
    MARTIN SWISHER v. THE UNITED STATES.
    [No. 34563.
    Decided March 6, 1922.]
    
      On the Proofs.
    
    
      Bight-hour laxos; firemen, xohether included; protest. — Where a fireman with seven years’ experience in a city fire department enters the service of the fire department of the explosive plant at Nitro, W. Va., operated, during his term of service, by a contractor and agent of the United States, and later by another contractor, and still later by the Ordnance Department, at a much, increased salary and with full knowledge that his em- . ployment would be “ under the 24-hour system,” and accepts his compensation without protest or complaint to any one in au-tbority that his pay was less that it should be, and makes no claim for compensation for more than eight hours’ service until the filing of this suit, more than six months later, he can not maintain an action for compensation for overtime under the eight-hour laws.
    Same. — Firemen serving at United States explosive plants during the war with Germany were not “ laborers ” or “ mechanics ” within the meaning of the eight-hour laws.
    
      The Reporter's statement of the case:
    
      Messrs. George A. King and George R. Shields for the plaintiff. King & King were on the briefs.
    The provisions of law are plain and mandatory in requiring that all laborers and mechanics employed by the United States or its contractors on public work such as that carried on at Nitro be allowed overtime pay for all time employed in excess of eight hours per day. Plaintiff was employed at Nitro far in excess of eight hours per day. Was his employment that of a “laborer or mechanic ” ?
    Bouvier’s Law Dictionary classifies the term “laborer” as denoting
    “ One who performs with his own hands the contract he made with his employer {Appeal of Beiders, 46 Pa. 57) : One Avho labors in a toilsome occupation: A man who does work requiring little skill as distinguished from an artisan {Rano v. Railroad Company, 27 Ark. 567; Epps v. Epps, 17 Ill. App. 196).
    There are many cases holding that work in a particular line constitutes work as a “laborer.” In McEVwaine v. Eosey, 135 Ind. 481, 489, the question was whether a teamster was a laborer within the meaning of a statute regulating mechanics liens. The court said:
    “ Appellants’ contentions that teamsters are not within the provisions of the act of March 9, 1889, concerning liens of mechanics, labor and material men we think fallacious. The spirit and intention of the statute is to prefer laborers as a class, and not to prefer one class of laborers over another, nor one kind of manual or mechanical toil over another, if all come within the general scope of its provisions and comply with its terms. The law was enacted in the interest of such wage earners generally, and should be liberally construed so as to effectuate the object intended.”
    
