#### THEODORE J. VAN DOREN v. THE UNITED STATES.

[No. 30413.

Decided May 31, 1910.]

*On the defendants' Demxtrrer.*

The demurrer presents the legal question whether letter carriers are still entitled to recover for overtime where they are required to work more than eight hours in any one day, or whether the right to such additional compensation has been restricted to cases where they have been required to work more than forty-eight hours in a week of six days.

I.Where a claim is one coming within the general jurisdiction of the court which the head of an executive department has referred under the Revised Statutes (§ 1063), and also under the Bowman Act (§ 2), and the claimant has appeared and demanded judgment, the court will disregard the reference under the Bowman Act.

II.Where a statute appropriates money *“For pay of letter carriers in new offices entitled to free delivery service under existing law,”*with a proviso “ *that letter carriers may he required to work as nearly as practicable only eight hours on each working day, hut not in any event exceeding forty-eight hours during the six working days of each week,”*the proviso must be construed as a permanent remedial amendment of the existing eight-hour law, and both acts must be construed *in pari materia*and in harmony with the evident intent of the later enactment.

III. A proviso is generally intended to restrain the enactment clause or to except something which otherwise would have been within it; but where the legislature intends a more comprehensive meaning the proviso must be held to enlarge the general scope of the act. The intent is paramount to form.

IV. It is not to be assumed in the absence of clearly expressed intent that Congress intended to segregate letter carriers at new offices and apply” only to them a new rule for regulating compensation and estimating overtime.

V.The fact that the Post-Office Department gave a different interpretation to the statute favorable to letter carriers at large can not prevail in the courts against the clear and unambiguous language of the statute.

*The Reporters'*statement of the case:

The facts set up in the petition sufficiently appear in the opinion of the court.

*477
      *Mr. Frederick Be G. Faust*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the demurrer.

*Mr. Archibald King*opposed. *Messrs. George A.*and *William B. King*were on the brief:

The Supreme Court has held many times that save in case of clearly demonstrable error by the department it would not overturn a construction long held and acted upon. *(United States*v. *Moore,*95 U. S., 760, 763.)

So often has this principle been affirmed and applied that we know of no other more thoroughly established in our administrative law. *(Permoyer*v. *McGonnaughy,*140 U. S., 1, 25; *Stuart*v. *Laird,*1 Cranch, 299; *Union Insurance Go.*v. Hoge, 21 How., 35; *United States*v. Pugh, 99 IT. S., 265; *Ilahn*v. *United*States, 107 U. S., 402; *Brown,*admix, v. *United States,*113 U. S., 568; *United States*v. *Alabama G. S. B. B. Go.,*142 U. S., 615; *Ilewitt*v. *Schultz,*180 U. S., 139; *United States*v. *Finnell,*185 U. S., 236; *Potter*v. *Hall,*189 U. S., 292; *United States*v. *Sweet,*189 TJ. S., 471; *Mc-Michael*v. *Murphy,*197 U. S., 304.)

The language of the statutes construed appears in many of these cases scarcely capable of bearing the interpretation put upon it by the departments. Yet the Supreme Court has felt constrained to follow the practical construction of the statutes by those executing them. Thus, in *Brown, adm'x,*v. *United States, supra,*the question -was whether a boatswain might be placed upon the retired list under a statute' authorizing the retirement, under certain conditions, of “ any officer of the navy.” A boatswain is not known as an “ officer ” in the navy. The court admitted that if the question were a new one it would be open to doubt, but held itself bound by the uniform departmental construction that the language included warrant as well as commissioned officers.

The principle that a contemporaneous executive construction is to be followed unless clearly wrong has been announced in the following decisions of this court: *Hahn*v. *United States,*14, C. Cls. E.., 305; *Swift c& Oourtney cSt Beecher Go.*v. *United States,*14 C. Cls. R., 481; *Brown,*
      *478
      *admx.,*v. *United States,*18 C, Cls. R., 537; *Alabama S. B. B. Go.*v. *United States,*25 C. Cls. R., 30; *Beichherzer*v. *United States,*43 C. Cls. R., 359.

