
    MARTIN’S CASE.
    (10 Court of Claims R., p. 276;
    — U. S. R., p. — .)
    Arthur Martin, appellee, v. The United States, appellants.
    
      On the defendants1 Appeal.
    
    
      A laborer in the Naval Academy is working twelve hoars a day, at $2.50, when tile eight-hour law is enacted. He is informed that the previous hours must be continued at the same pay, or he will be discharged. He continues as before, receives his pay and receipts for it without protest. The Act 18th May, 1872, passes, directing the accounting-officers to settle workmen’s accounts on the basis of eight hours. The claimant receives an allowance for a portion of his twelve-hour time’. He accepts and receipts in full for this without protest. During all of the time private employers in the same place are paying $2/or a day of Mvelve hours for the same services. The court below decides that the eight-hour law has no application to a special contract made since its passage ; that it does •not prohibit laborers from making contracts for nor from working more than eight hours, and that payment and receipts in full, without protest, bar a recovery. But the claimant having no appeal, and there being a class of similar cases pending, the court gives judgment pro forma for the claimant. The defendants appeal.
    
    I. The Mght-hour Law (Rev. Stat., §3738) declaring that “ eight hours shall constitute a day’s work for all laborers pr workmen ” “ employed by or on behalf of the Government ” is in the nature of a direction from a principal to his agent, in which a third party has no interest. It does not make a contract nor prevent officers from contractingby express agreement for days'. labor of more or less than eight hours.
    
      II. The Eight-hour Latv (Rev. Stat., § :?738) does not prescribe compensation.
    III. Where a laborer working twelve hours a day at the time of the enactment of the Eight-hour Law (Rev. Stat., § ’3738) is informed that if he wishes to remain in service he mast continue to work twelve hours, and he does so, accepting his former rate of pay without objection, and receipting therefor in full, he cannot afterward recover additional wages for the time over eight hours.
    IV. An application to the accounting-officers for additional pay for services over eight hours a day, and an allowance in part by them under the Act 18th May, 1872, (17 Stat. L., 134,) followed by acceptance of the amount awarded and the giving of a receipt in full, constitute a bar to any farther demand.
    
      The Reporters' statement of the ease:
    The court below found the foliowiug facts:
    1. In the year 1806 or 1807 the claimaut was employed by the foreman of the steam-heating- and gas works at the Naval Academy, at Annapolis, to work for the defendants at $2.50 a day, with the understanding that during the season of steaming, which was from the 1st of October to the 1st of June, his time of labor was to be twelve hours a day. During the seasons of steam-heating he was fireman at the steam boilers, and at other times he was employed in assisting in repairing pipes, digging, and shoveling, or in ordinary labor and work.
    2. In July, 1868, upon the passage of the act constituting eight hours as a day’s work for all laborer's employed on behalf of the Government, called the il Eight-hour Law," (15 Stat. L., 77,) the claimant and other laborers at said Academy spoke about that law to the foreman, who put on an additional man in the gas-Works, (where the claimant was not employed,) and reduced the time„of labor of the men in said gas-works to eight hours a day. Soon afterward the .men told him they would rather have half a dollar a day additional than to have the eight hours’ work. Admiral Porter, then superintendent of the academy, was informed of what the men said, aud he told the foreman that he would not give more pay, and that if any one would not work the full hours he would put some o.ne in his place. The claimant was present and heard this conversation. Nothing more was said or done in the matter, and the claimant went on with his work, laboring the number of hours per d^y as before, according to the original understanding.
    