      The courts have often been called on to define the meaning of the term “ laborer ” as used in statutes limiting hours of service, filing of liens, etc. The rule to be followed in arriving at a correct definition of the term was stated in Oliver v. Macon Hardware Co., 98 Ga. 249, 253, as follows:
    “ In determining whether a particular clerk, or other employee, is really a ‘ laborer,’ the character of the work he does must be taken into consideration. In other words he must be classified not according to the arbitrary designation given to his calling but with reference to the character of the service required of him by his employer.”
    In Kansas City v. McDonald, 80 Mo. App. 444, 448, the term “ laborer ” is thus defined:
    “ Etymologically the word ‘ laborer ’ may include any person who performs physical or mental labor under any circumstances : but its popular meaning is much more limited. The farmer toiling on Inis own farm, the blacksmith working in his own shop, the tailor making clothes for his own customers, is not called a laborer. One who performs physical labor, however severe, in his own service or business is not a laborer in the common business sense. A contractor who takes the chance of profit or loss is not a laborer in that sense. In the language of the business world, a laborer is one who labors with his physical powers in the service and under the direction of another for fixed wages. This is the common meaning of the word and hence its meaning in the statute.”
    The record shows that the plaintiff was “on duty” or in a “ duty status ” day and night for five full days out of every six. He found time for eating and sleeping in that time. How much time was he employed in excess of eight hours per day?
    In United States v. Gates, 148 U. ,S. 134, 136, a letter carrier case, the court said:
    “The carrier is entitled to eight hours’ work, and to his pay if work is not furnished to him. For any excess on any day he is entitled to extra pay. The only set-off that can be maintained is when he is absent from duty without leave. The department is at liberty to keep a carrier employed eight hours every day, but not to give him a deficit of work one day and an excess another.”
    In Denver, etc. v. United States, 233 Fed. 62, it was held that the crew of a train was on duty during a lunch and rest period while awaiting the arrival of a wrecking derrick.
    In United States v. Minneapolis, etc., 236 Fed. 414, it was held that a release from duty of two hours and twenty minutes for meals and rest was not to be considered or deducted in determining hours of continuous employment. These cases seem to embody the accepted rule in construing statutes limiting the hours of service of employees, namely, that the employee is not to be considered as not on duty during a time when he is subject at any time to call to duty. His release from duty must be absolute and for a time sufficient to make rest or recreation possible.
    In Davies v. City of Seattle, 121 Pac. Pep. 987, the question was whether certain city teamsters spending necessary time in oiling their wagons, getting ready for work and going to their work, in addition to eight hours “on the job,” were employed in excess of eight hours per day, the defense to claim being that such “choring” was not work within the meaning of the statute limiting hours of labor. The court rejected the contention as “a palpable evasion of the law,” and held that all time employed in such work was to be counted as hours of employment.
    In United States v. Chicago, etc. Co., 219 Fed. 342, 343, it was said:
    “ From these facts, it is apparent that the operator was always subject to call whenever his services were required, both during meal hours and at other times. It is well settled that, within the meaning of the Hours of Service Act, brief periods allowed for meals and other purposes do not interrupt the continuity of service. Under the circumstances here shown, it must be held that the operator was on duty during the time he was taking his meals.”
    In Minneapolis, etc. Co. v. United States, 245 Fed. 60, 64, it was said:
    “ That an employee is absolutely relieved from service is not of controlling importance, if the time is so short or the opportunities for rest are so meager that for all practical purposes an employee does not have the opportunity for rest which the law requires.”
    # * # ❖ *
    “We are of the opinion that the periods of release were periods of waiting which gave no proper opportunity for rest. The service was what is termed a ‘ turn-around ’ service.”
    In Missouri, etc. Go. v. United States, 231 U. S. 113, 119, the court said:
    “ One of the delays was while the engine was sent off for water and repairs. In the meantime the men were waiting doing nothing. It is argued that they were not on duty during this period and that if it be deducted they were not kept more than sixteen hours. But they were under orders, liable to be called upon at any moment, and not at liberty to go away. They were none the less on duty when inactive. Their duty was to stand and wait.”
    The foregoing cases, typical of many construing hours of service laws, appear to be conclusive as requiring that time off for meals and similar purposes is not time off the period of actual employment where the employee remains subject to duty during such time. Applying these principles to the case in hand the plaintiff’s hours of employment are to be computed on the basis of the time he was actually on duty including the brief periods taken for meals.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    The following are the facts of the case as found by the court:
    I. Under an emergency contract entered into on the 18th of January, 1918, between the United States and the Thompson-Starrett Company, a plant for the manufacture of explosives was erected by said company as the agent of the United States at Nitro, West Virginia, the contract specifically authorizing said company, as agent for the United States, to make all necessary contracts for services, labor, materials, supplies, etc.
    Thereafter, under date of May 9, 1918, the United States entered into a contract with the Hercules Powder Company under which the United States agreed to equip said plant for the manufacture of powder and said company agreed, beginning as soon as one unit of the plant was ready, to manufacture therein, for the United States, powder in stated quantities, the United States, upon proper bond being furnished, to advance money for operating expenses, materials, etc., to be accounted for, and pay said company two and three-fourths cents per pound for all powder manufactured and accepted by the United States and a bonus to the extent of one-half of the saving on account of any difference between the “ actual cost ” of manufacture, determined as provided in the contract, and an assumed “ base price.”
    Beginning with November 1, 1918, and continuing to January 16, 1919, said plant was operated in the manufacture of powder by the Hercules Powder Company, and from January 16, 1919, to September 30, 1919, it was operated 'by the United States through its Ordnance Department.
    II. On August 7, 1918, the plaintiff was employed by the Thompson-Starrett Company, acting as agent for the United States, as a fireman for duty in the fire department at the United States explosive plant at Nitro, West Virginia, and continued in said employment, ranking as a private in said department, until and including October 31, 1919. His rate of pay during said time was $151.66 per month, which he was paid in semimonthly installments.
    From November 1, 1918, to January 15, 1919, inclusive, he was employed by the Hercules Powder Company as a member of said fire department, ranking until December 5, 1918, as a private and thereafter as a lieutenant. His rate of pay during said time, while serving as a private, was $151.66 per month, and while serving as a lieutenant $173.40 per month, which was paid to him in semimonthly installments.
    From January 16, 1919, to September 30, 1919, he was employed by the United States as a member of said fire department, being designated by temporary appointment as a lieutenant. His rate of pay from January 16, 1919, to July 16, 1919, was $173.40 per1 month, and from July 16, 1919, to September 30, 1919, the date of the termination of his service, his rate of pay was $148.50 per month, all of which was paid to him in semimonthly installments. His employment was at a monthly salary.
    III. The duties which the plaintiff was required to perform as a member of said fire department were such as are usually performed by firemen in city fire departments, but, by reason of different conditions to be met, he, with his associates in the department, were required to perform duties involving much manual labor and some degree of mechanical aptitude, but all duties required were such as related directly to the prevention and extinguishing of fires.
    IY. The plaintiff and other firemen employed at Nitro were on duty continuously day and night, with twenty-four hours off every sixth day. During such duty period they were allowed one hour each for three meals per day, but were subject to call in case of fire or other emergency during that time. They were quartered and slept in the fire house, using for sleeping purposes not in excess of eight hours out of twenty-four, but were subject to call in case of fire or other emergency at any time during the day or night. They were allowed three and a half hours once each week for recreational purposes, but were not at liberty to leave the reservation and were subject to call during such time. An official record was kept at each fire house, showing the men on duty, character of duty performed, and hours of service performed by each man, such record being kept under the supervision and direction of the chief of the fire department.
    Y. Excluding from the computation time off for meals and recreation plaintiff was on duty in excess of eight hours per day during the several terms of his employment as follows:
    1.Under the Thompson-Starret Company, agents for the United States, from August 7, 1918, to October 31, 1918, inclusive — ■
    Hours. Week days- 779 Sundays and holidays- 143
    2. Under the Hercules Powder Company from November 1, 1918, to January 15, 1919, inclusive — ■ Week days- 609 Sundays and holidays_ 148
    3. Under the Ordnance Department of the United States from January 16, 1919, to September 30, 1919, inclusive— Week days_1, 932 Sundays and holidays- 3571
    