In this case we ask that the court should not by its decision revive a law which has been regarded by all parties for many years as dead. This is exactly what the court refused to do in *Jonathan Brown*v. *The United States and The Brule Sioux*(32 C. Cls. R., 432, reversing 32 C. Cls. It., 411), even though the court was of opinion that the law in question had never been formally repealed or otherwise abrogated.

Under the circumstances, we submit that the court should follow the twice-considered *Jonathan Brown case.*It would be productive of nothing but confusion if the courts in a case like that at bar should interfere and revive a long since dead provision. The court is asked to note in this connection that Congress, though informed by the Postmaster-General’s report of 1901 that the act of 1900 has been treated as temporary and expired, has passed no subsequent legislation to revive it or to make it permanent. Thus we have a departmental construction acquiesced in by Congress in treating the provision as only temporary and as one which has never been revived or thought desirable to revive. A stronger case of an executive construction acquiesced in by the legislative branch of the Government could hardly be imagined.

Scores of cases might be cited to show that state courts take the same position as federal as to practical executive construction, but the following must suffice: *Bogers*v. *Goodwin,*2 Mass., 475; *State Board of Tax Gomrs.*v. *Holliday,*150 Ind., 216; *People ex rel. Stevens*v. *Fidelity c& Casualty Go.,*153 Ill., 25; *Kelly*v. *Multnomah County,*18 Oreg., 356.

We have here a proviso which is presumed to apply only to that which immediately precedes it, unless the contrary clearly appears. Furthermore, this proviso is in an annual appropriation act, whose object is but temporary, no part of which is deemed permanent unless it shows itself beyond doubt to be so.

If this proviso be not temporary, it constitutes an abandonment of the eight-hour principle to which Congress is so thoroughly committed. This proviso has been construed as *479temporary by the executive officers charged with its enforcement. Their construction has for six years been acquiesced in by all government officials, by the thousands of letter carriers involved, and by Congress.

Under the_ above circumstances nothing short of an express declaration of its permanency or the most unavoidable implication would justify this court in holding it permanent. And Avhen we look into the proviso do we find such? Not a single syllable therein gives the slightest hint that it was to be permanent. Hence the demurrer can not be sustained upon this ground. Even if, however, the act of June 2, 1900, be treated as- permanent legislation, it does not, interfere with the provision of the act of 1888 for extra pay for all work in exces of eight hours a day.

Are the two acts “ irreconcilable ? ” Is the repugnance “necessary and unavoidable?” On the contrary, here is nothing contradictory, nothing incongruous. The two laws read together as harmoniously as if they had been enacted as one. By no ingenuity of reasoning can it be said that the provision has been repealed. Indeed, the earlier provision has only been strengthened. By the act of 1888, eight hoars are made a day’s work, and all work in excess of eight hours is to be paid for as overtime. By the act of 1900 eight hours are still the standard day’s work, and the provision of the act of 1888 for pay for overtime is not at all interfered with. But it is provided that in any event, even if carriers are required to work over eight hours and even if they do get extra pay for the overtime, their work is in no case to exceed forty-eight hours a week. This construction of the law harmonizes the two enactments, reads both as a single statute, requires no resort to doubtful implication to accomplish a repeal, and is more consistent with the policy of Congress as to eight-hour legislation.

AtkiNSON, J.,

delivered the opinion of the court:

The Postmaster-General transmits to the court under Be-visecl Statutes, section 1063 and section 2 of the act of March 3, 1883, for adjudication, the claim of a letter carrier in the post-office at Washington, D. C., for work alleged to have been performed by him in excess of eight hours per day.

*480The claimant voluntarily appears and files his petition herein, averring in substance that he was appointed February 9, 1909, a letter carrier in the post-office at Washington, D. C., at a salary of $600 a year; that during the week ending May 2, 1909, he was actually and necessarily employed in excess of eight hours a day on some days' and less than eight hours per day on other days; that by virtue of the act of May 24, 1888 (25 Stat. L., 157), he became entitled to extra pay for all time he was employed in excess of eight hours a day, and demands judgment accordingly.

Thereafter, counsel for the National Association of Letter Carriers, by leave of the court, appeared, filed a brief, and participated in the oral argument of the case.

