#### EMMETT L. ADAMS v. THE UNITED STATES.

(No. 28670.

Decided February 18, 1907.)

*On the Proofs.*

The only'question in this case is whether *“Saturdays after twelve o’clock noon ”*are holidays in the District of Columbia. A machinist in the gun factory of the Washington' Navy-Yard was required to work on Saturdays after 12. o’clock as on other week days at his ordinary rate of pay. He now seeks to recover the higher rate of pay allowed to employees by the Navy Regulations when they are required, to work on Sundays and legal holidays.

I. The *Act Sd March, 1901*(31 Stat. L., p. 1404, § 1389), “ *to estaV-lish a code of law for the District of Oolunibia ”*extended only, to the time of payments of negotiable instruments falling due on legal holidays and on Sundays, and for that purpose certain days designated in the statute are declared to be holidays.

II. Sunday, being clothed with the idea of sanctity, is in its nature *dies non juridicus,*while a legal holiday is the creature of statute. If the purpose is expressed, it should not be extended beyond the clear import of the statute. Hence no presumption can arise from a statute relating to the payment of commercial paper that Saturday afternoon was intended to be a holiday for public employees.

*192III. The *Act 80th June, 180%*(32 Stat. L., p. 520), amends section , 1389 (supra) by striking out the words “ *within the meaning of this act ”*and inserting the words “ *for all purposes; ”*and section 1389 provides that “ *every Saturday after twelve o’clock noon ”*shall be a holiday. The effect of the amendment is to divide Saturday into two parts — one for business purposes and the other for a holiday.

IY. Where employees of the Navy Department are required to perform labor on Saturday afternoons they are entitled to be paid therefor at -the ordinary rate of pay under Revised Statutes, section 1545. The *Joint Resolutions 6th January, 1885*(23 Stat. I/., 216), and *28d February, 18S7*(24 Stat. L., p. 044), do not change the effect of section 1545.

V.Pay given to employees for holidays where no work is performed is a gratuity which must be authorized by law.

VI.The work in a navy-yard is under the control of the Secretary of the Navy, and where he directs work to be performed by per diem employees on holidays the regulation fixing pay operates as a contract if it does not contravene some law.

VII.The regulations of the Army and Navy have the force of law with respect to a person or subject-matter of which the Secretary has official control, but to have the force of law they must conform to- the law.

VIII.Under Revised Statutes, section 1547, the orders, regulations, and instructions issued by the Secretary of the Navy are presumed to be issued with the approval of the President, and this presumption extends to an order requiring employees to render service on Saturday afternoons, with no other compensation than such as shall be due by reason of the extension of the hours of service.

IX.Where a statute gives to certain employees pay without work on holidays and they are required by the head of a Department to render service on holidays, he may make provision by regulation or contract for extra pay for services so performed.

X.Exemption from work on holidays does not carry with it' the right to pay. If Congress make no provision for payment to per diem employees on holidays, their compensation is limited to the time they are actually employed.

XI.Actual employment is the basis for pay, and where there is no law giving pay without work- the per diem employee is not entitled to be paid.

*The Reporters'*statement oí the case:

The facts of the case sufficiently appear in the opinion of the court.

*193
      *Mr. Charles C. Lancaster*and *Mr. Herbert E. Smith*for the claimant:

1. It is contended here that the legislation creating Saturday half holiday as a legal holiday is much more comprehensive and positive than the language used in the act creating Labor Day as a legal holiday.

This contention is fully sustained by the opinion of the Attorney-General, wherein he agrees with the Comptroller that the words for all purposes carries with it the legislative intent to place said Saturday half holiday on an equal footing with all the other legal holidays wherein compensation is specially provided.

Such being the undoubted legal and common-sense construction of the effect of the words *for all purposes,*it must be held that regular per diem employees in the gun factory •of the Washington Navy-Yard are legally entitled to their holiday pay, with or without work.

2. Statutes relating to the same thing or general subject-matter are to be construed together, and are in *pari materia*no matter when they were passed, and all acts may be referred to in order to discern the intent of the legislature in the use of particular terms. *(Vane*v. *Newcombe,*132 U. S., 220; *Viterbo*v. *Friedlander,*120 U. S., 707; *Hamilton*v. *Rathbone,*175 U. S., 414; *Chicago, Rode Island <& Pac. R. R. Co.*v. *Zernedce,*55 L. R. A., 611; *Austin*v. *Gulf C. c& S. F. R. Co.,*45 Tex., 234; Enlich, Int. of Statutes, sec. 45; Sutherland, Stat. Constr., sec. 283; *State*v. *Gerhardt,*33 L. R. A., 314; *United States*v. *Freeman,*3 How., 566; *Patterson*v. *Winn,*22 How., 299'; *Harrington*v. *United States,*11 Wall., 356; *Ryan*v. *Carter,*93 U. S., 78; *Cooper Mfg. Co.*v. *Ferguson,*113 U. S., 727.)

