
    DIXON N. GARLINGER v. THE UNITED STATES.
    [No. 16312.
    Decided March 18, 1895.]
    
      On the Proofs.
    
    The Treasury Regulations pirovide that night inspectors in the Customs Service “shall he divided into two watehesf’ “both xoatohes to ‘perform duty every night;" and that when it is necessary for a night inspector to perform duty all night, “he mil be excused from performing any duty the following night." In the port of Baltimore the night inspectors are not so excused, but are required to serve from sunset to sunrise and until relieved.
    I.The law of master and servant has a certain elasticity not to he found in the law which regulates other contracts. The servant can not charge the master for overhours, nor the master the servant for lost time. But the variations from the letter of the contract must relate to trivial things. A servant who has agreed to render one lcind of service can not be required to render another nor to do double duty.
    II.Requiring a night inspector to perform, duty through two watches in one night, when the regulations prescribe one watch as a day’s work, is too gross a deviation from the terms of the contract to be sustained by the law of master and servant.
    III. The Treasury regulations, prescribing the duties and watches of night inspectors, have the force of law and regulate the service and hours of service.
    IV. The compensation of a public officer is not regulated or limited by the law of master and servant, and where fixed and certain can not be diminished by official authority.
    V.A daily pay implies a daily service, and when regulations having the force of law prescribe what the daily service shall be, it becomes as complete a thing with reference to the daily pay as a year’s service is with reference to an annual salary. Therefore, a night inspector who is required to perform duty through two night watches when the regulations prescribe one as his daily service is entitled to pay for both.
    
      
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court after being amended under a motion. See same case, post:
    