      3. From the 25th of June, 1868, when the eight-hour law passed, to the 19th of May, 1869, when the President’s proclamation in relation to said act was issued, (16 Stat. L., 1127,) the claimant worked 231 calendar days, twelve hours each day, and 97 calendar days, eight hours each, day. From said 19th of May, 1869, to the time of his final discharge, October 15, 1872, he worked 752¿ calendar days, twelve hours each day, and 439£ calendar days, eight hours each day.
    4. For all of said labor the claimant was paid at the rate of $2.50 per calendar day, except chat, for reasons which do not appear in evidence, he was paid at the rate of $2.25 per day for 74 days of twelve hours each, in March, April, aud May, 1870, and for 26 days of eight hours each, in June, 1870. Payments at said rates were made to him at the end of each month during his time of service, and were received by him without protest or objection.
    5. While the claimant was so employed the pay of ordinary laborers at the academy was $1.75 a day ; aud the firemen were paid $2.50 a day because the time was longer and the work harder. The wages of firemen in the works of the gas company, a private corporation at Annapolis, has since the war been $2 a day of twelve hours’ labor, and they had more work to do than the claimant had while similarly employed by the defendants.
    6. In the year 1873 the claimant made a formal application in writing to the Fourth Auditor of the Treasury for arrears of pay, claimed as due him under the second section of the Aot May 18,1872, (17 Stat. L., 134,) between the 25th of June, 1868, and the 19th of May, 1869, on account of his said employment. The Auditor thereupon stated the account and allowed the claimant $205.63, which was admitted by the Second Oomtproller, and that amount was paid to the claimant, who receipted for the same, in writing, in full of the account.
    JJr. John 8. Blair (with whom was Mr. Assistant Attorney-General Smith) for the United States, appellants :
    That the Act 25th June, 1868, was oue that could be waived by the laborer, lies at the very foundation of the defendant’s case; for, if the law was mandatory, all work additional to the eight hours per day was illegal, and would not support an action on the quantum meruit. If compulsorily extorted, it would be a tort. The question for the determination of the court, then, is, did this defendant, by failure at the proper time to claim the protection of the law, or by any overt act, waive its benefits 9
    And, first, it is to be noticed that the employment of the de-' fendant was de die in diem, so that his connection with the Government might have been determined at the close of any day, and at the will of either party. When the Act June 25,1868, was passed, liewas receiving $2.50for each caleudar day, his working-hours being eight per day during four months of the year, and twelve per day during the remaining eight months; but the compensation did not vary with the change in hours of employment. No change was made either in his compensation or hours of labor upon the passage of the law, and soon afterward Admiral Porter, then superintendent of the academy, announced in the hearing of defendant that he would not increase the pay, and if any one would not work the full hours he would put some one in his place. The defendant resumed his work, and no change was ever made in his hours of labor, nor (as far as this case is concerned) in his pay. He received his pay at the end of each month without protest or objection.
    This defendant, it would appear, was not affected by the act until the 1st of October, 1869; when he had completed eight hours’ labor on that day, had he desired the benefit of the act, he should have stopped work. Having failed to do this, and no one in authority having asked him to labor longer, the “special i nstance and request of defendant,” which is an essential element in an action on the “ quantum meruit,” is gone. The labor for the next four hours became that of a volunteer, or else was performed under an implication that he waived the benefit of the Eight-hour Law, and accepted his per-diem pay as ade quate compensation for all the labor he performed during the calendar day. Having thus performed the extra four hours’ labor each day, at the end of the month he received his pay at the same rate as he had done for the October preceding, and accepted it without objection or protest.
    If the defendant entered upon the next mouth’s work with the idea that he would work twelve hours per day, receive the compensation only in payment of eight hours’ labor, and reserve to himself the right to bring an action for the extra four hours, ■he contemplated a fraud if he failed to communicate his purpose in some way to bis employers. What they conceived bis contract to be was apparent from the p.ay allowed him at the end of the first month, and his acceptance of this pay at that time was acquiescence in their construction until in some open and formal way he signified that it was different from his own. But he never protested against the last four hours of labor; never objected to the amount paid him at the end of each month; never indicated to any one that he was working under two contracts, one express and the other implied, and only claimed the benefit of the Bight-hour Law, after he had left the service, and then in the shape of extra compensation instead of relief from labor. There cannot be any implied contract where an express one exists relating to the same subject-matter, like that here relating to Mr. Martin’s labor for the Government at the Naval Academy.
    If, on the other hand, the labor performed each day, after the expiration of eight hours, was not that of'a volunteer, it was because Admiral Porter had announced that any man who did not work the full hours for the old pay would be dismissed. This announcement acquiesced in, followed by receipt without protest, and by defendant remaining in the service, constituted of itself a special contract and a waiver of the Act June 25, 1£68.
    He knew that the Government claimed to have his twelve hours’ work for the compensation he received; and that if he asserted any right to more, it was denied. Knowing it to be a disputed claim, he received and receipted for the sum paid in full of all indebtedness, and cannot now be heard to assert any liability as still outstanding. He received it, knowing that the United Slates relied upon it as a payment in full.
    Having received upon this claim a large sum, intended by the United States as a payment in full, and acquiesced in by him, he thereby tacitly conceding that it was so paid' and received., he has no right now to annul and rescind that adjustment without returning to the Treasury the money disbursed therefrom solely upon the supposition that the settlement was final. This was an entire contract for services on the one part and a stipulated daily compensation on the other. If he proposes now to litigate its terms, he must first place the parties in statu quo, by a refund of what he has already received. (Potter v. Monmouth Insurance Company, (53 Maine, 441; Bisbee v. Sam, 47 Maine, 543, and books passim.)
    