      YI. Excluding also from the computation eight hours per day for sleeping in addition to the time off for meals and recreation the plaintiff during his term of employment was on duty in excess of eight hours per day as follows:
    1.Under the Thompson-Starret Company, agents for the United States, from August 7, 1918, to October 31, 1918, inclusive—
    Hours. Week days_ 290 Sundays and holidays_ 55
    2. Under the Hercules Powder Company from November 1, 1918, to January 15, 1919, inclusive— Week days_ 215 Sundays and holidays_ 55
    3. Under the Ordnance Department of the United States from January 16, 1919, to September 30, 1919, inclusive— Week days_ 653 Sundays and holidays_ 2111
    VII. Before entering upon his employment as a member of the fire department at Nitro, an employment which he sought because of the increased compensation, the plaintiff was a member of the city fire department at Richmond, Indiana, at a salary of $85.00 per month, and had been so employed for seven years, and when employed for the service here involved at Nitro he understood that he was employed “ under the 24-hour system.” He accepted all payments made to him without protest, never at any time made any complaint to any of his employers or to anyone in authority as their representatives that he was paid less than he was entitled to, never made any claim to anyone in authority that he was entitled to compensation on an eight-hour per day basis, and never made any claim of any kind for additional compensation until the institution of this suit, but accepted when paid the payment made as full compensation for his services.
    This suit was commenced April 17, 1920.
   DowNEV, Judge,

delivered the opinion of the court:

The plaintiff seeks to recover for services in excess of eight hours per day while employed as a member of the fire department maintained at the United States explosive plant at Nitro, West Virginia. He predicates his right of action on the act of Congress approved March 3, 1913, 37 Stat. 726, the act of March 4, 1917, 39 Stat. 1192, and Executive orders of March 24 and April 28, 1917, respectively, by which the President, by authority of the act of March 4, 1917, declared the existence of an extraordinary emergency and directed that when necessary for purposes of national defense laborers and mechanics, whether employed by Government contractors or by agents of the Government, might be required to work in excess of eight hours per day at rates of wages to be computed in accordance with the proviso to said act of March 4, 1917.

The original eight-hour law, taken from the act of 1868 and enacted in the Revised Statutes as section 3738, provided that—

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

This was followed by the act of August 1, 1892, 27 Stat. 340, which provided that—

“ The service and employment of all laborers and mechanics who are now or may hereafter be employed by the Government of the United States, by the District of Columbia, or by any contractor or subcontractor upon any of the public works of the United States or of the said District- of Columbia, is hereby limited and restricted to eight hours in any one calendar day, and it shall be unlawful for any officer of the United States Government or of the District of Columbia or any such contractor or subcontractor whose duty it shall be to employ, direct, or control the services of such laborers or mechanics to require or permit any such laborer or mechanic to work more than eight hours in any calendar' day except in case of extraordinary emergency,”

followed by further provisions for penalties to be assessed against any officer of the United States or any contractor or subcontractor who shall intentionally violate any provisions of the act.

