#### STEPHEN VAN D. HALLENBECK v. THE UNITED STATES.

[No. 30685.

Decided October 20, 1913.]

*On the*defendants’ *Motion.*

The Postmaster General is authorized by law to appoint rural letter carriers. He establishes regulations to equalize compensation, upon the principle, the greater the distance the greater the pay. Upon the appointment of carriers the agents of the department estimate the length of the routes, and the *476carriers are assigned to the different classes accordingly. Where a route is between 20 and 22 miles the compensation affixed to that class is $810. Where the route is between 22 and 24 miles the compensation is $864. If the length of a route is subsequently ascertained by actual measurement to be sufficient to entitle a carrier to be in a higher class, the Postmaster General will transfer him to that class, and he will receive the greater compensation from the time of the transferí but the transfer will not operate retroactively.

I. Under the ¿Lei *April 12st, 1902*( 82 Stats., 107), and acts amendatory thereof, the Postmaster General is exclusively charged with the responsibility of classifying the Rural ETee-Delivery Idail Service and of fixing the compensation of the carriers, subject only to the restriction that no salary shall exceed $900.

II. The Postmaster General’s schedules of distance and compensation are for the information and guidance of the Department; they do not constitute a contract with the carrier. His right of action is defined and limited exclusively by the terms of his appointment.

III. Where a rural-delivery route is found by actual measurement to be longer than its distance, estimated at the time of the carrier’s appointment, the Postmaster General may correct the error so as to bring the carrier into the class in which the distance traveled entitles him to be, but the carrier can not maintain an action for back pay during the period of the mistake.

*The Reporter's*statement of the case:

The following are the facts of the case as found by the court:

I. The Post Office Department on April 20, 1903, authorized the establishment of rural mail service from the Green-ville (N. Y.) post office. Two routes specifically described were established and designated as routes Nos. 1 and 2. The claimant, Stephen Van D. Hallenbeck, was on July 1, 1903, appointed rural letter carrier and assigned to carry the mail on route No. 1 afqresaid, and was so employed up to and including December 1, 1909.

II. The Postmaster General, in pursuance of various statutes authorizing him to “ classify-the Eural Free Delivery Service and fix the compensation to employees in such service, on July 1, 1907, promulgated an order classifying the *477routes and basing the compensation of rural mail carriers traveling the samé Upon the length of the routes, as shown by the records of the Post-Office Department, as follows: ”

24 miles and over_$900

22 to 24 miles_ 864

20 to 22 miles- 810

18 to 20 miles_ 720

16 to IS miles_ 630

14 to 16 miles- 540

12 to 14 miles- 504

10 to 12 miles- 468

8 to 10 miles- 432

6 to 8 miles- 396

The above schedule was in force before and during all the timé covered by this case.

The Postmaster General did not, in pursuance of any of the acts of Congress referred to, promulgate an order or regulation fixing the schedule above quoted as the absolute basis upon which the salaries of rural carriers should be fixed, and such an order as that quoted in paragraph 5 of claimant’s petition was not issued.

III. The length of route No. 1 traveled by the claimant was certified by the department on October 17, 1905, to be 21f miles. On September 14, 1909, claimant complained to the postmaster at Greenville, N. Y., that he had had his said route surveyed by a competent civil engineer, and that it was in fact over 22 miles in length. The above complaint was transmitted by the postmaster at Greenville, N. Y., to the Post Office Department at Washington. The department dispatched an inspector to investigate the samé, and the inspector so appointed on November 11, 1909, notified the department in writing that he had personally measured the distance traveled by the claimant over said route No. 1 and that the same was in fact 22.10 miles in length, at the same time stating that claimant was entitled to an annual salary of $864 per annum. On November 29, 1909, the department notified the postmaster át Greenville, N. Y„ that the salary of claimant would be at the rate of $864 per annum instead of $810 per annum, éffective December 1, 1909.

*478IV. Claimant’s salary at the time of his appointment was fixed by the Postmaster General at $600 per annum (32 Stat. L., Pt. I, pp. 112, 113)', which under successive laws was increased until under the act of March 2, 1907 (34 Stat. L., Ft. I, p. 1215), he was paid $810' per annum until December 1, 1909, since which time he has been paid an annual salary of $864.