As the claim is one which the Postmaster-General had the right to transmit under lievised Statutes, section 1063, without reference to the amount involved in the particular case, and the claimant has voluntarily appeared and filed his petition, asking that his claim be adjudicated to judgment, as he might have done independently of such reference, the court will disregard the reference under section 2 of the act of March 3, 1883, which looks only to the findings of fact for the guidance of the department.

To the petition the defendants file a demurrer on the ground/'that the petition does not allege facts sufficient to constitute a cause of action,” in this that the act of May 24, 1888, sufra, granting to letter carriers extra pay in proportion to their salaries when employed in excess of eight hours per day, was amended by the *proviso*in the appropriation act of June 2, 1900 (31 Stat. L., 252, 257), making appropriations for the support of the Post-Office Department, which reads:

> “ For pay of letter carriers in new offices entitled to free-delivery service under existing law, sixty thousand dollars: Provided, That letter carriers may be required to work as nearly as practicable only eight hours on each working day, but not in any event exceeding forty-eight hours during the six working days of each week; and such number of hours on Sunday, not exceeding eight, as may be required by the needs of the service; and if a legal holiday shall occur on any working day the service performed on said clay, if less than eight hours, shall be counted as eight hours without regard to the time actually employed.”

*481The plaintiff’s contention is that the *proviso*was temporary legislation contemporaneous only with the appropriation carried by the act, and such was the opinion of the Assistant Attorney-General for the Post-Office Department and upon which the department has since acted. That is to say, the department in practice applied the *proviso*only during the fiscal year of the appropriation ending June 30, 1901.

He further maintains that even if held to be permanent legislation and still in force, the *proviso*neither modifies nor repeals the prior eight-hour law, which is still effective and allows additional pay to carriers for all time spent at work in excess of eight hours in any one day.

The defendants contend that the *proviso*is permanent and independent legislation and should be applied generally to all letter carriers.

It is clear that if the *proviso*is temporary, it applied only to “ letter carriers in new offices entitled to free-delivery service under existing law,” but such was not the basis of the opinion of the Assistant Attorney-General.

The Postmaster-General in his report for 1898 (House document, vol. 13, 55th Cong., 3d sess., p. 151) stated that he had met with insurmountable trouble in applying the eight-hour per day law to letter carriers; that part of the time carriers are not required to work the full eight hours a day, and yet some days when the mail was heavy they could not deliver it within eight hours, and on such days overpay was demanded because it was necessary for carriers to work more than eight hours to complete their work. As a remedy he suggested six days’ work of forty-eight hours for each week of six working days, and as many hours on Sundays, not exceeding eight, as the exigencies of the service may require. His suggestion, however, was not heeded by the Congress.

Again, in 1899, he made the same recommendation, which was likewise unheeded. Still again, in 1900, he renewed the recommendation, the result of which was the proviso above quoted, and the Post-Office Department issued the necessary rules and regulations to carry the act into effect.

The question is, Did the Congress intend said enactment to be a temporary or a permanent amendment to the *eigM-*
      *482
      *hour leuw?*This is the first case in which an opportunity has arisen to obtain a judicial construction of said act by this or any other court.

In the construction of a statute a *proviso*is generally intended to restrain or qualify some preceding matter; but if it is apparent from the words employed that the Congress intended or designed a more comprehensive meaning, it may be diverted from its usual functions and enlarge the general scope of an act. In fact, it may, if consonant with legislative intention, assume the functions of an independent enactment.

Sutherland on Statutory Construction, section 223, says: “ The intention of the lawmaker, if plainly expressed, must have the force of law, though it may be in the form of a ' *proviso.*The intention expressed is paramount to form.” The rule is more freely stated by the same author in section 218, wherein he says:

> “ *Words expanded or limited to accord with intent.*It is indispensable to a correct understanding of a statute to inquire first what is the subject of it; what object is intended to be accomplished by it. When the subject-matter is once clearly ascertained and its general intent, a key is found to * all its intricacies; general words may be restrained to it, and those of narrower import may be expanded to embrace, it to effectuate that intent. When the intention can be collected from the statute, words may be modified, altered, or supplied so as to obviate any repugnancy or inconsistency with such intention.”