The act of June 19, 1912, 37 Stat. 137, provided, among other things, that every contract made to which the United States was a party or which was made on behalf of the United States and involved an employment of laborers or mechanics should contain a provision that no laborer or mechanic during any part of the contemplated work should be required or permitted to work more than eight hours a day.

The act of March 3, 1913, 37 Stat. 726, amending, sections 1, 2, and 3 of the act of August 1, 1892, provided that.—

“The service and employment of all laborers and mechanics who are now or may hereafter be employed by the Government of the United States or the District of Columbia, or by any contractor or subcontractor, upon a public work of the United States or of the District of Columbia, and of all persons who are now or may hereafter be employed by the Government of the United States or the District of Columbia, or any contractor or subcontractor, to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, is hereby limited and restricted to eight hours in any one calendar day,” followed by provisions prohibiting persons employed to perform similar services to those of laborers and mechanics, in dredging rivers or harbors, laboring more than eight hours a day, with reservations not here material and providing penalties.

In the naval appropriation act of March 4, 1917, 39 Stat. 1168, at 1192, is the following provision:

“ In case of national emergency the President is authorized to suspend provisions of law prohibiting more than eight hours labor in any one day of persons engaged upon work covered by contract with the United States: Provided- further,, That the'wages of persons employed upon such contracts shall be computed on a basic day rate of eight hours work, with overtime rates to be paid for at not less than time and one-half for all hours work in excess of eight hours.”

By Executive order dated April 28, 1917, the President directed as follows:

“Under authority contained in the naval appropriation act approved March 4,1917, Public, No. 391, 64th Congress, it is hereby ordered that the provisions of the eight hour act of June 19, 1912, are suspended with respect to persons engaged upon work covered by contracts with the United States, made under the War Department, for the construetion of any military building or for any public work which in the judgment of the Secretary of War is important for purposes of national defense in addition to the classes of contract enumerated in Executive order of March 24,1917.

“It is further declared that the current status of war constitutes an £ extraordinary emergency ’ within the meaning of that term as used in the eight hour act of March 3, 1913, 37 Stat., 726, and that laborers and mechanics employed on work of the character set forth above, whether employed by Government contractors or by agents of the Government, may, when regarded by the Secretary of War as necessary^ for purposes of national defense, be required to work in excess of eight hours per day, and wages to be computed in accordance with the proviso in the said act of March 4, 1917.

“This order shall take effect from and after this date and shall be operative during the pending emergency or until further orders.”

The situation at the Government explosives plant at Nitro and the plaintiff’s services divided themselves naturally into three periods.

The first period may be called the construction period and so far as the plaintiff’s service is concerned extended from August 7, 1918, to and including October 31, 1919. The United States had entered into a contract with the Thompson-Starrett Company for the erection of the explosives plant, denominating said company as its “construction managers ” and empowering said company as agents of the United States to make all necessary contracts for labor, materials, supplies, etc. For the period above stated the plaintiff was employed by the Thompson-Starrett Company as a member of the fire department organized and maintained at the explosives plant.

The second period embraces the time from November 1',. 1918, to January 15, 1919, inclusive, during which the Hercules Powder Company, was engaged, under contract, ire the manufacture of powder at this plant for the United States and during which period the plaintiff was employed as a member of said fire department by the Hercules- Powder Company. Up until December 5, 1918, he ranked' as a private in the fire department and thereafter as a lieutenant.

The third period extended from January 16, 1919, to September 30, 1919, inclusive, during which time the plant was operated by the United States through its Ordnance Department and during which time the plaintiff was employed by the Ordnance Department as a member of said fire department, his service terminating- by resignation September 30, 1919.

During each of these several periods his employment was upon a monthly salary basis and he was paid in semimonthly installments the full amount of his fixed monthly salary.