    
      The Bight-hour Law so far as the officers of thq Government were concerned, was merely directory; it had no bearing on the defendant, except when he was employed by or on behalf of the Government, and then only so far as it formed a part of his con- • tract.
    The proclamation of the President of 19th May, 1869, (16 Stat. L., 1127,) which was as follows, “ I do hereby direct that from and after this date no reduction shall be made in the wages paid by the Government by the day to such laborers, workmen, and mechanics, on accouut of such reduction of the hours of labor,” also was directory to the officers of the Government; and while we might well argue that it would have no effect on contracts made thereafter with laborers, by which they agreed to receive a reduced price for their work, we go still further, and say that it had no application whatever to the defendant, who, at the time, was working for an unusual number of hours at a price which he consented to receive for his services, whose wages were not reduced on the first of June following, when his hours were reduced to eight, nor increased in October, when he resumed the twelve hours’ work.
    In point of fact, after the passage of the Eight-hour Law, in some of the workshops of the Government, two courses .were adopted, which seemed to render the law of no practical benefit to the workmen. One was to allow the laborers to work ten or twelve hours per day, and receive their former pay, the employes being at liberty to quit the service the moment they were dissatisfied with it, and the other was to conform to the act and reduce the pay according to the number of hours taken off. It was against the latter plan that the proclamation was directed, the right of the employé to work as many hours beyond eight per diem as he chose, for such price as he was willing to receive for his labor, being left undisturbed. Similarly of the proclamation of May 1L, 1872, (17 Stat. L., 955.)
    Section 2 of the Act May 18, 1872, which provides for payment by the accounting-officers of all employés between the 25th of June, 1868, and May 19, 1869, without reduction on account of reduction of hours of labor by said act, (of 25th June, 1868,) when it shall be made to appear that such was the sole cause of tlie reduction of wages, is limited in its application to a specified period, and, like the proclamations, ignored those men who superseded the act by consenting'to work more than the eight hours.
    
      The foregoing views, we think, are sustained by the case of Luslce v. Hotchkiss, 37 Connecticut Reports, 219.
    We think, therefore, that the Act June 25,1868, conferred on defendant no right of recovery for any extra labor performed after its passage. It follows, therefore, that whatever compensation the defendant is entitled to for super-legal labor, between June 25,18C8, and May 19,1869, is derived from the second section of the Act May 18, 1872. As before stated, we think this act has no application to his case. By the sixth finding of the Court of Claims, it appears that his claim, under this act, was submitted to the Fourth Auditor of the Treasury, and the amount found due him by the Auditor and admitted by the Second Comptroller was paid, and receipted for in full.
    