    I. Tbe claimant, a citizen of tbeUnited States, was appointed by tbe collector of tbe port of Baltimore a nigbt inspector in tbe customs service at Baltimore in 1882. He toot tbe oatb of office and entered upon tbe discharge of tbe duties of nigbt inspector of customs on April 1,1882, and continued in office until August 25,1886, a period of 1,608 days.
    II. During tbe above-named period tbe claimant was paid for 1,608 days, of wbicb payments 1,353 were for nigbt service when be was present rendering actual service, and 255 were for nigbt service when be was absent and off duty.
    III. During tbe 1,353 days of nigbt service tbe claimant was required to perform duty as nigbt inspector from sunset to sunrise and until relieved by tbe day inspector, tbe length of tbe nigbt service consequently varying, and sometimes extending from 5 p. m. of one day until 10 a. m. of tbe succeeding day. During this time tbe claimant was not allowed to be off duty on tbe succeeding nigbt, after having been on duty two watches, except in tbe 255 instances set forth in finding n, when be was off duty and received pay — that is to say, be performed tbe duties of both tbe first and second watch on 1,098 nights without additional compensation and without being allowed to be off duty on any alternate nigbt.
    IY. The petition not having been filed until August 24,1888, 144 days of tbe number last above stated are barred by tbe statute of limitations, leaving 954 days as tbe subject of tbe present suit.
    Y. Tbe claimant objected to his superior officer, tbe surveyor of tbe port, against bis being required to perform tbe duties of both watches in one nigbt without being excused from tbe performance of duty on tbe following nigbt, and be subsequently remonstrated at various times.
    YI. At the time of bis entering tbe service as nigbt inspector be was furnished by bis superior officers with a copy of tbe regulations promulgated by tbe Secretary of tbe Treasury for bis governance and defining bis duties. It was customary for tbe surveyor of tbe port to furnish such regulations to inspectors and others at tbe time of their entering tbe customs service. The regulations hereinafter quoted were among those so given to the claimant.
    VII. The Laws and Eegulations for the Government of Officers of Customs under the Superintendence and Direction of Surveyor of Ports, 1877, were issued by the Secretary of the Treasury to the custom-house authorities of all ports, including the port of Baltimore, and were in operation in all of the principal ports except Baltimore, in which the practice of the port at the time of the claimant’s appointment was not and had not been in accordance with the requirement of the regulations making two night watches and relieving the first watch at midnight. There the surveyor of the port had always required the night inspectors to serve from sunset to sunrise.
    VIII. The following are among the regulations given to the claimant when he entered the service, above referred to:
    “ Abt. 420. The night watchmen shall be divided into two watches, as nearly equal as possible, both watches to perform duty every night. The surveyor of the port will, however, make such changes in the division of the watches as he may deem expedient, and will appoint the hours of duty for the different watches.
    “ Whenever it is necessary to assign a night watchman to a vessel, or to any other ‘ all-night’ charge, the night watchman so assigned must remain on the vessel, or on his charge, until relieved, and he will be excused from performing any duty the following night.
    “Night watchmen must not quit their charge on being-relieved without first making their presence personally known to the officer relieving them. Night watchmen when on duty must wear their official badge.”
    IX. In the Laws and Eegulations for the Government of Customs Inspectors, Weighers, Gaugers, and Measurers, etc., 1683, on pages 126,127, there is the following:
    “ A_bt. 407. The lieutenants, if there be any, shall be on duty at such time and place as may be provided by the surveyor, to supervise the signing of the roll by the night inspectors as they report for duty; to assign to duty those who are present to the respective stations and charges; to make out a list of charges for the night inspectors of each watch; to note and report to the captain those night inspectors who report late or who are absent from duty, and.to obey such orders and perform such duties as may be required of them by the captain of the night inspectors. The lieutenant in charge shall remain on duty until sunrise, or such hour as shall be prescribed by the surveyor, and should any vessel arrive during the night or any call be made for a night inspector, he will make the necessary assignment of a night inspector thereto.
    “ART. 408. The report of each night (Oat. No. 916), showing the station or charge to which each night inspector reporting for duty was assigned, and also showing those who were late, absent, sick, etc., having been first signed by the captain and lieutenant on duty, shall be delivered to the surveyor.
    “Art. 409. The night inspectors will be assigned to duty by the captain of the night inspectors in such manner and in accordance with such regulations as may be directed and prescribed by the surveyor of the port, and as, in his judgment, may be best for the prevention and detection of frauds on the revenue.
    “Whenever it is necessary to assign a night inspector to a vessel, or to any other ‘all-night’ charge, the night inspector so assigned must remain on the vessel, or on his charge, until relieved, and he will be excused from performing any duty the following night.
    “Night inspectors must not quit their charge on being relieved without first making their presence personally known to the officer relieving them.
    “Night inspectors when on duty must wear their official uniform and badge, except when, by authority of the surveyor, •the wearing of the uniform aud badge, or either, is omitted for the purpose of more effectually preventing or detecting fraud.”
    Catalogue No. 916, referred to in article 408, is as follows:
    Catalogue No. 916.
    
      
    
    
      On page 166 of Laws and Regulations, etc., 1877, there is the following:
    
      Night watchman’s report for - night, -, 18 — . Reporting officer,
    
      -} captain of the watch.
    
    
      
    
    
      Mr. F. P. Dewees (with whom were Messrs. Dudley <& Miehe-ner) for the claimant.
    It will be seen that in all the regulations, which, like laws in pari materia, should be construed together, an “all-night” service by one man is regarded as two days’ work “ actually performed.”
    This is exemplified at manufactories, mines, and furnaces. The day is frequently divided into three “shifts” or periods. 'When a man works two “ shifts” he is entitled to pay for two days’ work. When a person is entrusted with an office, the Government is entitled to the time required or fixed to perform such duty. He may perform other duties, and still be paid. He may, under certain circumstances, hold two offices, or do other work, and be entitled to the salaries or compensation due to both. (Oollins, 15 C. Cls. R., 22; Landram, 16 id., 83; Hedrick, 16 id., 38; Hartson, 21 id., 451; Bortolett, 25 id., 389; Converse Case, 21 How., 463; Saunders Case, 120 17. S., 126.)
    It is well settled that regulations issued by the chief officer of an Executive Department in accordance .with law have the force of law. When Congress permits the order of an executive to be formulated as regulations and published, when published and carried into effect the legislative ratification must be implied. (Maddux Case, 20 O. Gis. R., 193; Stotesburry Case, 23 C. Ols. R., 292; Fx parte Seed, 100 H. S., 13; Gratiot v. United States, 4 How., 80.)
    
