#### J. C. ALDERMAN v. THE UNITED STATES.

[No. 21806.

Decided December 14, 1908.]

*On the Proofs.*

The question involved in this case is whether a *“substitute letter carrier”*is entitled to extra pay for services performed in excess of eight hours a day.

I. *“Substitute letter carriers”*and regular *“letter carriers”*have always been treated by the Post-Office Department and by Congress as distinct classes.

*36II.The employment of “ *substitute letter carriers ”*is authorized by the *Act 2d August, 1882*(22 Stat. L., 185). The compensation. thereby authorized is “ *one dollar per amvwm and, the pro rata compensation of the carriers whose routes they may be required to serve."*

III. The' statute first declaring that *eight hours shall constitute a day’s worh for letter carriers ”*is the subsequent *Act 21¡th May, 1888*(23 Stat. L., 60), which also provides that if any “ *letter carrier ”*is employed more than eight hours a day “ *he shall be paid for the same in proportion to the salary noio fuoed by law.”*But it does not extend to “ *substitute letter carriers."*

IV. The reason why the statute allowing extra pay for an excess of service does not extend to “ *substitute letter carriers ”*is that to so construe it would be putting a premium upon inexperience and inefficiency. The regular letter carrier’s working time is limited by law and in practice to eight hours, and if the inexpert substituted can not do the same work in the same time he can not reasonably be paid more for it than his principal.

*The Reporters'*statement of the case:

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

*Mr. George A.*and *Mr. Archibald, King*for the claimants. *Messrs. Geo. A. & William B. King*and *Mr. William E. Harvey*were on the brief:

The act of May 24, 1888, has both by many adjudications in the nineties and in the recent Warfield case been held to extend to substitutes, nor is this unjust.

The regulations forbidding overtime were interpreted by the postal officials as not referring to substitutes. In the absence of regulations forbidding overtime, there is no room for the operation of the “ knowledge and consent ” defense.

By the time sheets the postmaster was officially charged with notice that the substitutes were making overtime. The overtime was made by direction of the foreman and superintendents to whom the postmaster, on account of the magnitude of the office, had to delegate the supervision of carriers.

A carrier’s pay is independent of his protests or expectations, and is fixed by the statutes relative to his office.

Unrecorded overtime made at commencement of work was not contrary to any regulation applicable, and was made *37with the knowledge, and in many cases by direction, of authorized subordinates. It has been held many times that for such overtime pay should be allowed.

The court is asked to hold as it has done hitherto that pay is allowable for all overtime necessarily spent in the discharge of official duties.

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

1. It will be observed that the law provides that eight hours shall constitute a day’s work for “ letter carriers.” There is no provision made for “ substitute letter carriers.” The language in the last paragraph of the act, that if “ any letter carrier is employed a greater number of hours than eight,” clearly relates to those mentioned in the first paragraph, namely, “ letter carriers.” It was not intended to include substitute letter carriers.

It is true that the statute, being a beneficial one, should be liberally construed, but its bónefits must of course be restricted to the intention of the act. *(Smythe*v. *Fiske,*23 Wall., 380.)

Under the plaintiffs’ contention the substitute is entitled to be paid extra compensation by the Government for the additional two hours’ work it took him to serve the route, al-thougli the regular carrier would not have earned it, and this, too, in direct violation of the act of August 2, 1882, which expressly limits the substitute’s compensation to one dollar per annum and the pro rate pay of the carrier whose route he served. Thus it will be seen that there is not only no provision of law under which the substitute can be paid for the two hours worked in excess of eight hours, but that the claim is in direct violation of the express provision of the statute prescribing the substitute’s pay.

The principle contended for would certainly remove all incentive to substitute carriers either to learn their work or to perform it expeditiously, according to the regulations of the department, if the doctrine is to prevail that the carrier who works the most slowly is to receive the highest pay. But it is said that a somewhat similar argument was advanced and overruled in the original letter-carrier cases, in which the eight-hour law was first construed *(United States*
      *38v. *Post,*148 XJ. S., 127, 27 C. Cls., 259; *United States*v. *Gates,*id., 134, 27 C. Cls., 567), and that such considerations as we now urge in this case are for Congress and not for this court.

First, let us say that the application of the law to “ letter carriers” is clear upon its face and standing alone is susceptible of but one construction, hence the court was bound in these cases to so construe it. But here an altogether different principle is involved, which we insist must govern the decision of this case and which the Supreme Court has so clearly stated in *Hamilton*v. *BatTibone*(175 XJ. S., 419) :

“ The general rule is perfectly settled that where a statute is of doubtful meaning and susceptible upon its face of two constructions, the court may look into prior and contemporaneous acts, the reasons which induced the act in question, the mischiefs intended to be remedied, the extraneous circumstances, and the purpose intended to be accomplished by it, to determine its proper construction. But where the act is clear upon its face, and when standing alone it is fairly susceptible of but one construction, that construction must be given it. *(Heydon's ease,*3 Fed. Bep., 76; *United States*v. *Freeman,*3 How., 556; *Smythe*v. *Fishe,*23 Wall., 374; *Platt*v. *Union Pacific Railroad Go.,*99 XJ. S., 48; *Thornley*v. *United States,*113 XJ. S., 310; *Viterbo*v. *Fried-lander,*120 XJ. S., 707, 724; *Lahe County*v. *Rollins,*130 XJ. S., 662; *United States*v. *Goldenberg,*168 XJ. S., 95.)”

