
    ALEXANDER JOHNSTON ET AL. v. THE UNITED STATES.
    [No. 19097.
    Decided March 24, 1902.]
    
      On the Proofs.
    
    Certain statutes provide that “inspectors,” and “inspectors employed for service at night" and “night inspectors,” shall be paid not to exceed $3 a day. In 1885 the Secretary of the Treasury changes the designation of these persons at the port of Philadelphia from “night inspectors” to “surveyor's watchmen," and the compensation from S3 a day to §840 a year. The services rendered under both designations are the same and prescribed by regulations.
    I.The Secretary of the Treasury has general authority under the Devised Statutes (§ 249) to direct the superintendence of the collection of duties on imports as he shall deem best; and under the Act Sd March, 1881 (21 Stat. L., 429), to employ inspectors of customs at less than §3 per day.
    II.The persons designated in some statutes as “inspectors employed at night" and as “night inspectors” were really persons standing guard over goods at night to prevent removal; they do not inspect goods, or examine invoices, or make appraisements.
    III."Where the Secretary of the Treasury may legally exercise the discretion of paying inspectors of customs or surveyor’s watchmen less than S3 per day, and they accept the compensation allowed, they can not maintain an action for the difference. The statutes and regulations relating to inspectors of customs and their duties and compensation examined.
    
      The Bejpoi'ters’ statement of the case:
    The facts of the case wi]l be found in the opinion of the court.
    
      Mr. Leonard Myers for the claimants. Mr. P. D. McLLen-ney was on the brief:
    1. The position of night inspector is an office recog'nized and created by law.
    The Government admits that there is at least one act of Congress, viz, the Act of March 3, 1881 (Supp. Rev. Stat., yol. i, p. 321), which recognizes the office of night inspector as existing in pursuance of law.
    The Act of June 10, 1880 (Supp. Rev. Stat., Yol. I, p. 292; 21 Stat. L., 173), is entitled “An Act to regulate the compensation of night inspectors of customs.” It empowers the Secretary of the Treasury to increase. the compensation of inspectors of customs employed under existing law for service at night to a sum not exceeding $3 for each night’s service.
    By section 2733, Revised Statutes, the pay of inspectors of customs had been fixed at $3 for every day.
    By Act of Jane £0, 1878 (20 Stat. L., p. 217), the above section was so amended that such inspectors employed for service at night should bo paid not exceeding $2.50 for each night.
    Then followed .the act of 1880, above cited, permitting the increase, which was allowed by Secretary Folger by order of December 22, 1881, and was paid to all the night inspectors at the port of Philadelphia until the attempted abolition of the office thus created by law.
    2. It is, however, claimed that the Secretary had the power to appoint these so-called surveyor’s watchmen “in aid of the revenue.” If that were true, the law required that they should have the same pay as the night inspectors whose duties they were called upon to perform.
    By section 2738, Revised Statutes, “all aids to the revenue or others performing the duties of inspectors of customs in any collection district shall be paid the same per diem compensation as inspectors of customs.”
    An “aid” to the revenue inspectors does not mean a substitute. There must be some one to aid, and he can not be given the same compensation as an inspector if there is no such office existing as an inspectorship.
    The truth is, as the petitions as well as the proofs show, these appointments were made at different times, running from December 11, 1885, to August 5, 1886, during which entire period there were night inspectors at said port of Philadelphia at a pa}*- of $3 per diem side by side with the newly named surveyor’s watchmen at a salary of $840 per year.
    The new men were therefore not given the same compensation as the night inspectors.
    William Burnside was the sole remaining night inspector at said port, recognized and paid as such, on August 5, 1886. His commission as night inspector was dated July 6, 1878, but on August 5, 1886, ho was transferred while performing the same duties and given the new name of surveyor’s watchman, the order of the Secretary being to abolish his former office, and was subsequently given a commission as surveyor’s watchman. Up to August 5,1886, if the appointees were aids to the revenue, their pay should have been the same as that of the night inspectors.
    All the claimants in these cases appointed after that date could have no rating as such aids, as required by law, unless by reference to the pay of night inspectors at the other ports, where this farce was not enacted, and where no attempt had been made to evade the civil-service law by abolishing an office created by law.
    