      Nor is there any conflict in Harrison’s Gase (26 C. Cls. K.., 259) with the principle upon which the claim is made in this case. On the contrary, the rule is recognized that when a day’s work is fixed by regulation of an Executive Department, made in accordance with law, and compensation for a day’s work fixed by law, that compensation shall be made at that rate.
    Claimant rests his claim upon the fact that he was employed at a specific amount per day when actually employed; that all-night service as an inspector, in all customs ports of the United States, is recognized by regulation of the Treasury Department and custom as two days’ service, and that he has rendered 1,332 days’ service for which he has not been paid, and for which he is entitled to be paid at the rate of $3 per day.
    
      Mr. Samuel A. Putnam (with whom was Mr. Assistant Attorney- General Dodge) for the defendants.
    Claimant bases his right to recover on the alleged fact that each twenty-four hours he was compelled to perform two days’ service and was only paid for one. In defining what constitutes a day he relies wholly upon the regulations of the Treasury Department in regard to night inspectors. That the printed regulations of the Treasury Department directed that the night inspectors should be divided into two watches and each, watch be on duty for only about half the night is true, but this must have been subject to the discretion of the collector and surveyor of each port in a large measure. ' The exigencies of the service make this necessary. The same rules for governing these officers could not possibly be put in force in a very large port and a very small port.
    So far from their having been kept on all-night duty contrary to the regulations of the Treasury Department they were kept there in obedience to the real regulations of that Department, as shown by the number of inspectors allowed for that port and the amount of work which they were expected to perform. The printed regulations w;ere not a part of the contract between this inspector and the Government, because he knew before he accepted the service that the hours prescribed in the regulations were not observed at that port, and in accepting the service he agreed to work the number of hours which were usual for officers of his class.
    
      But even if the court should hold that the printed regulations, and not the customary practice at that port, should be considered in determining how many hours claimant agreed to work each day when he entered the service, 1 still contend that there is nothing in those regulations which gives claimant the right to double compensation or any extra compensa-, tion. These regulations, if they have any other force than mere directions or suggestions to the collector and surveyor of the port, can certainly have no greater force than the leave of absence statutes (24 Stat. L., 91 and 352), construing which this court said in Ramson’s Case (26 C. Cls. B., 259):
    “The statutes do not affect the credit side of the account; they do not say that a man shall be credited with more days than he was formerly credited with, but that he shall not be charged with so many absences. The present suit is an attempt to disturb the wrong side of the account. It is not brought to compel the Public Printer to grant full leaves of absence, * * * but to compel the accounting officers to credit the account with four or five more working days than there are in a year, etc.”
    The court in that case adds that it is impossible that this should have been the legislative intent. In this case the regulations in question could not have had any other purpose than to secure to the inspectors shorter hours of duty, thereby increasing their efficiency. This purpose would certainly nob be accomplished by doubling both the hours of duty and the compensation. In this case, as in the Harrison Case, whatever rights claimant had under the regulations should have been asserted against his superior officers at the port and not against the accounting officers of the Treasury.
   Nott, J.,

delivered the opinion of the court:

The law of master and servant has a certain elasticity not to be found in the law which regulates other contracts. The servant can not charge his employer if he works overhours within the sphere of his proper employment, and the master can not charge the servant with lost time where he falls short in his hours of labor. The remedy of the one is to discharge and of the other to stop work. So long as they allow the relation of.master and servant to continue, so long trivial deviation from the right line of the contract will not receive the aid or countenance of the law. This element of elasticity was doubtless introduced into the law of master and servant for the peace and harmony of society. It is a wise rule which enables both parties in a' continuing relationship to know at any time just where they stand. If it were not so, the one might spring upon the other an account for short hours at the end of the year, and the other might present a bill for numberless unknown items of overtime, and endless petty conflicts would take the place of peace and harmony.