Applying that rule to the facts as disclosed in this case, it is impossible- to believe that Congress intended to extend the eight-hour law to substitute carriers. Certainly in the absence of most explicit language to the contrary no such intention should be indulged.

2. The substitutes whose claims are here involved were not “ employed ” to work more than eight hours within the meaning of the act. *(Laurey et al.*v. *United States,*33 C. Cls. B., 264; *Seville et al.*v. *United States,*32 C. Cls., 495.)

It is urged in plaintiffs’ behalf, however, that the views of the court expressed in the Seville and Laurey cases were overruled by the subsequent entry of judgment in the same cases for the same overtime pay which was at first refused. This statement is altogether erroneous.

*39As the facts in the case at bar show that neither the postmaster at Chicago nor the Postmaster-General had knowledge of the fact that overtime was being made by substitute letter carriers in the Chicago post-office, and in view of the further fact that such knowledge or consent can not be presumed or implied in face of the rigid instructions from the Postmaster-General prohibiting the making of overtime, of which the plaintiffs herein had full notice, it is clear that they are not entitled to recover in this action, and their petitions should be dismissed.

3. It is conceded by the plaintiffs that the construction of the Post-Office Department has been uniform, that the regulations forbidding the making of overtime did not apply to substitute carriers, which of course includes the further construction that the eight-hour law was not applicable to them.

The principle has long been settled that except in cases of clearly demonstrable error by a department charged with the execution of a law the courts will not oyerturn a construction long held and acted upon. In *United States*v. *Moore*(95 U. S., 160-713), the Supreme Court said:

“ The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. *(Edwards*v. Darby, 12 Wheat., 210; *United States*v. *The State Banh of North Carolina,*6 Pet., 29; *United States*v. *MacDaniel,*7 id., 1.) The officers concerned are usually able men and masters of the subject. Not unfrequently they are the draftsmen of the laws they are afterwards called upon to interpret.”

Atkinson, J.,

delivered the opinion of the court:

This is the claim of a substitute letter carrier for extra pay under the act of May 24, 1888 (1 Supp. R. S., 587), for services alleged to have been performed in excess of eight hours per day at the post-office at Chicago, Ill., prior to the year 1900.

About 400 similar claims of substitute carriers at the same post-office, identical in all respects except only as to the amount involved, have been filed in this court and will be controlled by the decision of this cause. This is, therefore, *40in the nature of a test case, and is before us upon the petition and an agreed statement of fact which presents all the questions of law involved in all the cases.

In August, 1893, the plaintiff Alderman was appointed a substitute letter carrier in the post-office at Chicago, Ill., and served as such for a period of about three years under authority of the Postmaster-General and the postmaster of that city.

In the petition it is alleged that under the laws of Congress the plaintiff is entitled to be paid for time in excess of eight hours per day as such substitute letter carrier.

For the recovery of the excess of time alleged to have been served by him over and above the eight hours required of regular letter carriers in the postal service, this suit is brought.

Two points are involved in the controversy before us:

1. Are *substitute*letter carriers included in, or embraced by, the eight hour per day law governing *regular*letter carriers in the mail service ?

2. Are substitute letter carriers employed on the eight-hour basis, or can they, under their employment, be required to work in excess of eight hours per day without being paid extra for such excess of time?

The employment of substitute letter carriers was first authorized by the act of August 2, 1882 (1 Supp. E. S., 363), as follows:

> “ That the Postmaster-General be, and he is hereby, 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 27, 1884 (1 Supp. R. S., 446) provided:

> *“ Be it*enacted, eic., That all letter carriers at free-delivery offices shall be entitled to leave of absence, not to exceed fifteen days 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.”

*41Next came the “ eight-hour act ” lor letter carriers, upon which the present claim is based. It is as follows (act of May 24, 1888, 1 Supp. K,. 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.”

While it is true, as stated by plaintiffs’ learned counsel, the court has upon the report of the commissioner, without opposition on the part of the attorneys for the Government, allowed the claims of a few substitute letter carriers for extra hours of service, yet we do not agree with him in his contention that the rule of *stare deeicis*can apply, for the reason that this is the first case that has been brought before the' court in which a construction of the statutes involved as applied to substitute carriers has been invoked by the defendants.

The first question is, Are substitute letter carriers included in the act of May 24, 1888, *sufra?*

This statute in terms applies to *letter*carriers, and to no other class. A *substitute*is one tvho takes the place of another; and while it is true that a substitute letter carrier when on duty performs identically the same service as a letter carrier, yet under the postal service and postal regulations the two positions have always been kept separate and distinct by the Post-Office Department. A substitute carrier is a probationary official, who is held in reserve by postmasters to take the place of a regular carrier when he is necessarily absent from duty, and is expected to perform a probationary service, until by experience and training he becomes proficient and useful to the public service and is appointed to take the place of a regular carrier when a permanent vacancy occurs. The distinction between the two positions, therefore, is something more than a mere difference in grade.

