Fisher v. United States, 15 C. Cls., 323.) In Adams v. United States, 20 C. Cls., 115, it is said:
    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, 463; United States v. Williamson, 23 Wall., 411; United Statesv. Lawson, 101U. S. R, 164; United Statesv. Ellsworth, 101 U.S. R, 170; LLallv. Wisconsin, 103 U. S. R,.5; Allstaedt's Case, 3C. Cls. R, 284; Patton!s Case, 7 C. Cls. R, 362; Sleigh v. United States, 9 C. Cls. R, 369; Fisher's Case, 15 C. Cls., 323; Bost/wiclav. United States, 94 U. S. R, 53; Bradford v. United States, 20 C. Cls., 118.”)
    The Supreme Court, in the case of Williamson v. United States, 10 C. Cls., 50, said (p. 62):
    “It is not in the power of the executive department or 'any branch of it to reduce the pay of an officer of the Army. The regulation of the compensation of the officers of the Army belongs to the legislative department of the Government.”
    Finally, in the case of United States v. McLean, 95 U. S., 750, the application of any theory of contract to a question of Government salaries was denied in this language (p. 751):
    “ His claim rests not upon any contract with the Government, either express or implied, but upon acts of Congress providing for a regulation of the salaries of deputy postmasters.”
    
      It only needs to be admitted that the extra pay provided by the act of 1888 is a part of the carrier’s official compensation for all these authorities to become applicable.
    It has been conceded by the court 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.” If the position that we have taken be sound, that the extra pay granted bjr the act of 1888 for overtime is a part of the carrier’s official compensation as truly as the fixed annual salary granted by the act of 1887, it necessarily follows that it is no more the subject of contract than was the annual salary itself.
    The necessity of enforcing such a rule was never more apparent than in the present case. There is not a post-office in .the country at which, with an Administration in power hostile to the execution of the eight-hour law, it would' not be possible to force the carriers into working ten, twelve, or any other number of hours per day and induce a written waiver of their right to pay for overtime, and that, too, without a particle more pressure exercised upon them than such as is disclosed in the present case. A meeting called at the instance of the officers of the post-office to consider the question; an assistant postmaster present and, if not actually presiding over the meeting, activety interfering therein and correcting any statements of any of the participants in the meeting deemed by him derogatory to the respect due the superior officials of the service; a vote put through, the exact nature of which is not known and can not be recalled by anyone; a paper drawn up in the form of a resolution, though concededly not adopted as such at the meeting, and the language chosen and framed by the assistant postmaster; that paper handed to one of the carriers, whose regular duties are those of a clerk, with directions to engross it in his own handwriting; the paper then placed on the desk at the main office at the same place and in the same manner that orders are generally placed; the same paper sent to the stations with directions to get the signatures of the carriers; carriers objecting, but told by their superintendents that they must sign or lose their places, and one who was sent to the main office being told by the superintendent significantly, “Satisfy yourself;” all these proceedings are .capable of being repeated universally and equally capable of paralyzing the administration of the entire eight-hour law. Surely it was not designed by Congress when it passed this act that whether it should be enforced or not was to depend on whether the Administration or the local officials were desirous of carrying it out or not, or were friendly to its spirit. It was designed as a general measure of legislation, applicable to the whole United States, applicable as well at post-offices where the administration did not understand the purpose of the law, as was the case at this distant office, and acted upon their own discretion without consultation with the Post-Office Department, as at other offices where the local officials were more conscientious or more friendly to the enforcement of the law. Above all, it was never intended to allow letter carriers to be fettei’ed for years by a paper like this, at best unadvisedly signed and without full knowledge of their rights under the law.
    The case at bar is emphatically one of those here alluded to as being of a character in which one party has by superiority of position to the other acquired such an ascendency over the latter as to practically obliberate the will of the latter and substitute that of the superior. It is a case of a sham petition by the inferior to the superior, representing in truth and in fact the will of the superior imposed upon the inferior. The mere fact that the evidence may not reach the point of establishing what constitutes in law undue influence is, upon the principle of the learned author just quoted, and amplified and supported by the authorities which he cites, quite sufficient to induce the courts'to hold as invalid any transaction whatever which tends to the disadvantage of the inferior. In this respect the facts speak for themselves more loudly than any words. The schedule under which the carriers were working, under which, no matter what its actual terms were, thejr in fact had to perform ten to ten and one-half hours of actual service; a new schedule proposed and discussed, under which the hours of actual service would nominally, at least, have been reduced to eight; a pretense, which upon the face of it must have been absolutely without foundation in fact, that the ten or ten and one-half hour schedule was actually more advantageous, more convenient, and more agreeable to the inferior than the eight-hour schedule; a petition falsely reciting what was known to all parties to be false, that the work under the old schedule did not exceed eight hours a day and requesting that it be allowed to remain in force; then adding a waiver of all pay for overtime, a clause absolutely inconsistent with the previous statement of the paper that the actual work then being performed by them did not exceed eight hours a day.
    