      8. The change from a per diem to an annual compensation or salary was contrary to law. Every statute relating to the pay of customs inspectors, from 1799 to the present time, requires a per diem, compensation. Section 2733, Revised Statutes, fixes the pay at $3 per day. The act of June 20, 1878, reduced this pay for each night.
    The act of June 10, 1880, permitted the increase of pay for each night’s service.
    The very act of March 3, 1881, on which defendants place their sole reliance for authority to make the reduction, says at a compensation “per day.”
    This is not the first attempt to evade the law in this regard. The Court of Claims set the seal of reprobation upon it in the case of a night inspector.
    The very point now at issue was decided in Adams v. The United States (20 C. Cls. R., 117), where Judge Scofield;' delivering the opinion of the court, said “The law does not pay the inspectors by the year, but by the day;” and in Bradford v. The United States, same volume, pages 118, 119, he held that the rule for payment, under section 2738, Revised Statutes, applies whether the appointee is designated an inspector, night watchman, or night inspector, if he performed the duties of inspector (as our petitions allege).
    Judge Scofield in that case said '“that the change in the inspector’s title” was made “as if to escape the provision of section 2733 at a less rate than §3 per daju”
    There is no need to guess at the object in view in the cases now before the court. The object was a violation of the civil-service law, the salary of $840 per year bringing the compensation under the sum of $900 covered by that law and the regulations in pursuance of it. Even the paj' of $2.50 per dav, the lowest given under any of the above acts, would just exceed that stun. This rdolation of law was continued by both political parties, and was not corrected until recently. . Aside from this violation and its object, there is abundant reason against the change. If the contract is for employment by the ,year, the Government may be compelled to a pa3'ment which was not contemplated. On the other hand, the change may deprive the incumbent of rights to which a per diem pay entitled him. As an illustration, Congress by joint resolution dated January 6, 1885 (Yol. XXIII, Stat. L., p. 516), provided that all per diem employees of the Government shall be allowed Christmas, New Year, the Fourth of July, and Thanksgiving darns as holidays, “and shall receive” “the same pay as on other days.” An annual salary would deprive the surveyor’s watchmen of this privilege.
    4. The Government relies upon the Garlinger case. The facts and the contention in that case differ widely from those now in controversy, except that in one of the pending suits, viz, that of Seth, a portion of his claim has some, but not all, of the features of Garlinger’s.
    Garlinger’s claim was for a double duty performed; the compensation asked was for serving both watches, and it was really a question of the right to be paid for overtime.
    The present suits are for the difference between the sum actualty paid and that attached to the office of night inspector— nothing more and nothing less. The duties of this office, it is admitted, were performed by every one of the claimants as set forth in their petitions. These also allege that they were assigned to and performed such duties, and were entitled to the pay of night inspectors, which was three dollars per day, but that the Secretary of the Treasury, on the recommendation of the collector, abolished that office and created a new one, called 'by him “surveyor’s watchman,” to which each of them was appointed; and the compensation was changed from a per diem to a salaried one at $840 per annum. That they were thus paid, the result being to take them out of the classified or civil-service class, which, was the object of the change, and that these proceedings were unauthorized, illegal, and void.
    The defendants assert for the Secretary the right to reduce the pay of inspectors of customs, but does not pretend that any such order was ever issued. In fact, the attempted abolition of the office of night inspector at the port of Philadelphia contradicts such an assumption. The court is asked by defendants to reverse its opinion in the Adams and Bradford cases that “the law created the office” of night inspector, and to xiphoid the new and startling doctrine that an office established and recognized by law can be abolished otherwise than by the lawmaking power. It is further virtually contended that legislation concerning the offices of the Government can be evaded by subordinate officials merely giving them a different designation to what is written in the statute.
    5. Finally', the defendants rely upon the acceptance by claimants of the salary the collector and Secretary chose to assign to the “new office” which they attempted to create.
    A like contention was overruled in the Adams case. There the claimant had signed a receipt in full for compensation at the reduced pay “allowed by the collector and Secretary.” This court said: “We do not think he thereby' relinquished his right to claim the further compensation allowed by' law. The appointing officer had no right to exact such a receipt, and the claimant lost nothing by' signing it. ”
    In Fisher v. The United States (15 C. Cls. R., 330) the question was, what compensation the law attached to the office, and the court said: “We give no force to the fact that the claimant received the reduced rate without objection. He was entitled to the compensation which the law attached to his office, and the defendant’s liability' could not be discharged by paving a less sum, even though he had executed a receipt in fuil.”
    Mo case hitherto in which this question arose involved the danger presented here. Generally' the decision, one way' or the other, affected only' the sums in controversy' upon the par-tic ular contract before the court. Here, as petitioners aver, the object in view (and it was attained) was to evade an act which affects the general power of appointment to office, and very' largely' the patronage of the Government. The court will frown upon an attempt to evade the force of any law. Claimants, it is true, may waive a right which affects only themselves, but they are not privileged to set aside a system which affects the people at large.
    An agreement or assent to a smaller pay for an office which is thus taken out of a class known as the civil service and requiring examination is vicious and will not be upheld. If accepted in a single case, the door will be open to all who are desirous of a like result.
    