*42Moreover, the authority for the appointment of substitute letter carriers, the measure of their compensation, and their contract of employment differ materially from those of regular letter carriers. They are appointed under different acts of Congress, and the regulations of the postal service have invariably kept them in separate classes. The position of substitute letter carrier was first created under the act of August 2, 1882, supra, which act was supplemented by the act of June 27,1884, *supra.*

The number of regular letter carriers in the postal service is regulated by the demands of the public, and is restricted to towns and cities containing a stated population, and the power to increase or diminish their number is invested in the Postmaster-General. There is no restriction as to the number of substitute letter carriers the Postmaster-General is authorized to employ. Tegular letter carriers are paid stipulated salaries of $600, $800, and $1,000 per year, while substitute letter carriers are paid $1 per year and the *pr'o rata*pay of the absent regular carrier whose route they are required to serve. Furthermore, in all appropriations made by the Congress for the maintenance of the mail service of the United States since 1897, regular and substitute mail carriers have been kept separate.

The act of May 24, 1888, being in specific terms, does not apply to substitutes, unless we read into the act the words *substitute letter carriers,*and thus place them on an equal footing with, regular letter carriers; but the language of the act being unambiguous is not susceptible of construction and therefore excludes substitute carriers.

Under the regulations of the Post-Office Department, regular letter carriers are not allowed to remain on their respective routes for a longer period than eight hours per day. This regulation for years has been urgently and vigorously enforced; but such requirement has never been applied to substitute carriers. When a substitute takes the place of a regular carrier, he is expected to do the work of that carrier. Owing to the lack of experience and efficiency in the service, however, he usually requires more time to complete his work, but the Postmaster-General and the postmasters evidently never contemplated that a carrier, who was on probation for the purpose of equipping himself for the *43public service, should or would expect or demand greater compensation for his time and service than an experienced man in the same service; and hence the department rule which was applied to a regular carrier to return his undelivered mail- to the post-office at the expiration of eight-hours’ service, was never applied to a substitute carrier. It is evident, we think, that any other rule than this would place a premium iqpon inefficiency, which would necessarily result disastrously to the mail service. If a regular carrier can and does perform his daily duties in eight hours, and a substitute takes his place and, because of his inefficiency, devotes ten hours to perform the same amount of work, it borders on the ridiculous to claim that he should receive two hours more pay for such service than his principal received for only eight hours’ work. It can not, therefore, be presumed that the Congress intended by the act under consideration to provide greater compensation to substitutes than to regular letter carriers for doing the same amount of work. Routes of carriers are arranged as the result of practical tests, and no carrier is assigned to do or perform an excessive amount of service. He is assigned to cover a certain amount of territory in the delivery of mail matter which the practical tests have shown he is able to do within the eight-hour limit, and he is not expected nor allowed to go beyond that limit. If, therefore, a substitute requires more time to perform the duties of his principal and receives the full amount of pay allowed his principal under the postal laws, can anyone justly claim that such substitute should receive a greater amount of compensation simply because he is less proficient as a carrier of mails ?

We can not conceive, therefore,, that the Congress ever intended any such extra time and pay should be allowed for such service. To illustrate further: Under the regulations of the Post-Office Department a regular letter carrier serves his route and returns within eight hours to the post-office and is entitled to receive, and does receive, his *pro rata*pay for such service. The next day he is prevented by sickness or by some other legitimate reason from discharging his duties as a letter carrier, and a substitute carrier is assigned by the postmaster to fill his place. The substitute, because of lack of experience or want of energy or activity, requires *44ten hours to do identically the same work. The substitute is entitled to and is paid the full compensation allowed by law to the regular carrier, but because he used two hours more time to .do the work of the regular carrier, he claims that he is entitled to two hours extra pay from the Government for his services. Such contention, it seems to us, is not only inequitable, but it is in direct conflict with the act of August 2, 1882, supra, which expressly limits a substitute carrier’s compensation to $1 per year and the *fro rata*pay of the regular carrier whose route- he was assigned by the postmaster to serve. lienee, it is apparent that there is no provision of law under which the substitute carrier can be paid for the two hours extra time in excess of eight hours; and at the same time such claim is in direct violation of the statute which prescribes the pay of the substitute carrier. Looking at the case from this standpoint, we do not believe that the Congress intended to extend the “ eight-hour law ” to substitute letter carriers.

The second question is answered in the first, for if the act of May 24, 1888, does not apply to substitute letter carriers, as we hold it does not, then it is immaterial whether the substitute, in the performance of his duties, works in excess of eight hours per day, for if he does there is no provision of law by which he can be paid therefor. Under the act of his appointment, as before stated, he is only entitled to the *fro rata*pay of the carrier whose place he takes, and that is the full measure of his compensation.

The petition is dismissed.

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