V. The Postmaster General, beginning in 1902 and since, under the various statutes authorizing him to classify and fix the compensation of rural mail carriers, has uniformly adopted the mileage basis for so doing. The practice of the department as indicated by the reports of the Postmaster General was to make up a schedule of each route, describing in detail the exact line of travel and the mileage incident thereto. In 1902 carriers on routes not less than 20 miles in length received the maximum compensation. In 1904 the distance schedule was changed and carriers traveling not less than 24 miles received the maximum compensation, excepting all carriers appointed prior to July 1, 1904, who under previous schedules had been receiving maximum pay although traveling shorter distances. In 1907 the schedule was again changed as to mileage traveled, which schedule is set forth in Finding II. In the report of the Postmaster General for 1907 for the first time it was set forth that compensation of rural carriers was fixed upon the length of routes traveled as “ shown by the records of the department.” In most instances the schedules have been followed; they have been varied in such instances as the Postmaster General seemed to think equitable and warranted. It has been the practice and vieiv of the department that the successive statutes relating to classification and fixing of compensation for rural mail carriers gave the department a wide latitude with respect thereto, and that they could increase or diminish the salaries of carriers, either as matter of discipline or when conditions so warranted, being limited only by the maximum amount fixed in the law.

VI. In establishing a rural mail route in States where the country is laid out in sections under the general survey made by the Government the Post Office Department sends *479ont an agent of the department, who personally inspects the proposed route or routes and is instructed to accurately ascertain the distance from point to point, from observation and from the most authentic information obtainable. A blue print or map containing a diagram of the proposed route or routes, drawn as nearly as possible to scale, is furnished the local postmaster, rural carriers being under the direction of the postmaster. In other States the agents are furnished with accurate measuring devices so that no controversy as to the length of the route can obtain and controversies as to the length of the route previously established can be satisfactorily determined. The route traveled by claimant, as shown by the records of the Post Office Department and the corrected distances, after complaint made, are, respectively, as follows:

*Route*iVo. *1.*

Miles. Beginning at the post office—

Thence south to Ooonly’s corner-M ^

Thence west to Shaw’s corner_

Thence north to Abram’s corner-,_ !->■ 1^

Thence west to Miller’s cornerbo «¡ts

Thence northeast to Ingall’s cornertfkjw

Thence southeast to Norton Hill post office corner_ «¡W

Thence north to Lamb’s corner-to

Thence southeasterly to Palmer’s residence and retrace— o¡-4

Thence northwest and southwest to Ryan’s corner_ K rfV

Thence southeasterly to Tallman’s corner-tO

Thence south to Norton Hill-

Thence east to cemetery corner-

Thence north to Bishop’s comer_

Thence east to Lockwood’s corner_•«1*4

Thence northeast to Myer’s residence and retrace-

Thence south to West GreenvilleWk

Thence east to post office_

Length of route-21§

Greenville post office to Craw’s corner- 1. 78

Craw’s corner to Shaw’s corner_,- . 78

Shaw’s corner to Abram’s corner- 1.31

Abram’s corner to Miller’s corner- 2. 40

Miller’s corner to Ingall’s corner- . 81

Ingall’s corner to Norton Hill_ . 37

Norton Hill to Lamb’s corner_ 2. 08

*480Lamb’s corner to Palmer’s residence and return_ Page. 1.22

Lamb’s comer to Ryan’s corner_ 1.15

Ryan’s corner to Tallman’s corner_ 2.15

Tallman’s corner to Norton Hill_ .36

Norton Hill to cemetery corner_ .79

Cemetery corner to Bishop’s corner_ 2.07

Bishop’s corner to Lockwood’s corner_ .90

Lockwood’s corner to Myer’s residence and return_ .79

Lockwood’s corner to West Greenville_ 2.20

West Greenville to Greenville xsost office-.94

Total distance-22.10

VII. In one case the department was reimbursed by a carrier for overpayment of salary, the facts in said case being as follows: The records of the department, which purport to show the length and description of routes, correctly stated the length and description of the route of said carrier at all times. The route of said carrier was changed several times in length, description, and number, and the records were changed each and every time in accordance therewith. During a portion of said time said carrier was paid a salary in excess of what he was entitled to receive “ according to the length of the route he served as shown by the records of the department,” and it was this excess of compensation for which said carrier reimbursed the department.

The overpayment of said carrier was due to an error in the salary roster or pay roll, and not on account of any error in the records of said department which purported to show the length and description of said route. The postmaster to whom said carrier reported and the carrier were both guilty of wrongdoing and fraud against the .department in this matter, the former for knowingly certifying to vouchers for the payment of sums in excess of those to which the carrier was entitled, and the latter for accepting such excess payments knowing he was not entitled to the same under the rules and regulations of the department.

