#### ALFRED *J.*KINGSTON v. THE UNITED STATES.

[No. 29095-29097.

Decided December 14, 1908.]

*On the*defendants’ *Demurrer.*

The questions involved in this case are: (1) Whether a *“substitute letter carrier”*is entitled to pay while he is familiarizing himself with the duties to he performed by him; (2) whether he is entitled to extra pay for service in excess of eight hours a day.

*45I.There is no law authorizing payment to a “ *substitute letter carrier ”*for time consumed in familiarizing himself with duties to be performed when he shall take the place of the regular letter carrier. The time spent by him in qualifying himself to perform the service when the r'egular letter carrier ceases to perform it is not service rendered.

II.The second question is answered by the decision of the court in the preceding case of Alderman.

III.The *Appropriation Act Sd*March, *1.901*(31 Stat. L., pp. 1099, 1103), making appropriations for pay of letter carriers and of substitute letter carriers can1’ not be held to create new rights. It only carries out existing law.

*The Reporters’*statement of the case:

The facts of the case will be found stated in the opinion of the court.

*Mr. Frederick De C. Faust*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the demurrer.

*Mr. George A.*and *Mr. Archibald King*opposed. *Messrs. Geo. A. c& Wm. B. King*were on the brief:

Since this case involves mainly a question of statutory construction, we will gather together at the opening of this brief all the statutes bearing upon the status of letter-carriers.

The employment of letter-carriers was first authorized by the following provision *(Act of March*3,1863,12 Stat. L., 703):

“ Sec. 11. *And be it further enacted,*That letter-carriers shall be employed at such post-offices as the Postmaster-General shall direct for the delivery of letters in the places respectively where such post-offices are established; ” etc.

The employment of substitute letter-carriers was authorized by the *Act of August 8, 188®*(1 Supp. R. S., 363) :

“ That the Postmaster-General be, and he hereby is, authorized to appoint one or more substitute letter carriers, whose compensation shall be one dollar per annum and the pro-rata compensation of the carriers whose routes they may be required to serve.”

The *Act of June 87,1884-,*provided further (1 Supp. R. S., 446) :

“ *Be it enacted, etc.,*That all letter-carriers at free-delivory offices shall be entitled to leave of absence, not to exceed *46fifteen c^s in each year, without loss of pay; and the Postmaster-General is hereby authorized to employ, when necessary, during the time such leave of absence is granted, such number of substitute letter-carriers as may be deemed advisable, who shall be paid for services rendered at the rate of six hundred dollars per annum.”

The original act of 1863 authorizing the employment of letter-carriers was on January 3, 1887, superseded by the following (1 Supp. R. S., 518) :

“ *Be it enacted, etc.,*That letter-carriers shall be employed for the free delivery of mail-matter, as frequently as the public business may require, at every incorporated city, village, or borough containing a population of fifty thousand within its corporate limits, and may be so employed at every place containing a population of not less than ten thousand, within its corporate limits, according to the last general census, taken by authority of State or United States law, or at any post-office which produced a gross revenue, for the preceding fiscal year, of not less than ten thousand dollars.”

Next comes the eight-hour act for letter-carriers, under which arose the test cases of *Post*(27 C. Cls., 244; 148 U. S. 124), and *Gates*(27 C. Cls., 244; 148 U. S. 134), and under which thousands of carriers have recovered in this court extra pay for overtime. This is also the act upon which the present claim is based. It is as follows *{Act of May*84, 1888,1, Supp. R. S., 587) :

“An act to limit the hours that letter-carriers in cities shall be employed per day.

“ *Be it enacted, etc.,*That hereafter eight hours shall constitute a day’s work for letter-carriers in cities or postal districts connected therewith, for which they shall receive the same ]pay as is now paid as for a day’s work of a greater number of hours. If any letter-carrier is employed a greater number of hours per day than eight he shall be paid extra for the same in proportion to the salary now fixed by law.”

Atkinson, J.,

delivered the opinion of the court.

This case involves two claims:

First, for time consumed in learning the work to enable the claimant to perform the service (Sept. 9, 1901), i. e., assisting and receiving instruction from a regular letter-carrier who was at the time on duty and was paid therefor. For this one day in so familiarizing himself with the duties to be *47performed he claims $2.78, being at the rate of $1,000 per year, which amount ivas the salary of the regular carrier;

Second, for work performed January 10, 1902, in place of a letter-carrier on leave of absence, in excess of eight hours per day.

The claimant bases his right to recover for the time so consumed in familiarizing himself with the work to be performed under either the *Act of August 2, 1882*(22 Stat. L., 185), or the provisions in the *Appropriation Act of March 3, 1901*(31 Stat. L., 1099, 1103).

There is no law authorizing payment to a substitute letter-carrier for time consumed in familiarizing himself with and preparation for the discharge of his duties, even though such preparation consists in assisting a regular carrier in routing and delivering his mail, especially when such regular carrier is on duty, as he was in this case, and was rightly paid therefor. Properly speaking, the claimant was not on duty, but was being instructed by such regular carrier in the duties on the route he was to serve.

The act of August 2, 1882, supra, provides, among other things, “ that the Postmaster-General be, and he hereby is, authorized to appoint one or more substitute letter-carriers, whose compensation shall be one dollar per annum and the pro rata compensation of the carriers whose routes they may be required to serve.” * * *

That act can hai^e no application to the time consumed by the claimant in familiarizing himsef with the duties of the office he was required to perform. He was not on duty in the place of the carrier whose route he was required to serve.

The *Appropriation Act March 3, 1901*(31 Stat. L., 1099, 1103), upon which the claimant also relies, making appropriation “ for pay of letter carriers in offices already established, and for substitute letter carriers, and for temporary carriers at summer resorts, holiday, election, and emergency service, sixteen million eighty thousand and nine hundred dollars,” can not be held to create new rights, but only to carry out existing law.

The appropriation does not authorize the employment of letter carriers or substitute letter carriers, but names the *48character of service to be performed under existing law, for which the appropriation is made.

The view we thus take of this branch of the case renders it unnecessary to consider whether the proviso to the *Appropriation Act of June 2, 1900*(31 Stat. L., 257), “ for pay of letter carriers in new offices ” is in the nature of general legislation or applicable only to the fiscal year of that appropriation.

Therefore, on this branch of the case the claimant is not entitled to recover, even though the *Act of May 1888*(25 Stat. L., 157), granting *pro 'rata*pay to letter carriers for services in excess of eight hours iier day were applicable to substitute letter carriers.

The second claim herein is for time employed one ‘day as a substitute letter carrier in excess of eight hours, but this question was considered and passed upon in the *Alderman case*(ante, p. 35), and need not be further considered here.

Our conclusion is that the defendant’s demurrer should be sustained and the petition dismissed, and it is so ordered.

Barney, J., was absent on account of illness when this case was tried and took no part in its decision.