The law of master and servant goes still further than this. It requires the servant (and this notwithstanding an express agreement or a statutory regulation) to render service overhours in cases of emergency without additional compensation, and it even makes his refusal justifiable cause for discharge. That is to say, where a man agrees to work only ten hours a day and the master, in a proper case of emergency, requires him to work twelve, and he refuses, the master can treat the refusal as a violation of the contract and put an end to it.

But these cases of allowed deviation from the contract are nevertheless guarded by careful limitations. The additional service of the servant must be within the sphere of his ordinary employment. If required to do something entirely different from that which he was hired to do, he has a right of action. Thus, it is said, a clerk can not be required to carry mortar ; a ladies’ maid can not be required to milk cows; a saddler can not be required to cook; a farm laborer can not be required to serve as a household servant. So, if the servant renders additional service in the line of his own proper employment, but against his objection, and at the special request of the master, he can recover for it. So, too, his additional service, though not a good cause of action per se, will support a promise to pay, and he can recover on it.

These cases illustrate the care of the common law to guard the peace and quiet of the domestic relations, and to exclude the vexation of litigation from the ordinary daily affairs of life. But these variations from the letter of the contract all relate to trivial things. The law of master and servant does not compel a man who has agreed to render one kind of service to render another, nor one who has agreed to do one thing to do two. The departures from the contract which are countenanced must be trivial, ordinary, and reasonable, or rendered necessary by a minature vis major termed “emergency.”

If we regard tbe case before us as one of master and servant and tbe regulations of tbe Treasury Department as an express contract between tbe parties, and tbe day 'specified in tbis express contract as a single nigbt watcb running from sunset to midnight or from midnight to sunrise, it is manifest that tbe deviation of requiring tbe servant to serve from sunset to sunrise, of requiring one man to do tbe work of two men within tbe contemplation of tbe contract, is too gross a deviation to come within tbe exceptions allowed by tbe common law. Tbe regulations provide that two watches shall share tbe duty of tbe night, and that tbe second shall be on duty from midnight to sunrise and until relieved. Tbe relief often came late. But in tbis tbe regulations follow tbe common law, and for such additional service a nigbt inspector certainly can not recover. But that is a very different thing from requiring him to serve just twice as long as it was expressly agreed be should serve. •

If we regard tbe regulations as having tbe force of law and being in effect a statute regulating tbe particular employment, tbe case in tbe books nearest to tbis one is probably that of Bachelder v. Bickford (62 Maine R., 526), which we quote in extenso:

WALTON, J.:
“ When a contract to work in a gristmill at eight shillings per day, to be paid weekly, is silent as to tbe length of time that shall constitute a day’s work, tbe rule established by tbe statutes of tbis State, that ‘in all contracts for labor ten hours of actual labor shall be a legal day’s work, unless tbe contract stipulates for a longer time,’ is applicable (R. S., c. 82, sec. 36). And if tbe laborer works nights, after bis legal day’s work is done, at tbe request of bis employer, and for bis benefit, tbe law implies a promise on bis part to pay for such labor. Acceptance of pay for the day labor will be no bar to a recovery for tbe nigbt labor. It is true that tbe above rule is not applicable to ‘ monthly labor,’ nor to ‘ agricultural employments.’ But in our judgment work in a gristmill, at eight shillings per day, to be paid weekly, is not monthly labor nor agricultural employment.
“ Such, in effect, was tbe ruling in tbis casé. We think tbe ruling was correct.

It seems to tbe court that regulations of tbe Treasury issued under authority of law for tbe regulation of tbe service of nigbt inspectors in all tbe ports of entry in tbe United States and actually in force aud operation in all of tbe principal ports, except tbe port of Baltimore, have tbe force of law and take tbe place of tbe statute mentioned in tbe above opinion; and it also seems to the court that requiring an inspector of tbe first watch to render service through the second watch is analogous to the day and night service in the Maine case.