      Mr. George II. Gorman (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    Long prior to the preparation or the hearing of this cause this court had informed counsel that the theory for which they now contend was unsound, and had announced to them that the extra pay of a letter carrier was not a matter of statutory regulation, but was compensation to be paid upon the ordinary basis of a contract of employment. (Laury v. The United States, 32 C. Cls. R., 259—264; King v. The United States, 32 C. Cls. R., 234-242, 243.)
    And these enunciations from this court were followed with approval by the United States circuit court of appeals for the fifth circuit in the case of Langston v. The United States (85 Fed. Rep., 613), and, indeed, in the very first case of this sort the Supreme Court of the United States declared that the postmaster was the agent of the United States to direct the employment of these letter carriers (The United States v. Post, 148 U. S., 124-133). For years, therefore, before the preparation or trial of this cause counsel had been informed by all the courts before which this question had been considered that the theoiy for which they contend is not the true one, and that the matter of extra pay to carriers for extra work is purely a matter of contractual regulation. In the decision of this case the court merely followed the doctrines which it had enunciated in previous decisions, announcing no new doctrine, but merely applying the law as it had been announced by the court on two previous occasions.
    Since the decision in this case the question has been again considered by this court and the same doctrines reannounced. (Letter Carriers at Washington, P. C., v. The United States, No. 17901, decided June 13, 1898.)
    
      The learned counsel for the claimants labored most industriously during the time that this testimony was being taken to induce some witness to declare that these waivers for overtime which were signed by the carriers were promulgated in the shape of an “order” from the postmaster, and that the carriers signed them because they considered them to be an order. But the learned counsel signally failed in this attempt, and the difference between this instruction and the manner in which it was promulgated and that of an ordinary order from the postmaster is abundantly shown in the record.
    According to his contention, to be employed is simply to be engaged in the act of doing something, and therefore, in order to obtain extra pay from the United States, all the letter carrier has to do is to busy himself in some occupation connected with the postal service. It leaves out of view entirely the question of honesty of purpose and the question of the necessity for such employment and the question of the desire of the employer to have the employee do the service, and leaves the whole matter in the hands of the letter carriers; and if such a doctrine were to be announced, all the letter carrier would have to do would be to loaf upon his route and consume two or three times as many hours as was necessary for the performance of his work — to work more than eight hours a day without the knowledge or consent of the postmaster or any other agent or officer of the United States— and then, by merely showing this result, demand and receive from the United States the pro rata compensation provided for in the statute. As was said by the Supreme Court and repeated by this court in the decision of this case, the term “employed” means not only the doing of a thing but the being under contract or order’s to do it. And such is the meaning of the term as used in this act of May 24, and whole reams of argument can not alter a truth so self-evident. The letter-carrier force is divided into various classes by statute, and to each class is affixed an annual salary. Subsequent to the passage of this law it was enacted that hereafter eight hours shall constitute a day’s work for letter carriers; and to protect them against being required by the postal authorities to work more than eight hours a day, it was provided that if any letter carrier is employed more than eight hours per day be shall receive additional pro rata compensation for the excess over that time. That statute means precisely what it says, in terms so plain that the wayfaring man need not err in its construction, that if the letter carrier is employed— that is to say, if he is hired; if he is made use of — if he is required or instructed by the postmaster to work more than eight hours a day he shall be paid for it as the statute provides, and the word “employed” as there used means not only the act of rendering service, but also the instruction, the contract, the order, to pei’form the service.
    In addition to the argument made upon this point in my original brief and the authorities there cited, there is one other which, perhaps, I may call to the attention of the court, though it really seems as senseless a proceeding to invoke authorities to sustain a position so self-evident as it would be to use a telescope to discover the sun at midday. The case referred to is that of Mc Clusky v. Oromwell (11th N. Y., at p. 599).
    Counsel refer once more to the same old argument made in the original trial iu this cause, and which this court declared to be unsound, to wit, the contention that the pay for overtime was a part of the carrier’s official salary, and consequently could not be waived by him, because to do so would be to contravene a principle of public policy.
    This matter has already been thoroughly discussed, and the present argument of counsel, it seems to me, does not call for anj^ further dissertation upon the subject. This matter of extra pay for extra service is, in no sense, a part of the carrier’s official salary. It is entirety dehors to the statute, and has for its solo foundation the meeting of the exigency whereby, if the necessity of the postal service require it, the postmaster is authorized to employ the carrier for more than eight hours, and, providing that if he does do so, what the right of compensation shall be to the letter carrier. It does not contemplate that this money shall be paid to the letter carrier unless he is hired or employed by the postmaster in excess of his regular duties, and the fact of such hiring or employment is left entirety with the postmaster in the discharge of his official 'duties. This point was settled by this court in the King Case.
    