In one case whére a claim was made for greater distance than that for which compensation was received, the carrier’s salary was increased, antedating the same to become effective July 1, the beginning of the fiscal year. In this case the records showing the length of the route of said carrier in *481detail were correct, but there was an error in the footings. In the addition of a column of figures, including fractions, an error was made in the addition of fractions, which was corrected when discovered, and the increase of salary was made as above stated.

On February 1, 1906, the Postmaster General approved an order allowing an adjustment of salary to carriers from the time the length of their routes, as shown by the records of the department, was questioned. The department being in doubt as to the correctness of said order referred the question involved to the Comptroller of the Treasury. The opinion of the Comptroller of the Treasury was obtained on April 11 of the same year, which resulted in the rescinding of said order and the restoration of the practice theretofore existing by an order dated May 11, 1906, mailing the increase effective on the first of the month following the measurement and definite ascertainment of the length of the route. During the interim between February 1 and May 11, 1906, while the question involved Avas being considered by the proper officials, two or three cases >vere adjusted under, said order of February 1 above stated.

VIII. That no part of claimant’s salary was Avithheld from him during the period stated in his petition.

IN. In adjusting the salaries of rural carriers the lengths of the routes as shoAvn by the records of the department, and not the actual length, was the basis for the adjustment of such salaries. Upon a *prima facie*showing by any carrier , of a discrepancy in such estimates, the matter is looked into and such action taken as may be necessary to secure a reliable estimate of the length of the route. To this end, when it is difficult to secure a satisfactory estimate without the use of measuring devices, such devices are used; but the department does not attempt in any case to fix absolutely the length of any route. This has always been the practice of the department.

X. No question Avas raised by Carrier Hallenbeck as to any discrepancy in the length of his route until September, 1909. On the 14th day of said month said carrier submitted to the department, through the postmaster at Green-*482ville, .the affidavit of a civil engineer, setting forth the information that he had measured the actual distance necessary to be traveled in delivering the mail on said route, in accordance with the map thereof, and found the same to- be 22.10 miles in length. In accordance with the practice of the department, the matter, together with the papers, was referred to a post-office inspector for the purpose of ascertaining the truth or falsity of said statements and determining the length of the route. Under date of November 11, 1909, said inspector reported that he found the route to be 22.10 miles in length, and the records of the department were accordingly changed to conform to said report.

XI. In accordance with the finding of the inspector under the regulations of the department, the salary of claimant was increased, effective December 1, 1909, from $810 to $864 per annum, it being the practice and policy of the department in all such cases to make the change effective at the beginning of the month following the ascertainment of the fact and the change of the records in accordance therewith.

*Mr. Charles F. Jones*(with whom was *Mr. Assistant Attorney General Huston Thompson)*for defendant’s motion for a new trial.

*Messrs. Charles C.*Miller, *Louis L.*Hamby, and *W. H. Robeson*opposed.

Atkinson, J.,

delivered the opinion of the court.

This case was formerly, heard and disposed of January 13, 1913, a majority of the court deciding that the plaintiff was entitled to recover a judgment against the United States for the sum of $130.50, that being the amount claimed in his petition. Upon motion of defendants for a new trial and for amendment of findings of fact, said motion was allowed, and the court ordered amendments to the findings and directed the dismissal of plaintiff’s petition.

The amended findings show that plaintiff was a rural delivery mail carrier in the State of New York; that he, from July 1, 1907, to December 1, 1909, was paid $810 per year for his services as such carrier, based upon a regulation of the.Post Office Department on the estimated length of the *483route necessary to be traveled daily (except Sundays) in the performance of his duties; that said distance was estimated to be 21§ miles; that plaintiff', of his own motion, in September, 1909, had the route measured, which proved to be 22^ miles in length; that the matter was referred to an inspector of the department, who, on November 11, 1909, reported that said measurement was correct, and from December 1, following, plaintiff was paid on the basis of the increased distance, viz, at the rate of $864 per year. He brings this suit to recover the difference in salary between $810 and $864 per annum from July 1, 1901, to December 1, 1909, which amounts to $130.50.

The only question to be determined is whether, under the laws and regulations governing the rural mail delivery service, the Government is liable for the alleged “ back pay ” for which plaintiff sues.