      Mr. George II. Gorman (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
    Before one can recover the salary attached to an office he must prove a legal title to that office in himself. He must stand or fall upon his legal title — just as much so as the plaintiff in an action of ejectment. He must bo an officer de jure. The mere fact that he is an officer defacto, performing the same or similar duties, is entirely immaterial.
    These doctrines arc axiomatic. They have often been announced by this court. The leading case is that of Romero (24 C. Cls. R., 331). (See also Dorsey v. Smith, 28 Cal., 25; Stratton v. Oidton, 28 Cal., 51; Morton v. Herman, 30 Bari)., 193; Bennetds Case, 19 C. Cls. R., 388.)
    The very precise question which is presented by the contention of the claimants in the case at bar was determined by this court, in 1889, in the case oh Belcher (34 C. Cls. R., 400-422).
    As to the contention made in this case that the appointment of these persons as surveyor’s watchmen at a reduced compensation was a device to evade the civil-service law, it is sufficiently disposed of by the fact that not a scintilla of proof is offered in substantiation of such a claim. No deposition has been taken in support of it and no evidence whatever is offered to substantiate it. On the contrary, the record furnishes evidence, which has in no wise been contradicted, that the persons appointed as surveyor’s watchmen had stood the civil-service examination and were selected from the eligible list. In addition to this, the presumption is that public officers do as the law and their duty require them, and the presumption is always in favor of the correct performance of his drdy by an officer. (Lawson on Presumptive Evidence, 52; Throop on Public Offices, sec. 558.) In the absence of evidence to the contrary, this presumption will prevail, although of course it is not indisputable and majr be overcome by countervailing evidence. It will not be extended, for example, so as to make it cover substantive independent facts which are the incidents to official duty (United States v. Boss, 92 U. S., 281), but if a public officer be charged with doing that which he ought not to do the presumption will have the effect to throw the burden of proof on the party so charging him. (Bruce v. Holden, 21 Pick., 187; Glapp v. Thomas, 5 Allen (Mass.), 168.)
    If this was an unlawful appointment, then it was a void appointment, and if there was no such office permitted or recognized by the law, then manifestly there could be no salary attachéd to that office, and consequently the claimants Avere not entitled under the law to anything for the services Avhich they rendered, and every dollar that has been paid to them has been unlaAvfully paid and may be recovered back by the United States in a suit against them. It does not fol-Ioav, as claimants’ counsel seems to suppose, that because a man is appointed unlawfully to an office or to an office which does not exist therefore he is entitled to recover the salary attached to some other office the duties of which are the same or similar to the ones which he performed under his illegal appointment.
    Burnside, in common with all night inspectors, was appointed by the Secretary of the Treasury — and the power to appoint necessarily carries with it the power to remove. The case of this claimant presents to the court precisely the same question which it had before it in the recent case of Dearie (36 C. Cls. R., 5).
    Night inspectors are appointed by the Secretary of the Treasury at the nomination of the collector of a port. They are inferior officers, and their remoA^al from office necessarily and inherently resides in the appointing power, to wit, the Secretary of the Treasury. Their appointment or removal is a matter of administrative discretion inherently lodged in the head of the Treasury Department, as well ns expressly conferred upon him in section 249 of the Revised Statutes. Any attempt on the part of the courts to interfere with this executive discretion could result in nothing but mischief, and is a power which the courts do not possess and will not exercise.
    This is not a case in which the appointing power has appointed a man to an office created bj^ law and whose duties and compensation are fixed by law at a rate of salary less than that which the law has attached to the office; and therefore the recent decision of the Supreme Court in the case of Glavey nor the decision of this court in the case of Adams (20 C. Cls. K.., 117), nor any kindred decision to the effect that where the office is created by law and its duties and compensations defined the appointing power has no authority to either increase or diminish that compensation, is not in point. The claimants in this case were never appointed to the office of night inspector at any rate of salary. They were appointed to the office of night watchman at a designated compensation. They accepted that appointment and were very glad to get it. Throughout all the years of their service they received this compensation from the Government - without protest, without objection, and without at any time during all the period of their service ever asserting or oven intimating that they regarded, themselves as entitled to a higher rate of compensation, or in anj' wise informing the Secretary or any of his inferiors of the slightest dissatisfaction on their part with the compensation which was being-paid them. Under such circumstances it is perfectly, clear that in the interests of good morals and common honesty these claimants are estopped from voicing this demand. {Dearie v. The United States, supra)-, Chisolm v. United States, 27 C. Cls. K.., 94; United States v. Qarl/mger, 169 U. S. K., 316.)