      So far as tbc contentions made and the authorities cited by counsel against the permissibility of waiving this salaiy, it is a complete answer to say that they have not waived any salary, that no one has contracted with them about their official salary, and the same has been regular^ paid to them at all times. If this were a case where letter carriers, whose salaries are fixed by law, say at $1,000 a year, had entered into a contract with the postmaster to do that work for $500 a year, and the Government was certain to enforce that agreement, then there might be some force to the argument of counsel; but there is no such case before this court. The salaries of letter carriers are fixed by law, and no carrier has waived it or contracted about it, nor has it been decreased or interfered with in any wise. This case has nothing to do with the official salaries. The statute provides that if a carrier be emploj’-ed more than eight hours he shall be paid extra. The postmaster at San Francisco has been instructed not to employ the carriers more than eight hours, and that postmaster had arranged a schedule so as to have the work of the carrier completed within the statutory time. If that schedule had been enforced, no such claim as' this could have arisen. It would have failed under the doctrine of King's Gase (32 C. Cls. R., 234). But the new schedule was disliked by the carriers, and for purposes of their own convenience, pleasure, advantage, and profit, they asked that the old schedule be continued, and in order to induce the postmaster to accede to their wishes, freely and voluntarily, and of their own motion, executed the waiver, which is the subject of this action. Hav- • ing done so, and having by their solemn promise in writing-induced an agent of the United States to recede from a position of absolute security against claims for overtime to one entirely dependent upon the good faith of the carrier, he now seeks to repudiate his promise, to violate his obligation, and to demand that which he has solemnly promised to forego; and when he sees himself about to be defeated bj- his own act, the zeal of his counsel is so great as to exhibit the hardihood of contending that the Government can not hold the carrier to his promise, because, forsooth, it would be against public policy.
    
      In answer to the contention that the waiver in this case was unauthorized by the Post-Office Department, it is scarcely necessary to call the court’s attention to the fact that this statement in the brief is nothing more than á bare assertion, without the slightest foundation of evidence to support it; but even if it were supported by evidence it would be entirely immaterial, inasmuch as no such authorization from the Post-Office Department is at all necessary to give validity to this instrument. The postmaster at any given city is the agent of the United States for the purpose of employing letter carriers, and while, as was stated by this court in the Charleston decision (Laurey v. The United States, 32 C. Cls. E., 259, at p. 265), “the postmaster was the agent of the Government to direct this service, but he was not the agent to direct such services without compensation to those performing them, without their consent,” yet when this consent is obtained in a voluntary written waiver, such as we have here in the case at bar, then it becomes a matter of agreement between the agent of the United States and the claimant carriers, and such agreement needs no authorization whatever from the Post-Office Department. As has already been shown in this brief, and as is pointed out in the opinion of the court, it is always permissible for a beneficiary under a statute to waive any provision thereof intended for his benefit; and while in cases like these the hands of a Government officer may be tied, so that he hath not power to grant, by contract, promise, or otherwise, anything beyond the measure of compensation specifically provided in the statute, yet the hands of the other contracting-parties are not tied, and it is entirely permissible for them to waive the benefits of a statute or to enter into a contract with an agent of the Government upon such terms and conditions and for such rate of compensation as they see fit to agree upon. Such contracts have been universally upheld in this court and in the Supreme Court; they do not contravene an}principle of public policy, and are in all respects lawful and valid. (United States v. Martin, 94 U. S., 400; United States v. Garlinger, 169 U. S., 316; Harrison v. The United States, 26 C. C., 259; Averill v. The United States, 14th C. C., 200, 204, 206; King v. The United States, 32 C. C., 234; Laurey v. The United States, id., 259.)
    