The act of April 21, 1902 (32 Stats., 107), authorized the Postmaster General to classify the Rural Free Delivery Mail Service and to fix the salaries of carriers not to exceed $600 per annum.

The appropriation act of April 28, 1904 (33 Stats., 429), provided that the salaries of rural mail carriers should not exceed $120 per year on and after July 1, 1904, and the act of March 2, 1901 (34 Stats., 1205), fixed the maximum salaries on and after July 1,1907, at not exceeding $900.

The Postmaster General, acting under the discretion authorized by the act of April 21,1902, sufra, adopted a schedule of the length of the routes as a basis of fixing the compensation of the carriers. For example, on routes not less than 20 miles in length, $600'; on routes not less than 16 and under 20, $500, and so on; but in no event should the compensation exceed the limits fixed by the statutes.

The schedule now in force, as shown by the records of the department, follows:

24 miles and over-$900

22 to 24 miles_ 804

20 to 22 miles_ 810

38 to 20 miles!- 720

16 to 18 miles- 630

14 to 16 miles- 540

*48412 to 14 miles_ 504

10 to 12 miles_1_ 46S

8 to 10 miles_ 432

6 to 8 miles___ 396

It appears that in laying out free-delivery mail routes fixed lines of travel are followed. The lengths of the routes are arrived at by careful estimates made by agents of the department, and it has never been the custom of the department to fix absolutely the length of the routes; but as in the case at bar, when an exact measurement has been made and verified, it has invariably been adopted. Hence it can not justly be contended that the Government presumes to guarantee the precise length of any delivery route. Distances are fixed upon the best information obtainable, and carriers are paid accordingly. This course was adhered to in the case now in hearing.

Subsequent to April, 1906, the practice of the Post Office Department in adjusting the salaries of rural delivery carriers upon more careful measurements of the lengths of routes was to make increases in salaries effective the first day of the succeeding month, and in one or more instances, where a route had been found greater than the estimated distance fixed by the department, increased pay was allowed for past service. Inasmuch as the department had not undertaken to determine the exact lengths of rural routes, it is contended that, in cases where distances have been found by actual measurement to be increased, the department would not be justified in allowing increased compensation from a prior date, and this rule is adhered to.

We find nothing in any of the acts of Congress to which we have already referred relating to the salaries of rural delivery mail carriers which prescribes in what manner the same shall be classified or what salaries shall be paid, except that they shall not exceed certain fixed amounts. The matter of fixing and adjusting the same, therefore, is left exclusively to the Postmaster General, who is restricted, as we have shown, only to the *maximum*salaries fixed by the several statutes.

A careful examination of the departmental regulations fixing the basis of salaries for rural route mail carriers does *485not impress our minds as being inequitable or unreasonable. Had plaintiff’s route been a small fraction below 22 miles in length, his salary would, under the departmental regulations, have been the same as the amount he was paid, because the rate of compensation was the same on routes from 20 to 22 miles in length; and it is likewise the same when the distance is above 22 and under 24 miles. It was shown by actual measurement that the length of plaintiff’s route is one-tenth of a mile greater than 22 miles, and he was paid, since the actual length of the route was ascertained, the same compensation as could be allowed if he were required to travel daily the full 24 miles.

It is contended by plaintiff that there exists an implied contract between the Government and himself guaranteeing, or impliedly guaranteeing, the exact length of the route over which he was required to travel. We can not agree with this contention.

When the plaintiff entered upon his duties as delivery carrier on this particular route in April, 1903, its length was estimated to be 20J miles. In October, 1905, the distance, by scaling from the postal map, was increased to 21f miles, and in September, 1909, by actual measurement, it ivas found to be 22TV miles. During this long period of time plaintiff discharged the duties as such carrier without complaint or protest, and since the true distance was ascertained, as above stated, he has been paid accordingly. It is therefore apparent that he has no legal claim for a higher rate of pay than he has already received under the established regulations of the Post Office Department.

As we have above stated, the route which claimant served was from 20 to 22 miles, “ as shown by the records of the department.” The distance between intervening points along the route of travel is there expressed in miles, half-miles, quarter or eighth of a mile and not in the more accurate measurements of an engineer, which the findings also show are expressed in some instances in so many hundredths of a mile.