While we have referred to the law of master and-servant as furnishing analogies by which to determine in what cases additional compensation can and can not be recovered for additional service, it must be remembered that this is the case of a public official serving for compensation attached to an office by law. Tbe compensation of a public officer is not necessarily regulated or limited by the law of master and. servant. His salary or pay is generally fixed and certain. It can not be diminished by official authority, as in Sleigh’s Case (9 C. Cls. R., 369), where payment was withheld on account of sickness, or refused him because Congress had failed to appropriate the foil amount, as in Graham’s Case (1 Id., 380). Where a public compensation is a salary fixed by statute it ordinarily covers all the official service of the term of office; but in the present case the law designates no term of office and provides no salary. A daily pay implies a daily service; and when the regulations of a Department, having the force of law, prescribe what that daily service shall be, it becomes as complete a thing with reference to the daily pay as a year’s service is with reference to an annual salary. The night service of inspectors of customs is a peculiar thing and a proper subject for departmental regulation. When the authorities of the port of Baltimore required the night inspectors to go on duty sixty night watches in a month, while the regulations said they should be on duty only thirty night watches in a month, it is manifest that the inspectors should be paid for sixty of these units of service, and that when the Government paid for only thirty it was payingfor one man’s service where the regulations in effect provided that it should pay for two. If the Government had employed two inspectors to do the work of two, and had given to the inspectors on duty through two night watches, the alternate nights of rest assured to them by the regulations, the result in money would have been the same as that now reached by the decision of this case.

The counsel for tbe defendants has likened tbis case to Harrison’s (26 C. Cls. R., 259), and has argued that the credit to which the claimant was entitled was on the other side of the account; that he was not entitled to more-money, but to more rest, and that when he did not get the rest, which was prom ised him on each alternate night of all-night service, his only remedy was to resign. That might be true if the claimant had been employed by the month or year. But it is plain that during his period of employment, from the 1st of April, 1882, to the 2oth of August, 1886, he rendered service through 2,196 night watches, while the regulations at the same time required him to render it only through 1,098. The additional 1,098 were consequently additional service, for which he was not paid, and for which, in the opinion of the court, he is entitled to recover.

There are two other points in the case which should be noted.

The time when the claimant’s service as night inspector began was April 1,1882, but this action was not brought until August 24,1888. Consequently so much of the claim as accrued prior to August 24,1882, is barred by the statute of limitations. The defendants have hied no plea setting up the statute, nor moved to strike out this much of the demand; nor was the attention of the court called to this defense pro tcmto on the trial. But under the decision of the Supreme Court in Finn v. The United States (123 U. S. R., 227) this is a defense which the court is bound to notice. And in the absence of proof or explanation to the contrary, the court must assume that all of the nights between- the 1st of April and 24th of August, 1882, were nights of double duty, and the court, therefore, must exclude from the claimant’s recovery pay for 144 days.

The second point relates to a question of evidence.

The claimant has testified that he was on all-night duty, except when absent from sickness or other causes, for 1,352 nights. This is in a measure corroborated by the records of the Department, which show that he was recognized as on duty 1,353 days. The claimant does not specify the particular nights on which he did double duty; he kept no record, and obtained his figures by going to the record kept by the clerk of night inspectors and getting from it the number of nights for which he was credited with service. But it appears by the testimony of the surveyor of the port that when the number of vessels coming into port fell off, and the whole force was not required for duty, so many of tbe inspectors as were not needed would be excused; and it appears by tbe report of tbe deputy collector of tbe port to tbe Secretary of the Treasury (which we understand to be a statement for services paid for) that the.number of nights when tbe claimant was present and doing duty, during bis entire period of service, was 1,608, and tbe number be was absent 255. On these 255 nights, therefore? tbe presumption is, tbe claimant received what be was entitled to, and all that be was entitled'to, viz, pay with absence from duty; and tbe reason why be was entitled to pay with absence from duty was because be bad rendered double duty on 255 nights of tbe 1,608 nights in tbe other column. For these 255 nights of'double duty tbe claimant, therefore, is entitled to nothing; be received full compensation for them when be received pay for 255 other nights during which be rendered no service. Accordingly, 255 must be subtracted from tbe 1,353 of double duty, leaving 1,098; and from this number, 1,098, there must be subtracted 144, barred by tbe statute of limitations, leaving 954 for which be is entitled to recover.

Tbe judgment of tbe court is that tbe claimant recover 12,862.  