What may be denominated the primary question for consideration is whether the plaintiff’s employment as a member of said fire department was of such a character as to entitle him to be rated as a “laborer” or “mechanic” within the meaning of the act of March 3, 1913. It seems to us quite useless to undertake to determine this question by the various definitions of the words “ laborer ” and “ mechanic,” which have been furnished us by the lexicographers. In a sense all men who work in any manner are laborers, for “ work ” and “ labor ” are synonymous terms; but we are interested in the meaning of the word as used in the act, and whether the services required of the plaintiff bring him within that meaning, for while it is to be conceded that a man serving as a member of a fire department, especially under the circumstances surrounding the maintenance of such a department at the Nitro plant, performs real manual labor for at least a part of his time, in the discharge of his duties as a fireman, it does not necessarily follow that he is such a laborer as comes within the contemplation of the eight hour law.

He performed such duties as are ordinarily performed by members of a city fire department, and, no doubt, by reason of the surroundings, the location, and character of the property to be protected and the required facilities for furnishing that protection, coupled with an absence of paved streets and such like improvements, some of his duties were of a more laborious character than if he were so employed in the city of Washington; but it is not contended that his duties, possibly strenuous at times, but only at times, were in any degree other than those properly and necessarily pertaining to the duties of a member of a fire department, under such circumstances, in the work of preventing and extinguishing fires.

He came to this service of his own accord, because of the increased compensation offered, from a service of seven years in a city fire department. He therefore knew from experience the duties of a fireman, and it is safe to say that during his seven years’ service in the beautiful little city of Richmond, Indiana, he would have resented being classified as a “ laborer.” Further, he knew the customary hours of duty of a firemen, and we are informed by his own testimony that when he entered upon this duty at Nitro he knew that he was under the 24-hour system.” He expected to be on duty 24 hours per day, with the exception of the leave allowed; the necessities of the service required it, as he well knew from experience; he was furnished and occupied sleeping quarters at one of the fire houses, a condition attendant generally upon such a service, that he might be available to respond to a call at any moment; and, generally, every circumstance and condition repudiates the idea of an eight-hour day. There is too much of inconsistency in the idea that the daily hours of duty of a man in such an employment could be limited to eight hours, at least until the practice prevailing at the time of this employment and long theretofore has given way to a new and different system, and in the face of that prevailing x>ractice and the necessities of the service it seems wholly unwarranted to conceive that the word “ laborer ” as used in the eight-hour law was over intended or by any reasonable construction can be made to include such an employee.

In Gordon v. United States, 31 C. Cls. 254, Judge Weldon uses language discussing the status of a “ watchman ” which with the substitution of the word “ fireman ” would be peculiarly approximate. He says:

“ The term ‘ laborer ’ and ‘ watchman ’ are well understood in popular parlance and are clearly distinguished from each other in xiopular acceptation. Words are to be taken 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.”

Ancl in the Collins case, 24 C. Cls. 340, he held in substance that the employment of a watchman who was expected to guard the defendant’s property during the night could not hare contemplated a hiring upon the theory that eight hours was to constitute a day’s labor giving the right to the employee to quit at the end of eight hours’ service.

With even more force may it be said that in the case of the employment of a man as a member of a fire depai'tment at a monthly wage with no agreement impairing the obligation to perform the usual duties attendant upon such an employment, the very nature itself as well as the necessities of such an employment negative the idea of an eight-hour day.

That no erroneous inference may be drawn to the effect that if a different conclusion were to be reached as to the inclusion of the plaintiff within the purview of the eight-hour law, we should conclude that a right of recovery would follow, it is perhaps well to suggest the settled rule that none of the eight-hour laws have of themselves established an enforceable rule for the payment of wages.

They limit the hours per day during which a laborer may be required or permitted to work; by one of the later acts the limitation is required to be written in all contracts, prohibiting thereby an agreement to work more than eight hours a day, unless in an emergency, and penalties are provided against the representatives of the Government or the contractors who wilfully violate the act, but all these added provisions were evidently to strengthen the force of the law by prohibitions and penalties operative against those having to do with work of the character contemplated without giving to the laborer a right of action if, employed at a daily wage, his hours of employment should be extended beyond eight. It is scarcely worth while to discuss in detail the many cases. Among some of the earlier ones which have been followed we cite Martin v. United States, 10 C. Cls. 276, 94 U. S. 400; Driscoll v. United States, 13 C. Cls. 15, 96 U. S. 421; Averill v. United States, 14 C. Cls. 200; United States v. Moses, 126 Fed. 58.