In construing an act it is of first importance to ascertain the legislative intent, and the act should be so construed as to accomplish that result. (Maxwell, Inter, of Statutes, 133; Siitherlancl, Stat. Constr., 234, 309, 311, 349, 354, 356; En-lich, Inter, of Statutes, sec. 19.) Where the legislature makes a plain provision without making any exception the court can make none. *{French*v. *Spencer,*21 How., 228; *Tturbide*v. *United States,*22 How., 290; *Thornley*v. *United States,*
      *194113 U. S., 310; *Poor*v. *Gonsidine,*6 Wall., 458.) The spirit as well as the letter of a statute must be respected, and where the whole context of the law demonstrates a particular intent in the legislature to effect a certain object some degree of implication may be called in to aid the intent. (Durous-*seau*v. *United States,*6 Cranch, 307.)

It will not be inferred that the legislature, in revising and. consolidating the laws, intended to change their policy, unless such intention be clearly expressed, and the mere change of phraseology will not be construed a change of the law. *(United States*v. *Ryder,*110 U. S., 729; *McDonald*v. *Hovey,*110 U. S., 619.) Statutes should be so construed, if practicable, that one section will not defeat or destroy another, but explain and support it, .and they should receive a sensible construction, such as will effectuate the legislative intention. *(Bernier*v. *Bernier,*147, U. S., 242; *Lau Ow Bew*v. *United States,*144 U. S., 47.)

All statutes are read in the light of history. *(Oliurch of the- Holy Trinity*v. *United States,*143 U. S., 457.) Courts will lean to that construction of a statute which will uphold a transaction as consummated, when the good faith of all parties is unquestionable. *(Provident Life c& T. Go.*v. *Mercer Go.,*170 U. S., 593.)

See *People of the State of Michigan*v. *Thielman*(39 L. E. A., 218) for the construction of similar statutes as those affecting the present case.

3. The aim of general legislation respecting salaries is to gauge the work so as to give full employment to the man and to measure the pay according to the work. *(Landram’s case,*16 C. Cls. E., 74.)

The regulations were issued under authority of section 1547, E. S., and have the force of law. *(Garlinger*v. *United States,*30 Ct. Cls., 208; *United States*v. *Strong,*125 U. S., 656; *United States*v. *Symonds,*120 U. S., 51, and *Smith*v. *Whitney,*116 U. S., 186.)

Under these regulations the claimant is entitled to 50 per cent additional compensation over and above his ordinary pay for work actualN performed by him in the Gun Factory of the Washington Navy-Yard on Saturday half holidays.

*195The proof shows that under said regulations the regular per diem employees of said Washington Navy-Yard have been paid 50 per cent additional compensation for work on all other legal holidays.

It is contended here that said regulations include and cover Saturday half holidays from 12 o’clock noon, and that the claimant is entitled to receive this additional compensation.

Since March 3, 1901, up to June 30, 1905, the printed and published regulations of the Navy Department as to section 5, article 1600, were not altered or changed, and on June 30, 1905, when the present new edition of the Navy Regulations were printed and published, no alteration or change was made in section 5 of article 1600, but the same has remained in force and effect throughout the entire period covered by this suit.

The special order of the Secretary of the Navj-, except as to the right to keep said yard open, was wholly without the authority of law cited and a violation of said statute, as well as the opinion of the Attorney-General.

Said statute refers to salaried clerks and employees, and not to per diem employees in the Washington Navy-Yard, as every clerk employed is required to labor seven hours per day on each day not Sundays and public holidays, and their hours may be extended by special order of the head of the several Executive Departments beyond said seven-hour limit without additional pay, which additional pay means “ no additional salary over his ordinary monthly or yearly salary shall be allowed him,” it not being considered as overtime, Avhile in the case of the per diem employees they are paid by the hour and only for each and every hour worked, and if they are required to work, certainly they are entitled to their ordinary hourly pay, as the Government only pays them for what the Government receives, and the laborer is always worthy of his hire.

Said statute is only applicable to salaried clerks and employees, and not to the per diem employees of the Washington Navy-Yard, as it will be seen that thirty days’ annual leave with pay is provided for • the clerks and employees therein referred to, with additional sick leave,.etc., while the *196per diem employees of the Washington Navy-Yard are only given fifteen days by virtue of an exclusive statute (31 Stat. L., 746), which excludes them from the statute cited in said alleged special order.

Said statute does not give the right to any head of the several Executive Departments to extend the hours or require clerks or employees contemplated therein to work on Sundays and holidays, but it emphatically denies to them such right and privilege, and when the Secretary of the Navy issued said special order of August 22, 1903, he knew that Saturdays from 12 o’clock m. were legal and public holidays within 'the scope thereof, and he knowingly and openly violated the terms and express prohibitory holiday provisions contained in said statute cited by him as upholding his action, as he was advised by the 'Attorney-General on August 15, 1903, that under the Code of the District “ every Saturday after 12 o’clock is a legal holiday therein for all purposes, to the samé extent and upon the same footing as Christmas day, July 4,” etc., as well as his action Avas contrary to said opinion.

The provisions of said opinion referring to' the necessity of requiring clerks and employees to work on holidays simply shows the right to keep the Departments open and require work therein, but it does not advise nor sanction the theory that clerks and employees Avho do work are not entitled to and should not receive appropriate compensation therefor.