      But in addition it is to be remembered that this matter has long since become a fait accompli — it has become an executed contract, and it is now too late to inquire either into its consideration or into the authority of the agent who made it. An executed waiver or an executed contract follows the rule of all other executed instruments, and are good without consideration, so that, even if no return is made for it, it can ont be recalled. (Bishop on Contracts, sec. 81 and sec. 804; Lawrence v. Dale, 31th Vt., 594; Maxwell v. Graves, 59 Iowa, 613.)
    Having been silent when they ought to have spoken, the law will not permit them now to speak when they ought to be silent. Now that the contract has been executed and performed, and the position of the parties of the second part unalterably changed, whereby the rights of the Government can not now be protected, it is too late to inquire into the consideration of the instrument or the authority of the person to make it. If the carriers had informed the postmaster that they intended to claim for overtime under this old schedule, then undoubtedly the postmaster would have put into effect the new schedule which was formulated to go into effect on the 5th of September, 1888, whereby, by the adoption of the short-swing process, no overtime would have been made within the meaning of the eight-hour law, as defined by this court in the King case, and under which, of course, no claims against the Government could have arisen. Thus, by the silence of these carriers during all these years, and by their acquiescence in the conditions which obtained, they have robbed the Government of this element of securitjq and, having placed the defendants in a position where they can not now protect themselves, the plaintiffs can not now be heard to assert the rights which, by their conduct no less than by their written words, they have waived and abandoned.
   Peele, J.,

delivered the opinion of the court:

The questions presented for our decision arise on the claimants’ motion for a new trial, the material and substantial grounds of which are that the court erred in finding that the claimants had voluntarily signed the waiver which was interposed as a successful defense, and in holding said waiver binding upon them “in derogation of the right granted by statute to extra pay for hours employed in excess of eight per day.”

Judgment was rendered in the case, dismissing the petition, May 23,1898. (33 C. Cls. R., 417.)

The claimants, letter carriers in San Francisco, brought suit for services claimed to have been rendered by them in excess of eight hours a day, under the act of May 24,1888 (1 Sup. Rev. Stats., 587), which reads:

“Be it enacted, dec., That hereafter eight hours shall constitute a day’s work for letter carriei’s 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 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.”

The commissioner to whom the case was referred for investigation reported that certain overtime had been made by the claimants, and, in the absence of any proof offered to “vary the conclusions of the commissioner as to the amount of overtime made by any particular claimant or class of claimants,” it was agreed by the Assistant Attorney-General that the commissioner’s “findings on that subject shall be accepted as prima faoie correct.” We have no reason to doubt the correctness of the commissioner’s report in respect of the overtime so reported by him.

The substantial facts disclosed by the findings are that soon after the passage of the act referred to, and while the claimants were engaged in the performance of their duties under a schedule theretofore adopted by the postmaster at San Francisco, the Postmaster-General issued, or caused to be issued, May 29, 1888, a circular letter whereby postmasters were required to “reorganize the free-delivery service at all offices,” so as to comply with the provisions of the law referred to; and for that purpose they were directed, in case carriers were performing more than eight hours of actual labor per day, to so reorganize their respective force as not to exceed eight hours.

In conformity with the instructions of the Postmaster-General so given, the postmaster at San Francisco arranged a schedule, to go into effect September 5, 1888, whereby the service to be performed was not to exceed eight hours per day. The carriers were not satisfied with the new schedule for several reasons, set forth in Finding III, and they so informed the assistant postmaster, and at the same time requested that the old schedule be continued in force. They were informed that by reason of the instructions of the Postmaster-General that could not be done unless thejr would waive any claim that might accrue to them for services rendered thereunder in excess of eight hours per day.

To this they consented, and to effect the arrangement a meeting of the carriers was called, at, which the following resolution was passed:

“SaN FraNCIsco, Cal., Sept, k, 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

“Resol/oed, 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 due.”