      Mr. G. H. Hovey for the claimant, appellee:
    The act does not undértake to interfere with or change the rate of wages or price to be paid per day. Various efforts had been made by the laborers employed by the Government and by private parties to have the hours of labor fixed by law, and this act was the assent of Congress to these demands on the part of the Government. It was claimed that in a given period the laborer could and would perform as much labor working eight hours per day as he would if he worked the then ordinary number of hours. Whether this was sound or not, it would not have been much of a concession or benefit to the laborer if Gougress had said, we will reduce the hours of labor, but in consideration thereof we will also reduce yourwages in the same proportion.
    The simple and clear declaration of the statute was that thereafter eight hours of work should constitute a day’s labor. Whatever might be the rate of wages per day, when thereafter any laborer or mechanic had performed his^ eight hours of work, he became and was entitled to his per diem compensation for a day’s work. The measure was by hours and not by calendar day, and by that measure three working days might be included in one calendar day. Under this law, the same person when working extra hours in any emergency might be, .and I understand has been, paid for one and a half or even two days’ work performed on the same calendar day.
    If the fact that any laborer had worked more- than eight hours per calendar day is to be taken as evidence of a special contract which would take the case out of the statute, of what effect was the act? Suppose that after the passage of the act the officer in charge had said to the claimant, the act reduces your time from twelve to eight hours, and, in consequence, I shall reduce your per diem pay one-third, and if you don’t see fit to submit to this I will put another in your place, and he does submit to what he considers superior power; is this submission under a threat of dismissal to be taken as evidence of a renewal of an old understanding, or a new special contract, to which the statute does not apply ? If the fact that under such circumstances he continued to work twelve hours at the same compensation is evidence of such a special contract, so also is the fact that he continued to work only eight hours at a reduced compensation, and the statute becomes wholly inoperative.
    Another fact is to be considered. The per diem compensation received by claimant was not fixed with any reference to him or his employment-, but was fixed before he was employed at all. There was, at that time, no law defining what should constitute a day’s work. The price was fixed by the Government at $2.50 per calendar day. blow, whether the acceptance of this positiou by the claimant constituted a special contract or not, if Congress had the power to pass the act of 1868, and define what service should constitute a day’s work, by that act all these contracts of employment were changed, whether special or otherwise. It is not material to ttíis case what was paid any other perábn for similar or dissimilar service by the Government. Nor is the fact that private i>ersons paid a less price for similar services of the slightest consequence in this case. The Government had determined that the services performed by claimant were worth $2.50 per day, and they then went further and defined what should constitute a day. They had agreed to give him $2.50 per day, and then provided by law that eight hours’ work should constitute a day. When the claimaut had performed his eight hours’ work he became and was entitled to his $2.50, and for twelve hours’ work he was entitled to pay for a day and a half. Any other construction is an evasion of the law, and makes the enactment a mere subterfuge unworthy of any legislative body.
    
      This claimant signed the same receipts and pay-rolls that all other laborers did, and is in no different position in this respect. If the signing of such pay-roll was a bar in the one case it was in all others. The right to object, if such right existed, has been waived by the Government, and the larger portion of these laborers have been paid their per diem for eight hours’ work as provided by the act; and now the attempt is made to defeat the claims of the small number remaining by mere technicalities, and this new and late doctrine of special contract.
    The claimant did make application to the accounting-officers of the Treasury for arrears of pay. That application, under the act of 1872, was limited, or the accounting-officers confined their action to the time between June 25,1868, and May 19,1869. The facts before the accoun ting-officers were the same as here, that claimant had worked twelve hours per calendar day for a portion of said time. For some reason the Comptroller allowed him for ten hours per calendar day, but declined to pay for the other two hours, and the account was stated for two hours extra per day only, and for this account so stated the receipt was given; and for the remaining two hours, between these dates, and for the extra time subsequent, the claimant immediately théreafter filed his petition in the Court of Claims; and this is what is called the settlement of a disputed and disputable claim, which is to bar this claim.
    The action of the accounting-officers was limited to the time between June 25,1868, and May 19,1869, while this claim covers' not only that time, but a much longer period, and if the receipt of the amount then allowed'is in any sense a bar, it is a bar for that time only; but we submit that, under the circumstances, it is no bar for any part of the time.
   Mr. Justice Hunt

delivered the opinion of the court:

On the 25th of June, 1868, Congress passed an act (15 Scat. L., 77,) declaring “ that eight hours shall constitute a day’s work for all laborers, workmen, and mechanics now employed, or who may hereafter be employed, by or on behalf of the Government of the United States.” (Rev. Stat., § 3738.)

