
    Francis E. Pray v. The United States.
    
      On the Proofs.
    
    
      The elaimmit holds the place of “occasional weigher and measurer” wider an appointment of the collector of the port of Portland. By the terms of his appointment, his compensation is fixed “at $2,000 when employed.” die is not employed on Sundays, and no compensation is allowed for those days. He is paid monthly, and receipts for Ms pay in full.
    
    
      I.By tlio Act 2cl March, 1799 (1 Stat. L., 627, § 21, Roy. Stat., § 2621), a collector, with tlio approbation of the Secretary of the Treasury, is authorized to employ persons as occasional weighers and measurers, and to agree with them as to their compensation.
    II.If the pay of a custom-house omployé be fixed by the collector “at $2,000 when employed” and his salary is paid monthly, and nothing is allowed him for Sundays (on -which he is not employed), and he accepts payment and receipts in full, he .will be precluded from suing for his salary on Sundays.
    III.An “occasional weigher and measurer” whose compensation is fixpd by the collector who appoints him is notoneofthe “weighers” designated by the Act 28th July, 1866 (14 Stat. L., 308, § 4, Rev. Stat., § 2739), who are to receive a salary of $2,000 per annum.
    IY. Where both the collector who appoints one an “occasional weigher and measurer,” with a salary running only when he is employed, and the appointee treat the position as temporary or occasional, the latter cannot afterwards maintain that his employment was in legal effect a distinct statutory office.
    
      The Reporters’ statement of tbe case:
    The following are the facts as found by the court:
    I. From the 1st of March, 1867, to November 30,1877, the claimant held the place and performed the duties of occasional weigher and measurer at the port of Portland, Me., under appointment of the collector of customs at that port, with the approbation of the Secretary of the Treasury.
    II. In the words of his appointment, his compensation was fixed at $2,000 when employed.”
    III. For all the time he held said place his compensation was paid to him at the rate of $2,000 per annum, except for Sundays, for which no compensation was paid him; nor did he during said time claim any compensation for those days; nor does it appear that on any Sunday during that time he performed any service as weigher or measurer.
    IY. The amount of his compensation for the Sundays which occurred during the period of his said service, computing his whole compensation at the rate of $2,000 per annum, would have been $3,061.83.
    Y. For each month during the period of said service the claimant was paid his compensation upon bills made out in the following form:
    
      “ The United States Ur. to F. F. Fray, oeoasional weigher of the customs for the port of Portland.
    
    “Fot my services as occasional weigher of the customs from -to-, inclusive, Sundays excepted, one month, at two thousand dollars per annum.”
    Each bill so made out was for the sum due for the month named in it after deducting the Sundays, and to each was subjoined a receipt, signed by the claimant, in the following form:
    “ Received payment for the above services, $-, of-, collector of customs for the port of Portland.”
    