But with the plaintiff’s declaration in the present case on the act of March 3, 1913, which of itself it would probably be conceded could give no cause of action, there is coupled the provision from the act of March 4,1917, and the Executive order, under the authority of that act, declaring the existence of an extraordinary emergency, both quoted above. This latter act for the first time, contingent upon an executive declaration of an emergency, injects a statutory provision for additional pay for labor over eight hours per day during the emergency, but it is apparent that the authority to suspend the prohibitory provisions of the eight-hour law could confer no benefits upon one not within the scope of that law and we have already so concluded as to the plaintiff in his employment here involved. It is apparent also that there are limitations by necessary construction to be put upon the act of March 4, 1917, and executive action thereunder, which would bear adversely upon the plaintiff’s right of recovery even if his status.otherwise was not as we have found, blit the conclusion already reached as to his status renders it unnecessary to discuss this act in detail so far as the instant case is concerned, and since it must be known to the court that it is likely to be the basis of many other actions for our consideration construction is reserved.

But there is another view of this case which, aside from all that has been said, must preclude a recovery. The plaintiff came to this service fresh from a service of seven years as a fireman in a city fire department and with full knowledge of the nature of the service and in the belief that he was entering the service, as he says, “under the 24-hour system.” His compensation, evidently very satisfactory to him, since it was the inducement for his coming, was fixed on a monthly basis, and during the entire period of his service he was paid the agreed monthly compensation in semimonthly installments. Having served through these three periods of employment and having received all the compensation which it was ever agreed that he should receive and all which he at any time during that service demanded or expected to receive, he, for the first time, by this suit demands an additional compensation which, if allowed, would serve to increase his compensation to an amount two or three times that contemplated during the entire period of his service by either party.

In this connection it is to be remembered, and the record and findings clearly so show, that he never at any time made any objections to the hoiirs of service required of him, never made any protest as to the insufficiency of the payments made, never claimed to anyone in authority that he was entitled to any other or different compensation, but, upon the contrary, received every semimonthly payment made to him as in full payment of all that was due him for services rendered.

It is to be noted that his service under the Thompson-Starrett Company terminated on the 31st day of October, 1918, and no demand of any kind was made for additional compensation until the commencement of this suit about a year and a half after the termination of that service. He immediately and voluntarily reentered the same service under the Hercules Powder Company at the same compensation, and for that service, terminated on the 15th day of January, 1919, he made no demand whatever for additional compensation until the commencement of this suit about 15 months thereafter. And upon the termination of his service under the Hercules Powder Company he immediately reentered the same service under the Ordnance Department with the same compensation, and he made no demand whatever for or in any manner asserted any right to additional compensation until the commencement of this suit more than 6 months after the termination of the last-named service.

It is against reason and justice as well as the conclusions of the courts to permit one to continue in a service under such circumstances, receive an agreed compensation at regular intervals during a considerable period of time without any protest or assertion in anjr manner of any claimed right to other or additional compensation, and then successfully assert such a right after separation from the service. He should seasonably assert his demands, to the end that the employer may be informed as to what .they are when there is yet opportunity for protection against unwarranted demands by separation from the service. There was in this case a perfect understanding as to the compensation as well as the nature and extent of the services to be rendered in return for it, and the satisfactory character to both parties both of the service and compensation is indicated by two voluntary reentries into the same service on the same terms. Among the cases holding against a right of recovery under similar circumstances we find none wherein it seems to us the facts should more certainly preclude a recovery than in this.

We refer particularly, without apparent necessity for quoting, to Garlinger v. United States, 169 U. S. 316. Also Martin's case, supra; Driscolls case, supra; Averill's, case, supra; and Moses’ case, supra. Grissell v. Noll Brothers, 36 N. E. 452; Vogt v. City of Milwaukee, 74 N. W. 789; Nicholas v. United States, 55 C. Cls. 188; affirmed 257 U. S. 71, and Norris v. United States, 257 U. S. 77.

A minor feature of the case, applicable to a part of the claim only, has not been mentioned. In view of our conclusions as to the whole case it might be passed without reference except for the implication that it had been overlooked. While the plaintiff’s employment during the first period thereof was by the Thomson-Starrett Company, acting as agents for the United States, under express authority, and his employment during the third period was by the Ordnance Department of the United States direct, his employment during the intermediate period was by the Hercules Powder Company. The contract with that company contained no agency clause such as did the Thompson-Starrett Company contract, and it is contended that it does not permit of a construction which would malee the company the agent of the United States for the employment of labor, but that its status was that of a contractor and not an agent, and if there was liability otherwise it could not attach, during this period, against the United States. Under the circumstances we do not find it necessary to decide this question.

We conclude, for reasons stated, that the plaintiff is not entitled to recover.

GRAHAM, Judge; Hat, Judge; Booth, Judge, and Campbell, Chief Justice, concur.  