Neither does said opinion advise said Department officials that they have a right to extend by special order the hours of employees, salaried or otherwise, on legal holidays, but it is confined to the limits of said statute, and advises that hours of labor may be extended on ordinary days, which means purely lay or working days exclusive of Sundays and legal holidays.

Said special order has never been brought to the attention of claimant in an official Avay, nor posted in the navy-yard; neither has it been published or embodied in the general public printed regulations, and certainly such special order can not subjugate and override the effects of the general public printed regulations which are known to claimant and co-employees and by which they are governed.

*197These regulations, accepted by the employees, create a contract between the Government and its employees, and when they work-under said regulations they have a legal right to demand the compensation provided by law and said regulations.

A statute which establishes a salary or prescribes a rate of remuneration expresses the intent of both parties, as a written agreement does in case of private employers or employees. *(Upton’s case,*19 C. Cls. R., 46.)

Parties who contract on a subject-matter to which well-known usages prevail, by implication incorporate them into their contract, if nothing is said to the contrary. *(Gollins*v. *United States,*34 C. Cls. R., 294; *Robinson*v. *United States,*13 Wall., 366, and *Ohateaugay Iron 'Oo.*v. *Blaise,*144 TJ. S., 476.)

In the absence of proof that the special order was brought to the notice of the claimant and others similarly situated the Government can not in good faith require the claimant to work on a holiday and not pay him the additional compensation which was published to the world and made a part of his contract.

To abrogate and nullify such a regulation and custom, it should be done in a clear and definite manner and due and legal notice given to the parties affected thereby in order to alter the former relations. Our contention here is that this special order did not deprive the claimant of his 50 per cent additional compensation for work actually performed on Saturday half holidays, because of the following additional legal reasons:

4. It will be observed that the special order dated August 22, 1903, signed by the Assistant Secretary of the Navy, states that said special order was made upon the direction of the Secretary of the Navy, but wholly fails to show that said special order was made and issued upon or after the approval of the President of the United States.

Claimant contends that said special order is wholly null and void and can in no wise affect section 1600, paragraph 5, letter *e,*of the published and printed Navy Regulations, which are made and issued under section 1547 of the Revised Statutes of the United States and duly approved by the *198President. Claimant contends that under the Navy Regulations which went into effect. March 28, 1900, and continued until June 30, 1905, there is no provision made for changes or amendments to said Navy Regulations by virtue of special orders, but such changes and amendments as were deemed necessary could only be made by the issuance of regulation circulars, which circulars necessarily require the approval of the President, he having duly approved the regulations to be changed or amended.

This contention is proved beyond dispute by section 1547, Revised Statutes, which is inserted in the Navy Regulations for 1900 and 1905, on page 2, which section reads as follows:

“ The orders, regulations, and instructions issued by the Secretary of the Navy prior to July 14, 1862, with such alterations as.he may since have adopted, with the approval of the President, shall be recognized as the regulations of the Navy, subject to alterations adopted in the same manner.”

The proof in this case shows that no regulation circulars, making changes in or amendments to article 1600, section 5, of the. Navy Regulations, accompanied by a full statement for the reasons therefor and the effect that would be produced thereby, were ever submitted to the Navy Department during the period covered by this suit and the approval of tjhe President obtained to such alterations in the regulations to which they were a change or amendment, as provided by said section 1547, Revised Statutes; but the proof is undisputed that the only attempted change or amendment was by virtue of a special order issued simply upon the direction of the Secretary of the Navy, for which the approved Navy Regulations make no provision and which never received the approval of the President.

It will be observed that said regulations contain the same provisions in its article 1600, section 5, as contained in the same section of the regulations for 1900, and it is recognized that in order to amend said regulations such amendment must first be submitted to the Department, accompanied by a full statement of the reasons and effect thereof, and said amendments to become effective must be adopted in the same manner as the original regulations to which it is an amendment, *199which is to obtain the approval of the President to such change or amendment.

5. It does not appear from the record that any substantial and meritorious grounds can be set up to allow one holiday compensation and disallow the other. To carry out the provisions of said section T389 of the Code relative to July 4 and Labor Day and refuse to abide by and enforce the same relative to Saturday afternoons from 12 noon is an unexplained and unjustified action of the Navy Department and i an injustice and discrimination against claimant and coem-ployees, and it is apparent that the construction of said Department is obviously wrong, and it is the duty of the ■court to so adjudge. • *(United States*v. *Graham,*110 U. S., 219; *~Wis. Gen. B. Go.*v. *United States,*164 TJ. S., 190.)

*Mr. Malcom A. Goles*(with whom was *Mr. Assistant Attorney-General Van*Orsdel), for the defendants:

1. An examination of the legislation cited will establish the following distinct and basic propositions:

(1) That the pay of per diem employees of the Government shall be limited to “ the time during which they may.be actually employed,” unless express exceptions are made by statute designating the days granted as holidays and the rate ■of pay for same.'

