
    JOHN A. GORDON v. THE UNITED STATES.
    [No. 18406.
    Decided April 6, 1896.]
    
      On the Proofs..
    The claimant is watcRman in the Hydrographic Office. The authority for his employment is an appropriation act which provides for one watchman, $720, and for laborers, $660. His duties require an attendance of more than eight hours a day. He objects and protests, but continues in service, and now brings his action for the overtime.
    I.Under the Revised Statutes (§ 3738) eight hours 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 statute designates three classes “ laborers, workmen, and mechanics.” This can not be construed to include watchmen.
    II.A watchman serving at an annual salary who objects to serving more than eight hours a day, but continues in service, can not maintain an action for overtime. His protest against being so employed will avail him nothing.
    III.Where a statute, the Act 81st July, 1886 (24 Stat. L., pp. 172, 197, 209), authorizes the appointment of one watchman for a designated office at $720 per annum, he must perform all the duties of that office for that salary; and the statute precludes his superior officers from making any other contract.
    
      The Reporters' statement of the case:
    The following are the facts of this case as found by the court:
    I. John A. Gordon, the claimant, was appointed temporarily as a watchman in the Hydrographic Office, Navy Department, Washington, D. O., on the 23d day of August, 1886. On the
    
      Reporters’ statement of tlie ease.
    30tb day of August, 1886, be was reappointed a watchman in. the same office, and on the 10th day of March, 1894, he was discharged. He performed the duties under his appointment from the 23d day of August, 1886, the time of his first appointment, until the 10th day of March, 1894.
    II. Correspondence and appointments:
    “NAVY DEPARTMENT,
    “ Washington, D. G., August 23rd, 1886.
    
    “ Sir : You are hereby appointed temporarily as a watchman in the Hydrographic Office, Navy Department.
    “I enclose herewith a blank oath of office, which you will please execute and return to the Department.
    “Very respectfully,
    “ J. E. Walker,
    
      “Aotg. Secretary of the Navy.
    
    “Mr. John A. Gordon,
    “ Washington, D. G.”
    “Navy Department,
    
      “Washington, D. G., August 30th, 1886.
    
    “ Sir : You are hereby appointed as a watchman in the Hy-drographic Office, Navy Department, to take effect from this date.
    “Very respectfully,
    “ J. E. Walker,
    
      “Acting Secretary of the Navy.
    
    “Mr. John A. Gordon,
    “ Washington, D. G.
    
    “Forwarded.
    “W. H. Parker,
    
      “Lieut, and Acting JIydrog)r.n
    
    “Navy Department,
    “ Washington, March 2,1894.
    
    “Sir: Your pay and services as watchman in the Hydro-graphic Office, Bureau of Navigation, Navy Department, are hereby, discontinued, to take effect March 10, 1894.
    “Very respectfully,
    “ H. A. Herbert,
    “ Secretary of the Navy.
    
    “Mr. John A. Gordon,
    “ Hydrographic Office, Bureau of Navigation,
    
    
      “Navy Department.”
    III. His hours of service were regularly from 5 o’clock p. m. to 7 o’clock a. m. the following day, except that he was required to be continuously on duty from 5 o’clock p. m. on Saturday until 7 o’clock a. m. the following Monday morning. "When a legal holiday fell upon a Sunday, he was required to be on duty continuously from' 5 o’clock p. m. on Saturday until 7 o’clock the following Tuesday morning. He was required to-be present on all legal holidays. When the office closed at 12 o’clock, his duties commenced at that hour.
    IY. He has never received any compensation for any services rendered by him in excess of eight hours per day.
    Y. In the State, Navy, Post-Office, Treasury, War, and Interior Departments and the Department of Justice, the hours which those designated as watchmen are required to-serve, and for which they are paid, are eight hours per day,, which time is regarded as a legal day’s work.
    YI. Claimant jmotested against his hours of duty and asked to be allowed a little more time to go to church and be with his family nights and Sundays. He was informed that nothing could be done for him, as there was no one to take his place, and if he did not, want to stay he might quit and let some other-person have the place.
    YIÍ. From the 19th of May, 1888, to the 19th of May, 1894, the date at which the suit was brought, claimant was engaged as a watchman beyond eight hours per night the aggregate of 17,000 hours, which, at the rate of eight hours per day,, amounted to 2,125 days.
    