This was a direction by Congress to the officers and agents of the United States, establishing the principle to be observed in the labor of those engaged in its service. If prescribed the length of time which should amount to a day’s work when no special agreement was made upon the subject. There are several things which the act does not regulate which it may be worth while to notice.

First. It does not establish the price to be paid for a day's work. Skilled labor necessarily commands a higher price than mere manual labor, and whether wages are high or low depends chiefly upon the inquiry whether those having labor to bestow are more numerous than those who desire the service of the laborer. The English statute-books are full of assizes of bread and ale, commencing as early as the reign of Henry II, and regulations of labor, and many such are to be found in the statutes of the several States. It is stated*by Adam Smith, as the law in his day, that in Sheffield no master-cutter, or weaver, or hatter could have more than two apprentices at a time, and so lately as the 8 Geo. Ill, and which remained unrepealed until 1825, an act was passed prohibiting under severe penalties all master-tailors in London, or within fivp miles of it, from giving, or their workmen from accepting, more than two shillings sevenpence halfpenny a day, except in the case of general mourning. (Smith’s Wealth of Nations, 125,6th Oxford ed. of 1869.) A different theory is now almost universally adopted. Principals, so far as the law can give the power, are entitled to employ as many workmen and of whatever degree of skill and at whatever price they think fit, and, except in some special cases, as of children or orphans, the hours of labor and the price to be paid are left to the determination of the parties interested. The statute of the United States does not interfere with this principle. It does not specify any sum which shall be paid for the labor of eight hours, nor that the price shall be more when the hours are greater, or less when the hours are fewer. It is silent as to everything except the direction to its officers that eight hours shall constitute a day’s work for a laborer.

Second. The statute does not provide that the employer and the laborer may not agree with each other as to what time shall constitute a day’s work. There are some branches,of labor, connected with furnaces, founderies, steam or gas works, where the labor and the exposure of eight hours a day would soon exhaust the strength of a laborer, and render him permanently an invalid. The Government officer is not prohibited from knowing these facts,'nor from agreeing when it is proper that a less number of hours than eight shall be accepted as a day’s work. Nor does the statute intend that where out-of-door labor in the long days of summer may be offered for twelve hours at a uniform price the officer may not so contract with a consenting laborer.

We regard the statute chiefly as in the nature of a direction from a principal to his agent that eight hours is deemed to be «a proper length of time for a day’s labor, and that his contracts shall be based upon that theory. It is a matter between the principal and his agent, in which a third party has no interest. The proclamation of the President and the act of 1872 are in harmony with this view of the statute.

We are of the opinion, therefore, that contracts fixing or giving a different length of time as a day’s work are legal and binding upon the parties making them.

In the case before us the claimant continued his work after understanding that eight hours would not be accepted as a day’s labor, but that he must work twelve hours, as he had done before. He received his pay of $2.50 a day for the work of twelve hours a day as a calendar day’s work, during the period in question, without protest or objection.' At that time ordinary laborers under the same Government received but $1.75 per day at the same place, and those engaged in the same department with the claimant in a private establishment, at the same place, received but $2 for a day’s work of twelve hours, and the finding adds, “they had more work to do than the claimant had while similarly employed.” The claimant’s contract was a voluntary and a reasonable one, by which he must now be bound.

In 1873 the claimant applied for the same arrears of pay as are here in question, and received from the Auditor an award of $205.63. That amount was paid to the claimant, and he receipted in writing in full for the account. This has often been held in this court to be a bar to any further claim. (United States v. Justice, 14 Wal., 535; United States v. Child, 12 ib., 232.)

These principles require a reversal of the judgment of the Court of Claims. The case is remanded to the Court of Claims with directions that the petition of the claimant be dismissed.  