    It was upon the same undertying principle that the Supreme Court of the United States recently decided against the claim of an entryman for the repayment of one-half of the purchase, money of public lands upon the ground that the payment was a voluntary one, made without protest or objection and without coercion or duress, and hence could not be recovered back. {United States v. Edmonston, 181 U. S., 600.) Surety if the courts have no jurisdiction, as was decided in this case, to entertain the claim of a person for money voluntarily paid, they are equally inhibited, and by the same token, from entertaining the claim of a person for services voluntarily rendered.
    The abolition or discontinuance of the office of night inspector and the creation of the office of surveyor’s watchman was the lawful exercise of a discretion vested in the Secretary of the Treasury by general law in and about the collection of customs or duties on imports. (Sections 248, 249 of the Revised Statutes.)
    Manifestly, under this statutory authority the Secretary of the Treasury has plenary discretion as to the manner in which he shall superintend the collection of the duties on imports and tonnage, unless such discretion has been subsequently limited by statutory enactment.
    As a limitation upon such discretion the claimant’s attorney relies upon section 2733 of the Revised Statutes and upon the decision of this court in the case of Adams (20 C. Cls. R., 115). But neither this statute nor this decision is authority for the contention made. This statute, so the court held in the Adams case, creates the office'of inspector of customs, defines its duties, and fixes its salary, and therefore the Secretary of the Treasury could not increase or diminish the compensation of that office. But the office of inspector of customs and that of the so-called night inspector are two very different things. An inspector of customs is really an inspector who has very important duties to perform in and about the superintendence of the collection of the revenue upon imports and tonnage.
    A night inspector, however, is not an inspector of customs at all, but a mere watchman. His duties are defined on page 562 of the above-cited General Regulations under the customs laws for the year 1884.
    Section 2738 of the Revised Statutes is also relied upon, but this statute is likewise unavailing.
    Here again wo see that it is the office of inspector of customs that is recognized, and not the position of night inspector or night watchman. These claimants were not employed as aids to the revenue within the meaning of that expression as used in this act. The whole of the language of this statute must be construed together, and before a person can be said to be employed, in aid of the revenue it must first be shown that he performed the duties of an inspector of customs.
    The act of March 3, 1881 (1 Supp. Rev. Stat., 321), upon which the claimant’s attorneys also rely, not only does not bear out this contention, but conclusively proves the contention of the United States.
    The contention is made in this connection, however, that although this section of the Revised Statutes permits the Secretary to employ an inspector of customs at a less compensation than §3 per day it does not permit him to employ such inspector at any yearly rate of compensation. What is the difference between employing a person at a compensation of $840 per annum and employing the same person at a compensation of $2.30 per day? In the case of Harrison v. United States (26 C. Cls. R., 259) the Court of Claims had no hesitation in transposing $3.20 per day into $998.40 per year, and it is difficult to see why the converse of this proposition is not equally true.
    The only other act relied upon is the act of June 10, 1880 (1 Supp. Rev. Stats., 292). This act likewise signal^ fails to bear out the contention.
    The court will observe that the statute refers to inspectors of customs, performing the duties of inspectors of customs in the nighttime instead of in the daytime. The act has no relation whatever to a mere watchman.
    All the statutes relating to this subject are in pari materia, and under a familiar rule of statutory interpretation thejr must be all construed together and made to harmonize. No subsequent legislation upon this subject can be regarded as an implied repeal unless the provisions of the later act are so hopelessly m conflict with the former act that the two can not possibly stand together; and if there is any possible construction which the court can place upon the latter act so as to make it harmonize with the former one, it is the duty of the courts to adopt such construction (United States v. Healey, 160 U. S., 136, 147; Frost v. Wenie, 157 U. S., 46, 58). Under this familiar doctrine of statutoiy construction the courts must give to all the various acts which I have cited such a construction as will make them harmonize with the provisions of section 249. This is easily done, for there is not the slightest antagonism between the various statutes, and the Secretaiy of the Treasury still possesses that plenary discretion given to him by said section 219. These claimants have not been employed as inspectors of customs at all, but as surveyor’s watchmen, at a salary which the Secretary of the Treasury deemed just and reasonable. This he had full power to do under the provisions of section 219 of the Revised Statutes, and even if he had called them inspectors of customs and paid them the same compensation he would still haA'e found ample authority for so doing under the act of March 3, 1881, supra.
   Howry, J.,