(2) The Congress has never designated Saturdays afternoon as a holiday with any pay when no work was performed.

(3) When the Congress intended to designate certain days ■as holidays with pay it has distinctly named the days and fixed the rate of pay at “ the same as on other days ” — working days.

From the statutes cited it is manifest that the Congress has been extremely careful to state just exactly what was intended by the joassage of the several acts and to name the holidays granted with pay without work.

This court can allow no compensation to this claimant which has not been expressly provided for by law. *(Hannibal, etc., B. B. Go.*v. *Missouri Backet Go.,*125 U. S., 260; *Doe*v. *Gonsedene,*6 Wall., 459; *Wilkinson*v. *Leland,*2 Pet.,

*200627; *Boss*v. *Duvall,*13 Pet., 45; *St. Paul M. and M. Go.*v. *Phelps,*137 U. S., 528.)

It will be seen that some of the acts designating certain days as holidays contain'a provision granting holiday pay at the same rate “.as on other days,” while other acts simply grant the holiday without granting any pay therefor. The right of the Congress to do this can not be questioned, and it is the duty of the court in each case to determine it in accordance with the express terms and provisions of the particular statute in question.

A statute is to be interpreted not only according to its exact words, but also according to its apparent general purpose. If its general purpose have reference to one class of persons, it will not include a single individual in a distinct class, though the mere words might include him. *(Saunders*v. *United*States, 22 Wall., 492; reversing 10 C. Cls. R., 63.)

The intent of the statutes here in question (sec. 1389, D. C. Code) was clearly to increase the period of rest for employees rather than to grant them pay or to increase their pay.

If any injustice has been done any employee of the Government by the statute here in question (32 Stat. L., 543), or the interpretation of the same by the Department heads, his remedy is by petition and appeal to the Congress for a change of the law, rather than to this court. If he fails to get the law changed to meet his demands he is free to resign or quit work; but if he stays and accepts the rate of compensation for his services fixed by the statutes relating to his employment which are in force he can not afterwards recover against the United States. *(United States*v. Garlinger, 169 U. S., 316; *Johnson et al.*v. *United*States, 37 C. Cls. R., 309; *United States*v. *Martin,*IV Otto, 94 U. S., 400.)

The court can not make any exception in favor of section 1389 of the Code of the District of Columbia and allow pay for Saturdays afternoon when none is allowed by Congress. In support of this well-established proposition the case of *Saunders*v. *The United States*(22 Wall., 492; 10 C. C. R., 62).

2. The general purpose of the Congress in granting holidays was not to increase the pay of Government employees, *201per diem or otherxvise, but to decrease the work so that they would have more time for rest. That being true, such statutes should, in the absence of specific provisions as to an increase in the rate of pay, not be construed so as to increase the wages. *(Harrison's*case, 26 C. C. It., 259; *Taylor’s*case, 39 C. C. R.., 42.)

When dealing with the subject of holiday pay to per diem or other employees of the Government, the Congress has repeatedly and distinctly declared that the pay shall be “ the same as on other days.” The only lawful pay for holidays is, therefore, the same pay or rate of pay as that allowed to and received by the employee on the other or regular workdays. This is true whether work is performed on the holiday or not.

Article 1600, paragraph 5, subsection (c) of the Navy Regulations, purporting to provide for the payment of any additional compensation over the ordinary rate of pay on other working days to employees of the Government who might be required to work on the various holidays granted, is contrary to the letter and spirit of the acts of Congress above cited, and is ineffective to override them. *(United States*Y..Symonds, 120 U. S., 46; *Converse*v. *United*States, 21 How., .464.)

3. It must be remembered that the claimant has been paid $306 for the time he actually Avorked on Saturdays afternoon, Avhich was the full amount of his agreed compensation at the hourly rate during said time and for which he has signed the regular vouchers or receipts. He has, therefore, received for his Avork on Saturdays afternoon the same rate as on other working days, and even if said afternoons were distinctly stated by statute to be holidays with pay, then, by the repeated expressions of the legislative intent in fixing the rate of pay in similar instances, Avhen holidays were granted, this court could allow the claimant no more than he has already received without violating the analogy which the Congress has established.

Any alloAvance of additional compensation for work performed on Saturdays afternoon would have been Avithout authority of law, even if the Navy Department had regarded said afternoons as legal holidays, because of the *202limitations contained in sections 1545 and 1765, United States Revised Statutes.

This claimant has rendered no extra service in excess of eight hours a day, and when he worked from 8 a. m. to 4.30 p. m. (less one-half hour at noon) on Saturdays he was only rendering the regular service for which he was employed, his compensation being fixed at a given rate per hour, or for a day of eight hours at the rate of so much per hour for the time actually worked.

The terms of employment under which the claimant worked constituted a special contract between him and the defendant. He accepted his pay without lawful protest and receipted therefor. He, furthermore, remained in the service of the defendant and accepted and receipted for his pay according to the terms of his employment after notification of special order of August 22, 1903, and the letter of the Secretary of the Navy to the committee, dated October 22, 1903. His case clearly comes, therefore, within the ruling of the Supreme Court in the case of *The United States*v. *Martin*(IY Otto, 92 U. S., 400).