In adopting its method of expressing distances it is evident that the department was using the phraseology in *486which people generally speak of and express distances along a road, and this fact is itself significant in that it indicates that the routes “ as shown by the records of the department ” were established from data procured from available sources, such as county maps, section or quarter-section lines, estimates of persons acquainted with the route of travel, etc., and were not established from the more accurate data which actual surveys would have developed; and the use of such phraseology was not only not misleading to the rural carriers, but was, we think, a fair notice to them that in accepting or serving a particular route the distances were to be known from the records made as above stated. There would therefore be no reason for making a variation of 2 miles in the length of the route if its distance was accurately known, and certainly there would be no field of operation for the expression, “ as shown by the records of the department,” if this expression were subject to the change in each case which an engineer’s measurement would fix for the distances involved.

But the claimant insists that, notwithstanding what we have said, when the classification of his route, according to the records of the department, was from 20 to 22 miles, yet if its actual measurement exceeded 22 miles (as in his case by one-tenth of a mile) he is entitled to be paid upon the next succeeding classification, or upon the basis of 22 to 24 miles. The inconveniences which would result from yielding to this contention, not to speak of the invasion of the discretion vested in the department as to classifying routes, are obvious. To illustrate: The effect of claimant’s contention is that a rural carrier, having a route from 20 to 22 miles, must travel 20 miles before he is entitled to the classification 20 to 22 miles; or, in other words, he would exclude 20 and include 22 in his computation. He must then travel 21 and all of 22 miles before he enters the next class. This next classification is 22 to 24 miles, and therefore the carrier traveling it travels all of 22 miles, and passing the end of 22 miles, actually enters upon and travels part of the twenty-third mile or perhaps to the end of the twenty-fourth mile. But when he has traveled 22 miles and before actually en*487tering upon the twenty-third mile he comes to the end of the 22 miles, and this end is also the beginning of the twenty-third mile; that is to say, the end of the twenty-second mile is a point which marks at one and the same time the end of one mile and the beginning of another, and (being a point) it is without length, breadth, or thickness. When this point is reached 22 miles have been traveled and when passed 22 miles have been exceeded. Now, let us suppose that the actual distance exceeds 22 miles by an inch, or by a foot, or by a yard, or by a rod; would this small departure from the department figures be determinative? Such a difference could readily occur by the use of accurate instruments measuring different sides of a given route of travel; it could readily occur in long distances between the measurements of good engineers. And if such variations occur, as they may in hundreds of routes throughout the country, are the courts or the department to be the -final arbiter of what is to be done in such cases ? If it be said that in small differences like that illustrated the maxim *de minimis lex non curat*could be applied, we inquire in whose interest should the maxim apply — that of the carrier or of the Government? And the fact remains that if the actual and accurately measured distances are to be accepted and be controlling, notwithstanding the department estimates or approximations, then it would seem that any distance, however small, by which the route of travel exceeds (as in this case) 22 miles, would place the carrier in another class. Such a view, it seems to us, is altogether unreasonable, would deprive the department of a discretion which is essential in the proper conduct of a great system, such as the rural mail carrier system is, and would lead to complaints and differences which would injuriously affect the system itself. We think it very probable that the department had these considerations in view when it established the routes and fixed the distances, with the wise restrictions, that they were “as shown by the records of the department.”

There is still another fact which we think is of weighty consideration in this case, and that is that the classification of salaries as to the distance traveled was not an inflexible *488one. On the contrary, the Postmaster General, in his report to the Assistant Attorney General for this court, says:

> “ The schedules stated above have, for the most part, been followed, but in a few instances the department has, in the exercise of its discretion, fixed salaries at rates at variance with those set forth in the schedule when the conditions seemed to warrant such course. It has been and is the view of the department that the discretion authorized by virtue of the several acts quoted give the Postmaster General a wide latitude in adjusting the salaries of rural carriers, so that, irrespective of the schedules adopted for general use, a carrier’s salary might be increased or decreased if conditions found to exist justified such course, or decreased as a disciplinary measure, the only limitation being that the salary should not in any case exceed the maximum fixed by the several acts.”

Hence, while it may be and doubtless is true that there were no conditions in this case which would have justified or moved the Postmaster General to have decreased the salary of the plaintiff, notwithstanding the length of his route, yet as he might have done so, the plaintiff is prevented from relying .upon the distance classification, as governed by actual measurement, as a rule of law to determine the amount of his compensation.

In view of the facts in this case as disclosed by the findings, the several statutes hereinbefore quoted, and the regulations and practice of the Post Office Department relating to the Rural Free Delivery Mail Service, we think there is nothing due the plaintiff, and his petition should be accordingly dismissed, and it is so ordered.

Booth and Barney, J. J., dissent.