delivered the opinion of'the court:

Ninety-four persons, known during their respective terms of service as surveyor’s watchmen at the port of Philadelphia, bring these actions, in sums aggregating $67,016.92, to recover the difference between the amounts they received at $810 per annum as watchmen and the amounts they now claim they were entitled to receive as night inspectors at $3 a day for the time they are shown to have continuously served.

During the years 1881 and 1885 there was at the port a force of men on duty known as night inspectors. They were paid $3 a day under a statute which authorized that amount of pay, and were appointed by the Secretary of the Treasury, with duties prescribed by regulations. In December, 1885, means were taken to remove this force by abolishing their places as vacancies occurred and substituting therefor a new force known as surveyor’s watchmen, at an annual compensation of $810 to each person. From December 11,1885, until August 5, 1886 (which period covered the time taken to change the entire force), there was at the poi't a force of surveyor’s watchmen and night inspectors, all performing the same duties and on the same pay rolls, the surveyor’s watchmen receiving pay at the rate of $810 per annum and the night inspectors $3 per day. The forms used by the Treasury Department for night inspectors’ reports were not altered from those used in the year 1881 except that at the port of Philadelphia in 1889,1890, and 1891 the words “surveyor’s watchmen” were stamped upon them. The surveyor’s watchmen appointed from time to time include all the petitioners, who, during their periods of sendee, performed no other or different duties from those performed by night inspectors. This condition of affairs continued until appointments of night inspectors by that name were again made in 1895.