The positive terms of section 1545, Revised Statutes, when taken in connection with the fact that no additional compensation for employees of the Government for work performed on legal holidays is authorized by statute, and the further fact that Congress has plainly expressed its intention upon this question by the acts of March 3, 1883, and March 15, 1898, this court should find no difficulty in denying claimant’s request for additional compensation for work performed on Saturdays afternoon; and as he has been paid his ordinary rate of pajr for the time actually worked, his .petition should be dismissed.

The very argument advanced by claimant’s counsel in support of the first question involved in this case, namely, that Saturdays afternoon are legal holidays, if accepted by this court, would be properly applicable against the second contention, namely, that of extra or - additional compensation. If Saturdays afternoon are held to be legal holidays, then it must follow, by the analogy of the statute cited, that the pay for such days is “ the same as on other days,” and no allowance for additional compensation can be made, because *203the same is contrary to the plain legislative intent. (Amer. and Eng. Ency., vol. 20, p. 620, secs. 5-9.)

Compensation for extra services can not be allowed by the head of a Department unless the same is fixed and provided for by law. *(Converse*v. *United*States, 20 How., 463; *United, States*v. Symonds, 120 U. S., 46; *United States*v. *Shoemaker,*7 Wall., 338.)

The lalter case shows that the doctrine of *quantum meruit*has no application- to a case like this.

4. The presumption is that no official person, acting under oath of office, will do aught which is against his official duty to do or omit to do aught which his official duty requires him to do. *(Mandeville*v. Baynolds, 68 N. Y., 528; see also Lawson on Presumptive Evidence, p. 52, and citations; see also Troop on Public Offices, sec. 558, and citations.

The action of the Secretary of the Navy in issuing said special order is-virtually the act of the President, and meets the provisions of section 1547, Revised Statutes, on which claimant’s counsel relies in attacking same. *(United States*v. Jones, 18 How., 95; *Wolsey*v. *Chapman,*101 U. S., 755; *McElratli*v. *United States,*102 U. S., 426.)

The special order was manifestly such an exercise of the executive authority vested in the Secretary of the Navy as this court can not review. *(Billings*v. *United States,*33 O. Cls. R, 176.)

5. Under the ruling of this court and of the Supreme Court of the United States in the Night Inspector cases, the claimant here would be barred from recovery, at least up to August 22, 1903, having ■ accepted his pay without protest. *(United States*v. *Garlinger,*169 U. S., 316; *Johnston et al.*v. *United States,*37 C. Cls. R, 309.)

Peelle, Ch. J.,

delivered the opinion of the court:

The claimant, a skilled machinist and per diem employee in the gun factory of the Washington Navy-Yard, was required by the Navy Department to work on Saturdays after 12 o’clock noon, from March 3, 1901, to November 10, 1905, as on other week days at his ordinary rate of pay except as stated below.

When the claimant and those of his class were required to work on Sundays and legal holidays, *other thorn on Satur*
      *204
      *days after 1% o'clock noon,*they were paid additional pay therefor under article 1600, paragraph 5, clause C of the Navy JRegulations of 1900, which provides:

“(C) For. work performed on Sundays or on legal holidays the ordinary rate of pay with fifty per cent additional shall be paid.”

No allowance was made under said regulation to the claimant or those of his class for work performed Saturday afternoon, but they were allowed their ordinary pay by the Secretary of the Navy for the Saturday afternoon they did not work during the months of July, August, and September, 1904, when the navy-yard was closed by Executive order of June IS, 1904.

By the act of March 3, 1901, chapter 854 (31 Stat. L., 1404), entitled “ An act to establish a code of law for the District of Columbia,” section 1389 thereof provided :■

“Seo. 1389. When negotiable instrument is payable.— Every negotiable instrument is payable at the time fixed therein, without grace. When the day of maturity falls upon Sunday or a holiday, the instrument is payable on the next succeeding business day. Instruments falling due on Saturday are to be presented' for payment on the next succeeding business day, except that instruments payable on demand may, at the option of the holder, be presented for payment before twelve o’clock noon on Saturday when that entire day is not a holiday. The following days in each year, namely, the first day of January, commonly called New Year’s Day; the twenty-second day of February, known as Washington’s Birthday; the Fourth of July; the thirtieth day of May, commonly called Decoration Day; the first Monday in September, known as Labor’s Holiday; the twenty-fifth day of December, commonly called Christmas Day; every Saturday, after twelve o’clock noon; any day appointed or recommended by the President of the United States as a day of public fasting or thanksgiving; and the day of the inauguration of the President, in every fourth year, shall be holidays in the District within the meaning of this section. Whenever any day set apart as a legal holiday shall fall on Sunday, then and in such case the next succeeding day shall be a holiday; and in such cases and in all cases in which a Sunday and a holiday shall fall on successive days all commercial paper falling due on any of said days shall, for all purposes of presenting for payment or acceptance, be deemed to mature and be presentable for payment or acceptance on the next secular or business day succeeding.”