      Mr. F. P. Dewees for the claimant:
    A person may be a laborer, workman, or mechanic, without-being so specifically designated. On railroads, in shops, factories, and mines, there are engineers, firemen, foremen, stokes-men, bosses, miners, watchmen, drivers, stable boys, and many other special designations, yet all are properly included in the-labor pay roll, all are included within and entitled to the benefits of the general laws known as labor laws. A watchinan therefore is, by virtue of his position, a laborer.
    In the present case, claimant was not only technically, but actually a laborer; he had charge of eight stoves, he washed windows, he aided about the ’press, he did anything that was required, and was instructed that so to do was part of his duties. Doing the duty of a laborer, he was entitled to be paid as such. In United States-v. Symonds (120 U. S., 4G), and United States v. Strong (125 U. S., 156), it is held that the performance of sea duty entitled the officer to sea pay, notwitli-' standing it was designated in bis orders as shore duty. In Bradford’s Oase (20 O. Cls. It., 118), it was held that the performance of inspector’s duty entitled the claimant to inspect- or’s pay, although he was successively designated as inspector, night watchman, and night inspector.
    In Martin’s Case (94 U. S., 400), it is held that eight hours constitute a day’s work when no special agreement was made on the subject. The point of that decision is to the effect that the law fixing eight hours as a day’s work did not take away or impair the right of contract, and that by special agreement, a greater or less number of hours may be fixed as a day’s work.
    It follows that where no special agreement is made, and 'it .can not reasonably be contended that there was one in the case at bar, eight hours constitute a day’s work, and the laborer, for additional hours, is entitled to be paid at that rate.
    It is in evidence that in the War Department, the Department of Justice, and the Interior Department, eight hours constitute a day’s work for watchmen. They receive their full pay for such hours. Upon the reasoning, therefore, of like pay for like service, the claimant would be entitled to be paid at the rate of eight hours per day.
    . When the claimant received his appointment the eight-hour law had long been on the statute book. He accepted and continued in his position under the provisions of that law.
    Claimant protested in this case, but the fact of protest is immaterial. If by law his work was to be paid for at the rate of eight hours per day, then his performance upon that basis of many days’ additional work should be so paid. This is in accordance with frequent decisions, and specially the opinion rendered in Adams’ Case (20 C. Cls. It., 117).
    The claim here is for additional, not extra pay. By section 3738, Be vised Statutes, the laborer is entitled to be paid for the number of days of eight hours that he may work. Even if extra pay were asked it would not be in conflict with section 1764, Revised Statutes, which only applies to “officers” or “clerks.” Even in their cases, it is suggested that it is intended to apply where spasmodic work, or work on an emergency is required, rather than when doable duties, requiring extra hours are required.
    The eight-hour law was passed long after the passage of the law relating to extra pay, and tbe laws under any circumstances should be construed pari materia.
    
    In the acts relating to the public printing and letter carriers, Congress has construed eight hours’ work to mean a day’s work, overtime to be paid at that rate.
    The signing of receipts by claimant are only pro tanto. If he is by law entitled to be paid at the rate of eight hours for a day’s work, the appointing officer or the paymaster has no right to change it. There was no right to exact a receipt, except pro tanto, and claimant lost nothing by signing it. (Adams’ Case, 20 C. Ols. E., 118; Fisher’s Case, 15 O. 01s. E., 323; Bost-iviclc v. United States, 94 U. S. therein cited.)
    The facts presented by the present case are, it is to be hoped, unusual. It is perhaps the extreme limit to which the oppression of superior officers, in.matters of hours of labor, may be exercised against inferiors. If a justification of the law under which a day’s labor is defined were required, this example would be sufficient. Claimant was required in every twenty-four hours to work thirteen. Once a week he was required to be continuously on duty thirty-seven hours. When a legal holiday occurred on Saturday, Sunday, or Monday, he was continuously on duty sixty-one hours. He was not a slave in name, but he suffered, greater oppression than fell to the lot of many slaves. He had the poor alternative of giving up his place and thereby depriving his family of support.
    
      Mr. Samuel A. Putnam (with whom was Mr. Assistant Attorney General Podge) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The claimant in this proceeding seeks compensation for extra time, in which he was engaged as a watchman in the Hydro-graphic Office of the Navy Department beyond eight hours each night. The facts show that he was appointed as such watchman on the 23d day of August, 1886, temporarily, on the 30th day of August reappointed and served until the 10th of March, 1894, when he was discharged. His hours of service were from 5 p. m. to 7 a. m., and he was required to be continuously on duty from 5 p. m. on Saturday until 7 a. m. the following Monday. When a legal holiday fell upon Sunday he was required to be on duty continuously from 5 p. m. on Saturday until 7 a. m. the following Tuesday morning.

During tbe time be was employed from tbe 19tb day of May, 1S88, to tbe 19tb day of May, 1894, tbe date at wbicb tbe suit was brought, be was engaged as a watchman over and beyond eight hours per night, tbe aggregate of 17,000 hours, wbicb at tbe rate of eight hours per day would amount to 2,125 days. For that period of time be has been paid a salary as watchman of $720 per year.

Tbe law upon which tbe plaintiff bases bis right to recover as alleged in tbe petition and in tbe argument is section 3738, Devised Statutes, wbicb is as follows:

“Eight hours shall constitute a day’s work for all laborers, workmen, and mechanics who may be employed by or on behalf of tbe Government of tbe United States.”