The character of the duty performed bjr the persons called night inspectors and surveyor’s watchmen was to keep watch over vessels to prevent the landing, between sunset and sunrise, of merchandise from such vessels unless by proper authorhy and under the supervision of a day inspector, and to protect bonded stores from robbeiy or the unlawful removal of merchandise from any wharf or other place on which same may have been deposited.

Though the petitions are separate, the facts are the same in all the cases except one, and, that one offering no substantial difference, the actions have been tried together, though not consolidated.

In the exceptional case of William Burnside it appears that he was a night inspector at the time of the order which put the other petitioners on the same kind of duty under a different name; and without being removed he continued to perform the same duty as a surveyor’s watchman that he had previously performed as night inspector, but at the reduced compensation.

The questions presented relate to the right of the Secretary of the Treasury, under the civil-service act, to remove a force called night inspectors and to substitute another force designated as surveyor’s watchmen in their stead; his authority under the revenue laws, to displace officials known as night inspectors, appointing watchmen to take their place, but discharging the same duties, and withholding the per diem compensation theretofore paid to night inspectors, and placing the compensation of the persons so substituted upon an annual basis carrying smaller pay; Avhether plaintiffs can recover the salary of night inspector, if any such office existed, for want of appointment thereto; and, finally, whether they are estopped from claiming the difference between the amounts they received as annual salary and the amounts they may have received had they been commissioned as night inspectors upon the per diem basis.

Respecting the removal of the original force, the petitioners saj* tbe change in designation from night inspectors to that of surveyor’s watchmen was in violation of law, because its object was the taking of the office from the classified service, which was continued and carried out by their appointments to the unclassified service.

Whatever may have been the underlying causes of the recommendation of the collector of the port for the change, the record discloses that it was determined to abolish the places of officials designated night inspectors and to substitute the new class as vacancies occurred, upon the ground that the change would reduce the expenditures of the Department many thousands of dollars, as shown by the report of a special agent. .The'new places were filled from oligibles on the civil-service list. As the men were selected they went into the service upon examinations. There is no proof contradicting the official record that the Secretary made the order to improve the public service.

Without something more than surmise and suspicion wo can not presume that the change was what the petitioners now think it was. The presumption is always in favor of a correct performance of his duty by an officer. (Throop on Public Offices, section 558.) This presumption must prevail unless overthrown by evidence, which has not been done.

If the order which accomplished the remoA'al of the night inspectors was illegal, we are unable to see how an inquiry into the removals can now avail petitioners. If they were beneficiaries of the order which put them in the service, but did not give them enough to make the fraud of the Secretary, as they call it, a complete success, an earlier complaint of the illegality’ of the order may have been tenable on behalf of those who were removed, but not now for those who claim for the first time that they were illegally appointed.

But it is argued that as the night inspectors were removed petitioners became entitled to the same pay as the persons who were removed; that their appointments were really to an office known as that of night inspector, which carried a fixed daily pay, and that the Secretary was without authority to take from them per diem pay and put them upon an annual compensation carrying less pay, and that in any event they were entitled to bo paid the samo as regular inspectors of customs, independent of the question of their title to the office of night inspector.