*205The meaning of that section is clear and unambiguous, and has reference only to the time of payment of negotiable instruments falling due on legal holidays and on Sundays; and for that purpose the days therein designated are declared to be holidays. That such was the purpose in designating such days as holidays is clear from the language which follows, i. e., that “ whenever any day set apart as a legal holiday shall fall on' Sunday, then and in such case the next succeeding day shall be a holiday; and in such case and in all cases in which a Sunday and a holiday shall fall on successive days, all commercial paper falling clue on any of said clays shall, for all purposes of presenting for payment or acceptance, be deemed to mature and be presentable for payment or acceptance on the next secular or business clay succeeding.” The same meaning clearly attaches to the language which precedes such designation in the section. The subject in chapter 46, of which section 1389 is a part, has reference to negotiable instruments.

A legal holiday differs from Sunday in this, that “ Sunday being clothed with the idea of sanctity is in its nature *dies non juridicus*” — as well as a clay of rest — while a legal holiday is the creature of statute, in which, as a rule, the purpose thereof is stated if not defined, and such purpose should not be extended beyond the clear import of the statute. Whether a legal holiday is *dies non juridicus*by virtue of some statute or is so *ese vi termini*is not material now to consider, further than to say that though “ holiday means a day of exemption from labor — in commemoration of some event, expression of gratitude, or respect for the memory of some person — that does not appear to have been the original purpose of the section under consideration, and hence no presumption can arise from the language used that Saturday afternoon was intended as a holiday with pay, much less that extra pay was intended when work was performed thereon.

At this point, however, we are confronted with the act of June 30, 1902 (part 1, 32 Stat. L., chapter 1329, p. 520), amending section 1389 by striking therefrom the words “within the meaning of this act” and inserting in lieu thereof the words “ for all purposes.”

*206The substitution of these words following the designation of certain days as holidays, the claimant contends, makes said days legal holidays in the District of Columbia “ for all purposes,” and that therefore he is entitled not only to his ordinary pay when no work is performed on Saturday after 12 o’clock noon, but that when work is performed he is also entitled to be paid extra therefor under the navy regulations referred to.

Furthermore, the claimant contends that the question whether Saturday afternoon is a legal holiday in the District of Columbia is not an open question; and, in support of his contention, he cites the opinion of the Acting Attorney-General August 15, 1903 (25 Opin. Atty. Gen., 40), which was given in response to a question from the Secretary of War respecting the statutes regulating the hours of labor by clerks and other employees in the War Department. The Acting Attorney-General, after commenting on the various statutes fixing the hours the bureaus in the respective Departments shall remain open for public business, and referring to said section 1389, as amended, said:

“ I am of opinion that under the Code of the District, as amended, ‘ every Saturday after twelve o’clock noon ’ is a holiday therein for all purposes, to the same extent and upon the same footing as Christmas Day, July 4, etc. There is no law making it illegal to labor or to carry on ordinary business affairs on those holidays created bjr the District Code, neither is there anything in the legislation by Congress absolutely requiring that the Executive Departments of the Government be closed and the clerks and other employees therein be released from work on such days.

“ Wherefore, I have the honor to advise you—

“ 1. That ‘ every Saturday after 12 o’clock noon ’ is a holiday for all purposes within the District of Columbia, and is, therefore, one of the ‘ days declared public holidays by law ’ within the meaning of the statutes regulating the number of hours of labor which it is your duty to require of all clerks and other emploj^ees of your Department. You are, consequently, not obliged to require labor by such parties after the hour of noon bn Saturdays.

“ 2. Under the law as it now stands, you must require at least seven hours’ labor of all clerks and other employees in your Department every day in the year, except on Sundays and those days declared to be holidays by section 1389 of the Code of the District of Columbia, and during authorized *207leave. It is also clear that you have the right, and if in your judgment the interest of the public service demands such action, it is your duty, by special order stating the reason, to extend the hours of labor on ordinary days as you may think proper, and to require of clerks and employees in your Department that they work on any or all holidays now established by law during the hours you may designate in such an order.”

Soon thereafter the Court of Appeals of the District of Columbia, in the case of *Ocumpaugh*v. *Norton*(24 App. D. C., 296), respecting the time within which appeals should be taken from the Commissioner of Patents, to that court, construed said section 1389 as applying to all official duties justifying the cessation of official work in the District of Columbia on Saturday afternoon.

The court, in commenting on the section as amended, said:

“The substitution of the words, *for all*purposes, in the amendatory act of June 30, 1902, has been gradually understood and accepted as broadening the scope of this provision so as to make it apply to all official duty and to justify the cessation of all official work. It seems to be accepted on both sides of these cases as constituting the afternoon of Saturday as a *dies non juridieus.*

So assuming it to be, we are urged on the one side, inasmuch as it is an old rule that the law takes no note of fractions of a day, to regard the whole of Saturday as a legal holiday for all judicial purposes; and, on the other side, for the same precise reason, to regard Saturday as no holiday, since there is enough of it left in which to transact all necessary and proper secular business.”