      Mr. G. F. Talbot for the claimant.
    The statute made a contract with the claimants on the part of the government, and questions of salary are questions of contract. (Patton’s Case, 7 O. 01s. R., 362; Graham’s Case, 1 id., 380; Ware’s Case, 7 id., 565; Claim of Major Harrod, 13 Op. Atty. Gen., 103.)
    The course of congressional legislation clearly indicates the purpose of the government to make the year the unit of employment, and to disregard specific services and shorter periods in awarding an aggregate compensation. (Act March, 1799, 1 Stat. L., 707; Act July 7, 1838, 5 Stat. L., 265; Act July 18, 1866; Treasury Registers, 1873-1877.)
    The contract of the claimants with the government was not to do days’ works, but to perform services as customs officers that might be in excess of and might be less than days’ works, whenever they should be required; they were to do service requiring skill, and the government contracted to pay them, not for days’ works, but in solido an annual compensation of $2,000. (Act March 2,1799, secs. 72, 73; Rev. Stat., §§ 2636, 2638.)
    Where the law establishes a compensation by the year, any measure by months’ or days’ service is excluded, other than to fix the compensation for a period an office may have been held in excess of a full year. (.Feeder’s Case, 1 C. Ols. R., 141.)
    The fact that the claimants were designated in the commissions or letters appointing them as “occasional weighers and gaugers” did not and could not change their official character or take away or lessen their right to compensation. The statute nowhere recognizes any such distinct grade of customs officers as an “ occasional weigher.” The Treasury regulations of 1874 designates all the officers of the customs in all their grades, and makes no distinction between weighers. (Art. 1155.)
    It was not in the power of the collector, as disbursing agent of the Treasury, to designate a recognized legal customs officer as “occasional” solely because he intended to deprive Mm of his Sunday per diem, and then to withhold his Sunday per diem because he had designated him “occasional.” The right of the claimants to receive the salaries of their offices is not restricted or modified by the clause in their letter of appointment, “when employed,” because neither the collector nor Secretary of. the Treasury had any right, by law or regulation, to make such a contract. It was clearly against public policy to make temporary offices which Congress, after a trial of years of a temporary employment, had deliberately made permanent. If it were possible to admit that the collector might scale down the salaries of the claimants to the time they were actually employed, the deduction in these cases was unwarranted y all the testimony showing that they were in fact employed all the time.
    The claimants having been appointed by competent authority to an office created by law, made permanent, and with an annual salary, were employed while they held the office; and the only way to terminate their employment was to remove them from' office. {Sleigh’s Case, 9 C. bis. B., 309.)
    For the collector to attempt to make occasional and temporary custom-house offices created by law, which Congress had deliberately made permanent, was an attempt to legislate, and to apply to the conduct of a single port a different economy from what Congress had established ■ for the entire country. The economy which was clearly within the discretion of the collector was to dismiss one or more of the weighers if they were in excess of the requirement of the service; and such discretion is sanctioned both by the plain intendment of law and by custom. (Compare sec. 21, Act March 2, 1799, with Act June 17, 1844, 5 Stat. L., 696; see also Treasury Registers.)
    It can hardly be anticipated that the monthly receipts given the claimants in payment of what they have received is an acquittance of the part of their salaries withheld. They have only certified that a month’s service has been performed and that they have received so much pay. They do not certify that they have received tbeir whole salary or release the United States from all legal indebtedness. Even if they had given such release, it would have been void for want of consideration. (Frémont Contract Cases, 2 O. Ols. R., 34; Child, Pratt & Fox's Case, 4 id., 177; United States v. Diekerson, 15 Pet., 161.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants.
    Not only do bills made out by Pray from month to month for his services furnish a contemporaneous construction of the contract of employment, but I think, on the principles determined by the Supreme Court in the case of Clyde (7 C. Cls. 11., 262, 13 Wall.,'35), they conclude the plaintiff from making any further demand; the express exclusion from each bill of compensation for Sundays shows that he received his compensation with knowledge of the principles upon which it was ascertained (see case of Baird v. The United States, 96 U. S.; S. 0., 430); and it goes without argument that the bills contemplated the whole compensation for each month, although the receipts are not expressly in full. (See also Justice-v. The United States, 8 C. Cls. R., 53; Comstock v. The United States, 9 O. Ols. R., 141; Palmer-ton v. Btuxton, 4 Denio, 166; Tuttle v. Tuttle, 12 Met., 551; Taylor v. Nusskaum, 2 Duer, 302; Cooper v. Parker, 15 O. B., 822.)
    But it is contended by the learned counsel for claimant that the effort of the Secretary of the Treasury to make the claimant an “occasional weigher” was illegal, and he argues that by attempting to appoint him to an office that did not exist, he really appointed him to one that did. This, I think, is a non seqidtur. The intention of the Secretary not to malee him a regular weigher is manifest; if he could not make him an occasional weigher, then he made him nothing, and the services of the plaintiff were voluntary, without the instance and request of the defendants.
    Having during ten years and nine months presented to the collector 129 bills, in each of which he set him self down as “occasional weigher,” and having received as such occasional weigher over $18,000, which he would not have received except upon these representations, his mouth is closed to assert that he held any other position.
   Drake, Cb. J.,

delivered tbe opinion of tbe court:

By section 21 of tbe act of March 2,1799, “ to regulate the collection of duties on imports and tonnage” (1 Stat. L., 627), eacb collector of customs was authorized, “ with tbe approbation of the principal officer of tbe Treasury Department, to employ proper persons as weighers, gaugers, measurers, and inspectors at tbe several ports within bis district”; and that provision has ever since continued in existence, and is now contained in section 2621 of the Revised Statutes.