The language of the preamble and resolution was suggested by the assistant postmaster and reduced to writing by one of the carriers.

With the exception of a few carriers who were absent from the meeting or sick, all of them signed the resolution thus passed, and being thus signed the old schedule was continued in force, so that whatever overtime was made by the claimants after September 1, 1888, was made under said old schedule after they had signed said resolution.

The theory upon which the case was dismissed was that the claimants’ right to extra pay under the act depended on a contract of employment by the postmaster, who was the agent of the Government to direct such service, and that therefore such extra pay formed no part of their official salary and could be waived, even though such right was conferred by law. (Bishop on Contracts [ed. of 1887, section 792].)

Thus viewing the case, the court held that-—

'‘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.”

The claimants contend that their signatures to the resolution aforesaid were not voluntary; that they, or some of them, were threatened with loss of place or suspension if they refused to sign, and therefore their signatures were obtained by official duress.

In respect of the signatures of the claimants to the resolution it is recited in Finding III that, “with the exception of a few who were absent or sick, all the carriers, and particularly all of the claimants herein, voluntarily and for their mutual interest and advantage signed the resolution after the «ame had been read by, or made known to, them.”

The question as to whether the resolution was voluntarily signed by the claimants or whether signed under official duress necessitates an examination of the evidence before the court at the time of the trial of the case and such newly discovered evidence offered by the claimants as may be material to the question involved.

We have carefully examined the testimony of the witnesses detailing the circumstances under which the resolution or waiver was signed, the substance of which is that they signed, some through fear of losing their places, others through fear of suspension, while others signed on the advice of their immediate superior officers at the several stations.

And while there is some testimony to the contrary, and some to the effect that no coercion was used, still the circumstances of the case tend to show that while there was not such duress as would in law be recognized between individuals on equal terms, yet the relation of the carrier to the postmaster was such that their signatures to the resolution may perhaps be regarded as haying been obtained under such circumstances as. tend to rebut the theory of a voluntaiy act.

In this respect, therefore, the findings do not fully disclose all the facts. But while that is true the circumstances under which the claimants signed the waiver can not be said to constitute such duress as would relieve them had the transaction been an ordinary one of contract between individuals, Was it as between them and the postmaster ?

In the case of Robertson v. Frank Brothers Co. (132 U. S. R., 17, 23), being an action to recover customs duties alleged to have been paid to avoid an onerous penalty, the court, speaking by Mr. Justice Bradley, said: “When such duress is exerted under circumstances sufficient to influence the apprehensions and conduct of a prudent business man, payment of money wrongfully induced thereby ought not be regarded as voluntary. But the circumstances of the case are always to be taken into consideration. When the duress has been exerted by one clothed with official authority, or exercising a public employment, less, evidence of compulsion or pressure is required, as where an officer exacts illegal fees or a common carrier excessive charges. But the principle is applicable in all cases according to the nature and exigency of each.”

On page 21 it is said: “In our judgment the payment of money to an official, as in the present case, to avoid an onerous penalty, though the imposition of that penalty might have been illegal, was sufficient to make the payment an involuntary one.”

In the case of Swift Co. v. United States (111 U. S. R., 28) the claimant, as manufacturer of friction matches, had furnished its own dies, and for that reason was entitled to a commission of 10 per cent, payable in money, on purchases of stamps for his own use of over $500 at any one time, but for some time accepted payment in stamps, because, under a rule of the Commissioner of Internal Revenue, payment would not be made in any other way, the court said:

‘ ‘ The question is whether the receipts, agreements, accounts, and settlements made in pursuance of that demand and necessity were voluntary in such sense as to preclude the appellant from subsequently insisting on its statutory right.

“We can not hesitate to answer that question in the negative. The parties were not on equal terms. Tbe appellant had no choice. The onty alternative was to submit to an illegal exaction or discontinue its business. It was in the power of the officers of the law, and could only do as they required. Money paid or other value parted with under such pressure has never been regarded as a voluntary act within the meaning-of the maxim, Volenti non fit imjuriaV •

The question is, Does the present case come within the rule announced in those cases ? The postmaster was clothed with official, authority. The claimants as letter carriers were subject to Ms official direction and control, and for any disobedience of his orders they could have been suspended or even dismissed, as ruled in the case of the United States v. Post (148 U. S. R., 124, 133). Under the rule stated less evidence is required to establish compulsion or pressure when exerted by one clothed with official authority than would be required between private persons.