It is insisted that tbe term “laborer” or “workman” includes tbe claimant, and was intended to protect him against being required (in tbe absence of a special agreement) to labor or perform service beyond eight hours each day; and if be was engaged beyond that time, be is entitled to recover pro rata for tbe time employed beyond eight hours.

Tbe Act of June 25, 1868 (15 Stat. L., 77), now constituting, in substance, section 3738, Revised Statutes, was intended, in tbe absence of an agreement, to regulate and determine a day’s work, of certain persons, and is to be enforced and applied so as to effectuate tbe purpose of tbe legislature. Its purpose is, in tbe absence of a contract, to regulate tbe hours of toil on tbe. part of certain persons in tbe employ of tbe Government, and to direct what time shall constitute a day’s work. As is said - in tbe case of United States v. Martin (94 U. S., 400):

- “It is not a contract between tbe Government and its laborers that eight hours shall constitute a day’s work. It neither prevents the Government'from making agreements with them by wbicb their labor may be more or less than eight hours a day nor does it jxrescribe tbe amount of compensation for that or any other number of hours’ labor.”

Tbe claimant was appointed under tbe Aet of July 31, 1886 (24 Stat. L., 172, 197, 209); by that act an appropriation was made of tbe sum of five thousand eight hundred and sixty dollars, for tbe pay of two clerks of class two, one clerk of class one, one watchman, and one office attendant. Tbe watchman was to be paid at tbe rate of seven hundred and twenty dollars per annum, and laborers at tbe rate of six hundred and sixty dollars per annum. There is a specific appropriation of forty thousand dollars to pay draughtsmen, engravers, copyists, copperplate printers, printers’ apprentices, aDd laborers.

Watchmen, by the terms of the statute, are contradistinguished from laborers by being specifically provided for in a separate and distinct clause of the statute. The term laborer and watchman are well understood in popular parlance, and are clearly distinguished from each other in popular acceptation. Words are to be taken and applied in their ordinary sense and meaning, unless there is something to indicate that they are used in a different sense and a more enlarged or circumscribed signification. (Marks et al. v. United States, 161 U. S. R., 297; Marks et al. v. United States, 28 C. Cls. R., 168.)

The case of Post v. United States (148 U. S., 124, and 27 C. Cls. R., 244) involved the right of a letter carrier to compensation for service beyond eight hours a day and is founded on the Act of May 24, 1888 (25 Stat. L., 157), in which it is-provided:

“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 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.”

It will be seen by this act that it is expressly provided, if service is required beyond eight hours per day, there is a right to compensation subject to the qualification that the service must relate exclusively to the “free distribution and collection of mail matter.” The Supreme Court and this court held, that-the compensation allowed the claimant by the judgment did not come within section 1764 and 1765 of the Bevised Statutes.

The question in controversy in this proceeding is substantially the same that was litigated and determined in the case of Averill (14 C. Cls. R., 200) and the case of Collins (24, id. 340),. in both of which cases it was decided that the claimant was not entitled to recover. In the Averill Case it is held that, “Where an employé in the public service works twelve hours, a day, is paid by the day, and accepts the payment, he is excluded from maintaining that every eight hours constituted a day’s work under the provisions of the eight-hour law. The eight-hour law does not establish an inflexible rule for the paymeut of wages. It was passed in deference to a sentiment of philanthropy, and its intent is not to increase wages, but to elevate the condition of laboring men by diminishing their hours of labor.”

In the Collins Case, it is said that “The duties of a watchman employed to guard property during the night negatives the theory that his employment was for eight hours’ labor per day.”

The law under which claimant was appointed limited the right of appointment to one watchman, at a salary of $720 per year, and thereby precluded the officers of the United States and the claimant from the exercise of the power of contractors to increase the compensation beyond the limit of the appropriation. The claimant when he entered upon the performance of the service had notice of his legal rights and the inability of the officers of the Government to increase the liability of the defendants beyond the appropriation of the statute. The findings show that the claimant protested against his hours, and asked a little more time off, but did not object to the excessive time beyond eight hours for which he now brings his suit. When he protested he was informed that nothing could be done for him, and if he did not want to stay he might quit and let some other person have the place.

Notwithstanding the refusal of officers in charge to lessen the hours of service by permitting temporary absence, the claimant remained in the service until he was discharged on the 10th of March, 1894.

The findings show that in the various Departments there are relays of watchmen, so that no one is required to be on watch beyond eight hours, and for that he is allowed a legal day’s service; but in the case of the Hydrographic Office that plan could not be adopted, for the reason it is only entitled to one watchman, whose service must necessarily be continuous during the hours requiring the service of a watchman.

The statute upon which the suit is based uses three designations of persons who are entitled to the benefits of its provisions, to wit, “laborers, workmen, and mechanics.” To construe any of these designations as including “watchmen” would be, in the judgment of the court, doing violence to the language of the law, and carrying the purpose and object of the statute beyoud the limits plainly marked by the phraseology of tlie act. The statute must be applied according to its plain and unequivocal words, and not construed by rules of strained interpretation. Petition dismissed.  