Then referring to the novelty of the question and the paucity of authorities in reference thereto, the court further said:

“ We think that in cases like the present the rule is no longer applicable that the law will take no note of fractions of days. The statute law here does specifically and in express words take note of such fractions. It expressly divides the Saturday into two parts, one for business purposes and the other for a holiday; and we see no reason why we should not give effect both, to the letter and the spirit of that law by taking note of half holidays in our computations.”

It will be noted from the opinion in that case that both parties accepted Saturday afternoon as a *dies non*juridieus, *208and the court “ so. assuming it to be,” held- that Saturday was divided into two parts, one for business purposes and the other for a holiday, and that following the statute there was no reason why they should not give effect to the letter and spirit of the law by taking note of half holidays in their computations.

Accepting the construction given by the court of appeals of the District to the amended section of the District Code, as well as that given by the Acting Attorney-General, we must hold that Saturday after 12 o’clock noon is a holiday within the District of Columbia “ for all purposes.” And assuming, for the purpose of this case, the applicability of section 1389 to the employees in the service of the United States within the District, as contradistinguished from those in the service of the District of Columbia, the next and most important question is, When the claimant and those of his class were required to perform labor on Saturday afternoon, were they entitled to be paid therefor more than their ordinary rate, i. e., were they entitled to be paid extra therefor?

That it is within the authority and discretion of the head of a Department in cases of necessity or emergency — of which he is the judge — to require the employees in his Department to work on holidays there is and can 'be no controversy. This discretion was exercised when the Navy Department required the claimant to work Saturday afternoon.

Respecting the pay of the employees in the navy-yard, Revised Statutes, section 1545, provides:

“ Salaries shall not be paid to any employees in any of the navy-yards except those designated in the estimates. All other persons shall receive a per diem compensation for the time during which they may be actually employed.”

By the acts of March 3, 1883, section 4 (22 Stat. L., 563), and March 3, 1893, section 5 (27 Stat. L., 7l5), as amended by the act of March 15, 1898, section 7 (30 Stat. L., 316), it is made the duty of the heads of Departments to require of clerks and other employees in their respective Departments “ not less than seven hours of labor each day except Sundays, and days declared public holidays by law or Executive order.”

*209The proviso to each of the sections referred to, however, gives to the heads of Departments authority, “ by special order, stating the reasons therefor, to further extend or limit the hours of service of any clerk or employee in their Departments, respectively; ” but in case of an extension it is expressly provided that “ it shall be without additional compensation.” That is to say, if the hours of service be extended to include work in excess of seven hours in any day except on Sundays and days declared public holidays, such service shall be rendered without additional compensation.

As said section 1389 is silent on the subject of pay to those who perform labor as well as to those who perform no labor on the days therein designated as holidays, authority therefor, if it exists, must be found elsewhere.

Under section 1545, quoted above, the claimant, a per diem employee, is entitled to be paid only when “ actually employed,” unless that condition has been modified or repealed by some subsequent statute.

By joint resolution of January 6, 1885 (23 Stat. L., 516), the employees of the navy-yard, as well as the employees of certain bureaus, were allowed January 1, February 22, July 4, December 25, and such other days as might be designated by the President as days of national thanksgiving, as holidays, with the right to receive the same pay on said days as on other days.

By joint resolution of February 23,1887 (24 Stat. L., 644), Memorial or Decoration Day was added as a holiday for all the employees of the Government, with the right to receive the same pay on that day as on other days.

Prior to the act of June 30, 1902, amending section 1389, Congress, by the act of February 1, 1901 (31 Stat. L., 746), granted to all the employees of the navy-yard and the gun factory, naval stations, and arsenals of the United States “ fifteen working days’ leave of absence each year, without forfeiture of pay during such leave.”

The two resolutions referred to express the purpose of Congress respecting payment to the employees of the navy-yard and others there named on the holidays stated, and to that extent and that only section 1545 is modified. Congress *210evidently deemed such provision necessary to give such employees pay on such days — that is to say, to entitle such employees to pay on the holidays námed, Congress deemed it essential to make provision therefor, thereby in effect denying payment in the absence of such a provision.

As the pay given to employees for holidays when no work is performed is a gratuity, there must be some law authorizing it. As before stated, the claimant’s contention is grounded on the Navy regulation, supra, which provides the ordinary rate of pay with 50 per cent additional for work performed on Sundays and holidays; and this regulation the claimant contends has the force and effect of law. But. whether it has or not is immaterial, as the work in the navy-yard is under the control and direction of the head of the Navy Department, and when he directs work to be performed by per diem employees on holidays the regulation, if it has not the force of law or does not contravene some statute,, operates as a contract between the Government and those who-work under it. •

The regulation, however, was in force before the passage of the act declaring Saturday afternoon a holiday, and it has not been extended to include Saturday afternoon. On the contrary, after August 22, 1903, when the claimant was required to work on Saturday afternoon he was expressly informed that he would be given no additional compensation. Prior thereto the claimant had worked Saturdays afternoon and had been paid therefor his ordinary rate of pay, which he accepted without objection, and it is now too late to claim more even if he were otherwise entitled thereto. *(Garlinger*v. *United*States, 169 U. S., 316.) See also the cases of *Whitsell*(31 C. Cls. R., 5), *Johnston*(37 Ibid., 309), and *United States*v. *Martin*(94- U. S., 400). The information conveyed to the claimant and those of his class on August 22, 1903, .was in the form of an order as follows:

“Until further orders the clerks and all other employees of the Navy Department and the various bureaus and offices under its jurisdiction in the District of Columbia, including" the navy-yard, will render service on Saturdays during the same hours as on other days. Kef erring to section 5 (c), article 1600, United States Navy Regulations, it is further ordered that no additional compensation shall be allowed to-*211any employee by reason of the extension of the hours of service to include Saturdays after 12 o’clock noon.