In the present case it could not be said that there was compulsion in the sense in which that word is ordinarily used, nor can it be said that the pressure was such as to influence the action of an ordinarily prudent man in the transaction of business between individuals on equal terms.

The request to continue in force the old schedule came from the carriers, as set forth in the findings, because the new schedule “extended 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.” By reason of the instructions of the Postmaster-General they were informed that the old schedule could not be continued in force any longer unless they would waive all claim thereafter accruing for services rendered in excess of eight hours per day.

Undoubtedly the carriers, from self-interest, preferred not to waive their right to claim for such overtime, but when that was required of them.the alternative was presented as to whether they would accept the new schedule or sign such waiver and continue under the old schedule. They chose the latter, and as the new schedule was designed in conformity with the instructions of the Postmaster-General to conform to the eight-hour lawv we reach the conclusion that the signatures of the claimants were not procured by such official pressure or duress as to bring' the case within the rule stated.

The more difficult question in the case is, Had the postmaster any right to require of the carriers a waiver of the compensation fixed by statute for services to be thereafter rendered?

While we have held that to entitle a carrier to extra pay for service in excess of eight hours per day he must show that he was employed during that time in active postal duties and that such employment was a matter of contract, still his compensation therefor is fixed by statute and not by contract, and that being so, even if his employment be a matter of contract, can such compensation be waived for services thereafter rendered under the circumstances of this case?

When a earlier is employed, engaged in active postal duties, in excess of eight hours per day, his pay therefor is as-' defi-nitety fixed by law as his regular salary. That is to say, the extra pay provided for such active duties by the act of 1888 (supra) is “in proportion to the salary” he receives; and that being so, had the postmaster any authority to either increase or diminish the same or to take it away altogether, even though the carriers consented to perform such services without compensation?

The extra pay, like the salary, is fixed in the statute-as the measure of compensation for the services to bo rendered and is designed to secure efficiency in the public service. That being so, to diminish or take away'such extra pay would be against public policy.

Such was the view of the court in the case of Hawkeye Insurance Company v. Brainard (72 Iowa, 130, 132), wherein it is said:

“ If by contract he may take less, why may not the parties contract for an enlarged compensation? We think a contract whereby an officer agrees to accept a less or greater compensation than is prescribed by statute, or whereby he agrees not to avail himself of a statutory mode of enforcing the collection of his fees, is contrary to public policy and void, and that the contract in question is'of that character, and therefore the demurrer was correctly sustained.” (Gilman v. Des Moines Ry. Co., 40 Iowa, 200; McConkey v. Chapman, 58 Id., 281.)

Although the officer in that case was a justice of the peace, who had agreed in respect of suits commenced by the appellant therein that no costs or charges should be collected by him therefrom until the same had been collected from the opposite party, and in case no such collection was made that then said officer was to lose his costs, still the principle as to the right of diminishing such official compensation by contract is the same as in the case at bar.

The overtime service was performed by the claimants as letter carriers, the same as their regular service was performed, so that the compensation for such overtime was in the nature of, if not, official compensation, and the court is therefore unable after a more careful consideration of the case to draw any distinction which would deny the applicability of the authorities to the extra pay of carriers even though their employment to perform such service be a matter of contract.

In the Adams Case (20 C. Cls. E., 115, 117) and the numerous authorities there cited the. principle is announced that “the appointing power has no control, beyond the limits of the statute, over compensation, either to increase or diminish it;” and such we understand to be the well-settled rule. The reason for the rule is that such claims “rest not upon any contract with the Government, either express or implied, but upon acts of Congress. ” (United States v. McLean, 95 U. S. R., 750.)

While the decisions cited, and many others of like purport, refer to the salary or regular compensation of officers fixed by law, the reason for the rule is equally applicable to extra compensation also fixed by law for services rendered within the line of official duty, and in the interest of the public service should stand upon the same basis.

Therefore, on a reconsideration of this case, after elaborate and able arguments on both sides, the court is constrained to reach a different conclusion from that reached on the trial of the case, and hence the claimants’ motion for a new trial should be allowed, which is accordingly ordered.

Howry, J., dissented.  