
    DIXON N. GARLINGER v. THE UNITED STATES.
    [No. 16312.
    Decided November 25, 1895.]
    
      On the defendcmts’ Motion.
    
    Judgment is rendered in this case in favor of the claimant (ante p. 208]. The defendants now move to reverse the judgment.
    I.The distinction between this case and Post’s (27 C. Cls. R., 244) is that there the letter carriers’ statutory day of eight hours was based on and included in the ordinary calendar day. Here the Treasury regulations, having' the force of law, expressly provided that two statutory days’ service might be rendered in one calendar day, and that a night inspector of customs, in certain cases, might receive pay for a calendar day during which he rendered no service whatever.
    II. The distinction between this case and Harrison’s (26 C. Cls. R., 259) is that there an employee in the Government Printing Office had no legal right to a leave of absence with pay, and the Public Printer had no legal authority to make a gift of money where he refused a leave of absence. Here the regulations expressly provided that night insj>ectors should receive in certain contingencies leave of absence with pay, and left no discretion in their superior officers to order otherwise.
    III. The distinction between this case and Martin’s (94 IT. S. R., 400) is that their employees were seeking to recover additional compensation for overhours where it was prohibited by law. Here a night inspector is not seeking to recover for oveThours, but for an entire day’s service rendered which has not been paid for.
    
      IT. When each of two things, as legally defined, is complete and distinct, the one is not an additional part of the other; and where a Government employee renders two distinct, entire statutory days’ services, though in one calendar day of twenty-four hours, he is as much entitled to compensation for the one statutory day as for the other.
    V. The regulations of the Treasury Department having heen in force for a number of years and in operation in every port of the United States except one, and having received the tacit, if not express, approval of Congress, the court will not disregard them and hold that they are not authorized by law.
    
      The Reporters’ statement of tbe case :
    The following is the motion made on behalf of the defendants:
    Now come the defendants and move the court to set aside the judgment "rendered in this case, and grant a new trial therein, or render judgment for the defendants, for the reasons;
    First, that defendants allege that error of law was committed in the conclusion of the court that because claimant performed services in excess of those required by regulation of the Treasury Department for each day he was entitled to extra or additional compensation; and, second, because defendants allege that wrong and injustice has been done the United States by said judgment in that no liability should be adjudged against the United States upon the facts found by the court
    
      Mr. Assistant Attorney-General Bodge for the motion:
    The facts of this case are briefly these: Claimant was in the employ of the Government 1,608 calendar days, for which his compensation was fixed by law at $3 per day, and he has been paid $3 for each of said 1,608 calendar days. He claims, and the court has allowed, additional compensation for the reason that the Treasury regulations provided that in case of night work a certain number of hours only should be required of each inspector, and that if certain additional service was required of him upon any given night he should be relieved from duty during the following night.
    Without controverting the rules of law so well and clearly expressed in the opinion with reference to the contract relation of employer and employee, I desire to suggest to the court that in this relationship, though it be that of employer and employee and of contract, there enters a distinct and separate element from that existing between private individuals, and that consists in the provision of section 1764 and section 1765 of the Revised Statutes, and in the Act of June 20, 1874, see-' tion 3 (18 Stat. L., p. 109).
    
      When Congress provides that the salary of an Assistant Attorney-General shall be $5,000 per annum, and adds the prohibitions above quoted, it means not alone to prohibit the individual who holds that office from receiving more, but to prevent the Attorney-General from imposing unexpected expenses on the Government by any.regulations or assignment of duties which might, but for such statutes, authorize additional pay. (Mullett v. United, States, 150 U. S., 566, and cases there cited.)
    This view of the statutes has been repeatedly enforced by this court, and two typical cases are worthy of consideration in connection with the suit at hand. The first is that of Harrison (26 O. Ols. R., 259), referred to in the briefs heretofore filed. In that case the law said that certain employees of the Government should have certain leaves of absence without loss of pay. The superior of the claimant required him to work on certain of the days on which he was entitled to be idle, and he sought to receive compensation for those days. The analogy is extremely close to the case at hand, where by regulation it was provided that if this claimant worked all of one night he should be entitled to a vacation the following night. He now demands pay for the day on which he was entitled to be idle, but for which he has been paid his statutory $3. In neither case did law or regulation provide that the claimant should be paid extra, but merely that he need not work. This court had no hesitation whatever in deciding that Harrison, by a statute which entitled him to certain days of vacation, was not exempted from the prohibitions of the statute cited above and given compensation in case he worked on such vacation days.
    Indeed, the statute providing for inspectors has much more marked their employment as permanent and regular, by providing in the same section for temporary inspectors, who may be employed casually for a single day or a few days; a distinction not existing as to, employees in the Government Printing Office. (Secs. 2733 and 2737.)
    Again, the permanent character of these inspectors is further evidenced and emphasized by the fact that they are required to take an official oath (sec. 2616). They are also appointed by the Secretary of the Treasury, the head of an Executive Department, and therefore, instead of being mere employees, as in Harrison’s Case, are “officers.” (77. S. v. Germaine, 
      99 U. S., 509, 510; U. S. v. Mouat, 124 U. S., 303, 307; U. S. v. Smith, id., 525, 532.)
    The next case significant in this consideration is that of Martin v. The United, States (94 U. S., 400), in which the Supreme Court reversed the holding of this court. In that case Martin was required to work considerably in excess of eight hours per day, although the law in that case, as the regulations in this, had fixed eight hours of labor as a day’s work. His rate of compensation was fixed at $2,50 per day. He sued for compensation for the time worked in excess of eight hours. There the court said that the statute fixing eight hours as a day’s work and prohibiting the employment of laborers and others a longer time was a direction to the officers of the Government, and while it might clearly prohibit them from requiring more than eight hours’ labor, and might entitle the employee to refuse to work more than eight hours, it nowhere conferred upon him exemption from the distinct prohibitions of the statutes above cited.
    Mr. F. P. Dewees and Mr. Louis T. Miehener opposed.
   Nott, J.,