The purpose and scope of a *proviso*is well defined by the Supreme Court of Alabama in *Carroll*v. *The State*(58 Ala., 401): “ A proviso,” says Baldwin, J., “ in deeds and laws is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided.” *(Voorhees*v. *Bank of U. S.,*10 Pet., 471.)

In *Wayman*v. *Southard*(10 Wheat., 30) it was held that “ The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or in some measure to modify the enacting clauses.”

*483Another purpose for which it is often used is to exclude some possible misinterpretation of the general words of the enacting clause, as extending to cases not intended to be brought within its purview. *(Minis*v. *U. S.,*15 Pet., 423.) However, it does not necessarily follow because the term *'provided*is used that that which may succeed it is a *proviso,*though that is the form in which an exception is generally made to, or a restraint or qualification imposed upon, the enacting clause. It is the matter of the succeeding words, and not the form, which determines whether it is or is not a technical *proviso. (Smith*v. *The*People, 47 N. Y., 330; *Lafitte*v. *United States,*43 C. Cls. R., 166.)

In the case of *Henry*v. *United States*(27 C. Cls. R., 142), in considering the question of a *proviso*in an act of Congress, the court said: “A proviso is properly something en-grafted upon a preceding enactment for the purpose of taking special cases out of the general enactment; but the term ‘ provided ’ does not necessarily mean that that which follows is a *proviso*in its technical sense; it is the matter and not the form which determines. The long practice of Congress in enacting general legislation by *provisos*in appropriation acts must be recognized by the judiciary in the interpretation of such statutes.” See also *Telephone Company*v. Manning, 186 U. S., 238; *Georgia Banking Company*v. *Smith,*128 U. S., 174, 181; *United States*v. *Whitridge,*197 U. S., 135; *United States*v. *Falk,*204 U. S., 143, 149; *Prindle*v. *United States,*41 C. Cls. R., 8; *Hadden*v. *United States,*5 Wall., 107.

Plaintiff's counsel, after citing a number of authorities which we have examined and do not consider material in the case at bar, insists that if the appropriation act of June 2, 1900, were intended to be general it would contain the word “ hereafter,” so as to make it extend to and become a restriction upon the expenditures of appropriations for the maintenance of the letter carriers’ service in the future. We do not agree with this contention, for the reason that the *proviso*was evidently intended as a permanent remedial amendment of the prior *eight-hour law;*and, under the well-settled rule of construction, therefore, both acts, although passed upon *484different dates, must be construed *in pari materia*and their provisions compared and harmonized as though constituting one act. If not susceptible of such harmonious construction, both acts must be made to operate, as far as possible, consistently with the evident intent of the latest enactment. *(Sutherland on Statutory Construction,*secs. 283, 288; *United States*v. *Tyner,*11 Wall., 92.)

Furthermore, the clause, as we have already stated, on which the *proviso*is engrafted, together with the appropriation therein made, applies only to carriers at “ new offices entitled to free delivery; ” and if the *proviso*is to be treated as temporary, then it applies only to the class of carriers referred to and not to carriers generally. Certainly Congress did not intend to segregate the carriers at new offices and apply it only to them; and if not, then it applies to all carriers ; and if to all carriers, then the legislation was intended as permanent; and when read in the light of the mischief sought to be remedied, as pointed out by the Postmaster-General in his several annual reports, there can be no doubt but that the Congress, by the language used, intended the *proviso*as independent legislation, applicable alike to all carriers.

It is contended, however, that the departmental construction and practice preclude the court from so holding. True, the construction of a statute by those charged with its execution is entitled to great weight and should not be overruled without cogent reasons *(United States*v. *Moore,*95 U. S., 763), but as the language of the *proviso*is clear and unambiguous, it needs no interpretation; and therefore the ruling and practice of the department, contrary to its clear import, can not be upheld to defeat the purpose of the Congress by its enactment. This principle was clearly determined by the Supreme Court in the case of the *United States*v. *Temple*(105 U. S., 97), which has since been followed by that and all other federal courts. Moreover, the so-called “ practical construction ” and all subsequent acts of the postal authorities relied , upon by claimant’s counsel to establish it, rest entirely upon the correctness of the construction placed upon the act of Congress by the Assistant Attorney-General, with which we do not agree.

*485For the reasons given the demurrer must be sustained and the petition dismissed.

Booth, J., dissents.