On the other hand, the defendants insist that Congress have only recognized the office of inspector of customs created bjr the Secretaiy of the Treasury, and that there is no provision that thojr must bo emplo3md or that the duties of the office shall not be changed or that the positions shall not be abolished or discontinued and other positions created. In any event, they say the office of inspector of customs and that of night inspector are two veiy different things; that an inspector of customs — quoting the regulations—

“has to do not only with the collection of duties on imports, but also with violations of the internal-revenue and navigation laws; that they not only examine the cargoes of vessels, but the vessels themselves, and are required to wear a uniform and a badge of office, with power of arrest; to make examinations of American vessels; to examine and secure with seal the hatches and openings of all vessels from foreign ports; to discharge vessels when so ordered by surveyors, and to report daily ail vessels arriving and to supervise the shipment of goods in bond; while a night inspector is not an inspector of customs at all, but a mere watchman, whose duties are to preArent smuggling by keeping watch over vessels when in their custody, to prevent landing at night any merchandise from such vessels unless by proper authority and under the supervision of a day inspector, and to protect the bonded stores from robbeiy or unlawful removal.”

The effect of the statutes upon the power and authority of the Secretary to employ the petitioners as he did, and to discriminate against them in the matter of pay, circumscribes the inquiry within very narrow limits.

Section 2á8 of the Revised Statutes provides that—

“The Secretary of the Treasury shall, from time to time, digest and prepare plans for the improvement and management of the revenue and for the support of the public credit; shall superintend the collection of the revenue; * * * shall grant, under the limitations herein established, or to be hereafter provided, all warrants for money to be issued from the Treasury in pursuance of appropriations by law; * * * and generally shall perform all such services relative to the finances as he shall be directed to perform.”

Section 249 provides that—

“The Secretary of the Treasury shall direct the superintendence of the collection of the duties on imports and tonnage as he shall judge best.”

Section 2627 recognizes, as a part of the machinery of the custom-house, inspectors, weighers, searchers, gaugers, and laborers. All inspectors are authorized to seize goods for violation of law, and required, under section 15 of the act of June 22, 1874, to send to the public store all goods taken by them for violation of law.

Section 2733 provides that—

“Each inspector shall receive, for every day he shall be actually employed in aid of the customs, S3; and for every other person that the collector may find it necessary and expedient to employ, as occasional inspector, or in any other way in aid of the revenue, a like sum, while actually so employed, not exceeding §3 for every day so employed. ”

Section 2733 -was amended by an act approved June 20, 1878 (20 Stat. L., 217), so that such inspectors employed for service at night should be paid S§2.50 for each night.

Under an act approved June 30, 1880 (1 Supp. Rev. Stat., 292), entitled “An act to regulate the compensation of night inspectors of customs,” we have the first mention made in any statute of night inspectors. This act authorized the Secretary of the Treasury to increase the compensation of “inspectors of customs employed under existing law for service at night” to a sum not exceeding $3 for each night’s service; but the character of this service is not defined in the body of the act so as to indicate what constitutes a night inspector. Where the mind labors to discover the design of the legislature it seizes anything from which aid can be derived, and in such case the title claims a degree of notice. (United States v. Fisher, 2 Cranch, 387.)

The title of this act, however, throws but little light upon the subject. While it does recognize “inspectors of customs under existing law for service at night,” there is nothing in the title any more than in the context of the act to indicate whether the officials described are those who must actually inspect as day inspectors inspect — alike in rank, authority, duty, and pay — or whether they are, in custom-house nomenclature originating in regulations, merely guards performing similar duties to those of watchmen.

But assuming that there was such an office as night inspector, with duties different from those of inspecting goods in the daytime, and that petitioners performed the duties, respectively, of that office under the designation of surveyor’s watchmen, they were all employed subsequent to the act of 1880, supra, and an act approved March 3,1881 (1 Supp. Rev. Stat., 321), which provides, in section 2, “That hereafter the Secretary of the Treasury may appoint inspectors of customs at a compensation less than S3 per day when, in his judgment, the public service will permit.”

Petitioners admit that the Secretary might at discretion have given them as inspectors per diem pay at less than $3, but claim the rule of payment to be by the day and not by the year; that when the contract is for employment by the year the Government, in such cases, may be compelled to make payments not contemplated, and that the change might have the effect of depriving inspectors of rights to which per diem pay might entitle them.