“ This order is rendered necessary by the condition of the work of the Navy Department.

“ By direction of the Secretary of the Navy.

“ CHARLES H. DARLING,

*“Acting*Secretary.”

It is insisted that the Secretary of the Navy had no authority to issue that order; that the first regulation referred to had the approval of the President, pursuant to Devised Statutes, section 1547, while the order was issued by the Secretary, without the approval of the President, and that therefore the claimant is entitled to the benefit of the provisions of the first regulation. True, the regulations of the Army and Navy have the force of law with respect to the person or subject-matter over which the Secretary has official control. *(Gratiot*v. *United*States, 4 How., 80; *Smith*v. Whitney, 116 U. S., 167.) Such regulations, however, to have the force of law, must conform to the law. *(Symonds case*(21 C. Cls. R., 148), affirmed on appeal, 120 U. S., 46.)

Under Devised Statutes, section 1547, the orders, regulations, and instructions issued by the Secretary of the Navy, as well- as alterations thereof, are presumed to have been issued “ with the approval of the President,” though they do not bear his signature.

In the case of *Truitt*v. *United States*(38 C. Cls. D., 398, 403), respecting the power of the President to act for the heads of the several Departments, the court said:

“ There can be no question but that the President may legally act through the head of a Department. It may be said in general that while the superintendence of the Administration devolves upon the President, he can not be required to become the head of every Department for the performance of ministerial acts under his own hand, and such was the effect of the ruling in the case of *Williams*v. *The United States*(1 How., 290).

“ That case followed the case of *United States*v. *Eliason*(16 Peters, 291, 302), where it was held, in respect of the rules for the regulation of the Army, that ‘ the Secretary of War is the regular constitutional organ of the President for the. administration of the military establishment of the nation; the rules and orders publicly promulgated through *212him must be received as the acts of the Executive, and as such be binding upon all within the sphere of his legal and constitutional authority; ’ and further, that £ such regulations can not be questioned or defied because they may be unwise or mistaken.’

“ Later, in the case of *Runkle*v. *United States*(122 U. S., 543, 557), in respect of the right of the President to act through the Secretary of War in the approval of the proceedings and sentence of a court-martial dismissing an officer from the United States Army, it was said: ‘ There can bé no doubt that the President, in the exercise of his executive power under the Constitution, may act through the head of the appropriate executive department. The heads of Departments are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts. That has been many times decided by this court. *Wilcox*v. Jackson, 13 Peters, 498, 513; *United States*v. Eliason, 16 Peters, 391, 302; *Confiscation*Cases, 20 Wall., 92, 109; *United States*v. Farden, 99 U. S., 10, 19; *Wolsey*v. *Chapman,*101 U. S.,*755,*769.’ ”

However, as the first regulation referred to was not extended to include work performed on Saturday afternoon, and there was no law otherwise providing extra pay therefor, the order of the Secretary requiring the claimant to work at his ordinary rate of pay was not in conflict with the first regulation, for the reason that had the claimant performed the work without the order fixing the rate of pay, he would not have been entitled to extra pay under the first regulation.

Where Congress provides the ordinary rate of pay to per diem employees on holidays, as in the resolutions referred to, and they are required to perform labor on such days, then it is within the power of the head of a department, in the absence of any statute to the contrary, to make provision by regulation or contract to pay extra for services so performed. That is to say, when the statute declares certain days to be holidays and provides that certain employees shall receive the same pay on these as on other days, they are thereby exempt from work, with pay, on such days. That being so, to require thejn to work on such days at their ordinary rate of pay would be depriving them of the benefit of such statute. But it does not follow that exemption from work on such days carries with it the right to pay, as the right to pay as *213well as the holidays is a matter of law; and if Congress in declaring certain days holidays makes no provision for payment to per diem employees on such days then section 1545 controls, and compensation can only be made for the time “ they may be actually employed.”

This view is in harmony with the decision of the Comptroller (11 Comp. Dec., 58), where it was held that neither per diem employees nor day laborers at the Washington Barracks were entitled to pay for the Saturday half holidays provided for by said section 1389 unless they worked during such half holidays.

Actual employment, then, is the basis for pay, and, as there is no law giving pay on Saturday afternoon without work, the claimant was not deprived of any statutory right when he was required to work at his ordinary rate, and therefore he is not entitled to recover, and his petition is dismissed.