Its terms, in our judgment, authorize tbe collector, with tbe approbation of tbe Secretary of tbe Treasury, not only to employ persons for those positions, but to agree with them as to their compensation. Under it tbe claimant was employed, but not for a specified period; and be was to be paid tbe agreed compensation ‘ffivhen employed.”

He claims that tbe words “when employed” mean tbe period of time in which be held tbe situation. Tbe defendants contend that they mean tbe days be was actually employed in tbe discharge of tbe duties of tbe position.

Whatever room there'may be for difference of oinnion as to tbe meaning of those words, tbe claimant has precluded himself, by his own monthly acts during tbe whole period of his employment, from tbe benefit of tbe position be now assumes; for at tbe end of every month be rendered a bill for bis compensation for all tbe days of that month, “ Sundays excepted”, and never during that period intimated a claim that he was entitled to be paid for Sundays. This shows tbe construction be and tbe collector both put on tbe contract under which be served; and that construction precludes bis recovery here of any compensation for tbe days be excepted from bis bills.

To avoid this conclusion, be contends that be was entitled by express statute to a salary, of $2,000 per annum; and be relies for this on a clause in section 4 of tbe act of July 28,1866, “ to fix the compensation of certain collectors of customs, and for other purposes” (14 Stat. L., 308), in these words:

“ That in lieu of tbe compensation now allowed by law there shall hereafter be paid * * * to eacb of tbe custom-house weighers at tbe ports of Boston, Philadelphia, Baltimore, New Orleans, Portland, and San Francisco two thousand dollars per annum out of the appropriation for expenses of collecting tbe revenue ffiom customs.”

This provision is now section 2739 of tbe Bevised Statutes.

It does not, in our opinion, have the effect claimed for it, for the claimant was not appointed as a weigher, but as a “weigher mid measurer”; which is a different thing, at any rate in terms, from a “ custom-house weigher.” The difference between the two may not have been very, great; but beyond doubt it existed, and the mere fact of its existence takes the case out of the act 9f 1866, which fixes an annual salary, and places it under the act of 1799, which left the compensation to be agreed upon between the collector, the Secretary of the Treasury, and the employee.

There is another view of the matter, which seems to show that this claimant was not by law entitled to a fixed annual salary of $2,000. Employed as “weigher and measurer,” of course he could be required to perform the functions of measurer. If he was, as weigher, to receive $2,000 salary, what was he to be paid for his services as measurer? The statutes nowhere provided any salary for a measurer, nor did they authorize in terms the office of “ weigher and measurer.” How, then, was the measurer to be paid ?' It seems to us only in one way, and that was under the contract of his employment in the double capacity of weigher and measurer, with a salary covering both capacities, the greater part of which might be earned by the weigher or the measurer, according to circumstances.

There is still another view which is adverse to the claimant’s position. He was employed not only as “weigher and measurer,” but as an occasional weigher and measurer”; and every month he rendered a bill as “ occasional weigher.”

Here, then, both by the employing power and the employee, a word was used which certainly was not used without a purpose. The statute does not use it, but speaks of “custom-house weighers.” Did the collector and the Secretary of the Treasury mean nothing by the use of the word “occasional”? Of course they had a meaning; and it seems clear that they meant the claimant’s position to be a different one from that which the act of 1866 meant by the words “custom-house weighers.” And this purpose is further made evident by the use of the other-words, “ when employed.” If the claimant was to be a weigher, within the meaning of the act of 1866, it is not supposable that either the collector or the Secretary of the Treasury would have attempted to cut down his statutory annual compensation by counting- tlie days wlien be was not actually employed and refusing bim pay for those days, for those officers would have known, quite as well probably as we do, that there was no statute authorizing them so to razee an annual compensation fixed by law, and therefore that they could not do it.

It is no answer to this to say that the statute nowhere recognizes any such distinct grade of customs officers as occasional weighers.” True, it does not; but the collector had authority to employ temporary or occasional weighers as well as regular or permanent ones; and he saw fit to employ the claimant as an occasional one; and the latter agreed to that employment, and no other; and he also agreed to the terms of his employment; and worked for ten years and eight months under that employment, and was regularly paid the compensation he agreed to receive for his services as an “occasional weigher and measurer.” He cannot now be permitted to say that he was, in reality, something else than what his apj)ointment indicated, and what he himself, through all that period, every month affirmed it to be.

The claimant’s petition is dismissed.  