delivered the opinion of the court:

This is in effect a motion on the part of the defendants to set aside the judgment heretofore rendered in favor of the claimant and to enter judgment in favor of the defendants.

The grounds upon which the motion is placed are that the Revised Statutes (sec. 1764, 1765) and the Act 20th June, 1874 (18 Stat. L., p. 109, sec. 4), prohibit additional pay for extra services; that this court held in Harrison’s Case (26 C. Cls. R., 259) that an employé in the Government Printing Office who does not receive a leave of absence is not entitled to recover double pay when the leave is refused; that the Supreme Court held in Martin’s Case (94 U. S. R., 400) that a laborer who was compelled to work more than eight hours a day, contrary to the eight-hour law, could not recover for the additional time; and that this court held in Post’s Case (27 C. Cls. R., 244) that the word day in a statute referring to compensation can not be made to mean anything except a calendar day.

Between this case and those relied upon by the Attorney-General it is believed by the court well-grounded distinctions exist, which may thus be stated:

The distinction between this case and Post’s is that here tbe regulations of tbe Treasury Department, made under tbe statute and having tbe force of law, define tbe statutory day as something different from tbe calendar day, and provide expressly that two statutory days’ service may be rendered in one calendar day. They go further and provide that a night inspector may receive pay for a calendar day during which he renders no service whatever. It is these provisions of the regulations which form the ground work of the court’s opinion and distinguish this case from all other cases; that is to say, from all.cases seeking additional or extra pay. Whether these regulations are authorized by law may well be doubted. But having been in force for a number of years, and in operation in every port of the United States except at the port of Baltimore, and having received the tacit, if not express, approval of Congress, this court does not feel at liberty to disregard them and hold that they are not authorized by law.

The distinction between this case and Harrison’s is that there the claimant was not entitled as a matter of legal right to a vacation with pay, but only to a leave of absence for a restricted period when, in the discretion of the Public Printer, such leave could be granted without detriment to the public business; and the Public Printer had not the shadow of legal authority for making a gift of money where the state of the public business did not admit of his giving a workman a leave of absence. Here the regulations expressly provided that the night inspectors should receive, in certain contingencies, leave of absence with pay, and left no discretion in their superior officers to order otherwise. In the one case the legal right which must be the foundation of a suit at law did not exist; in the other it does.

The distinction between this case and Martin’s is that there the claimant was seeking to recover additional compensation for extra time where such additional compensation was prohibited by law. Here the suit is not to recover for extra time, but for a day’s service rendered which has never been paid for. The claimant has done two days’ work and been paid for only one. The unpaid-for service was not additional or extra, but en tire and complete, a thing by itself. The compensation which the court awarded was not compensation prohibited by law, but, in the opinion of the court, the exact compensation prescribed by law. Whether the regulations have the force of law, whether they make the law of the case and fix the claimant’s legal right, as was before said, may well be questioned; but. this court, for the reasons before given, does not feel at liberty to disregard them.

In Martin’s Case the Supreme Court, in the construction of the eight-hour law, followed tbe general principle of the law of master and servant, that the servant can not recover additional compensation for overhours. This court, in the interpretation of the law in the present case, has followed the other principle, that the master can not require the servant to render a service which is beyond the sphere of his proper employment, or to render both day and night service where he was hired to render only one of them. Where a night-watch of these inspectors ran beyond the prescribed limit, where an inspector instead of being relieved at midnight was compelled to serve until one or two or three o’clock in the morning, it is a case of overhours, or extra time, for which he can not recover. But where he rendered two distinct, entire statutory days’ services, though in one calandar day of twenty-four hours, it was service beyond his proper employment, and he is as much entitled to compensation for the one statutory day as for the other. When each of two things as legally defined is complete and distinct, it can not properly be said that the one is an additional part of the other. If a farmer had agreed to deliver at a military post one cord of wood a day for one year, and had been required on some days to deliver two cords instead of one, and in the course of the year had delivered 500 cords instead of 365, he would have been paid without a doubt for the number of cords delivered and not for the number of days in the year. Here the regulations, which may be considered as taking the place of a contract, required the night inspectors to do duty for one night-watch a day on every day in the year. On many days they were required to perform the duty through two night-watches, and in the course of a year to perform to the extent of, say, 500 night-watches instead of 365. If the regulations have the force of law it seems to the court that the case of the inspectors is as clear as the case of the farmer.

The order of the court is that the motion of the defendants be overruled.  