If petitioners were inspectors the terms of their employment were irregular under the acts authorizing compensation by the day. But we are unable to see how the Government can be compelled to make payment for unearned service or be injuriously affected by an arrangement which contemplates service with pay for a longer period than a day, when it is considered that an office can be abolished by proper authority at any time. When the duties of employees of the Govern ment come to an end proper means are seldom, if ever, wanting in discontinuing unnecessary employment without liability for unearned pay. Danger to the interests of the Government as the result of irregular methods of employment can not arise where the equivalent of per diem compensation is given on a yearly basis.

The only reason assigned that a change from per diem pay to annual compensation would injuriously affect employees is that the incumbents may be deprived of holidays. Inasmuch as those employed by the year are entitled to holidays while employees by the day are not always so entitled, the yearly employees have the advantage of continuing service for a longer period, which leaves them no room to complain.

In Harrison v. United States (26 C. Cls. R., 259) the reasons for transposing 13.20 per day into $998.40 per year are satisfactory. The converse of this proposition seems to be equally true.

It' appears that the rate of pay for inspectors had been fixed by the Secretary of the Treasury at $3 a dajr before petitioners entered the service as watchmen. This discrimination against them raises an issue under another statute.

Section 2738 provides:

“That all aids to the revenue, or others performing the duties of inspectors of customs in any collection distl’ict, shall be paid the same per diem compensation as inspectors of customs.”

This section must be considered in all its parts. The opening sentence can not mean that all “aids” to the revenue, not being persons performing the duties of inspectors, must be paid the same as inspectors, because a construction which ■would literal^ include aids of all kinds would cover officials who are paid more by law and laborers who are paid less bjr regulations. The statute rejates to all such aids to the revenue as others performing for the time being the duties of inspectors of customs. Petitioners were persons standing guard over goods at night to prevent removal, without authority to inspect the contents of the packages which they Avere engaged to watch. Such persons are night Avatchmen to preArent smuggling. (Art. 410, Customs Reg., 1883.) Their duties are to keep goods in place, but not to examine invoices or inspect stores, nor yet to make appraisements or determine anything respecting dutiable articles. Their obligations as guards involve responsibility and the exercise of vigilance, but not the same degree of intelligence or education as those Avho are required to examine packages and invoices, make appraisements, and collect reA'enue.

Again, if this section is a limitation upon the power to pay petitioners as they Avere paid (eAren though the regulations may not accurate!}" describe their status), then it displaces whateArer general authority the Secretary of the Treasury had under section 249, supra, to direct the superintendence of the collection of duties on imports as he shall judge best, and also the general power conferred by the act of 1881, supra, to pay inspectors at discretion, “ when the public service permits.”

Section 2138 must be taken within its limits and construed in connection with the discretionary authority conferred by other and subsequent statutes. These statutes are in pari materia and must be reconciled if possible. If they can not be made to harmonize, then the general provision conferring administrative discretion should prevail. Thus where there is a general provision and there are also certain specific provisions and limitations found in earlier statutes, the last statute becomes the exclusive law of the case. (Eckloff v. District of Columbia, 135 U. S., 240.)

If petitioners held title to statutory positions as thejr now claim, the Secretary of the Treasury had the right to regulate their compensation below $3 a day under the general authority given by law to him for that purpose. The act of 1881 would bo a nullity if it did not embrace the right of the Secretary to pay different per diems to inspectors below §3 a day at discretion. This would include the right to pay watchmen at discretion likewise within an equivalent of that per diem rate of pay.

Where the law has authorized the exercise of discretion or judgment the courts can not guide and control the judgment and discretion of the administrative departments of the Government in matters committed to their care. (Decatur v. Paulding, 14 Pet., 497, 515; United States ex rel. Dunlap v. Black, 128 U. S., 40; United States v. Schurz, 102 U. S., 378, 396; Boynton v. Blaine, 139 U. S., 306; Redfield v. Windom, 137 U. S., 636; Keim v. United States, 177 U. S., 293.)

Petitions dismissed.  