Article 420 of the Treasury Regulations, providing that night
watchmen shall be divided into two watches as nearly as possible,
both watches to perform duty every night, and empowering the
surveyor of the port to make such changes in the division of the
watches as he may deem expedient, and to appoint the hours of duty
for different watches, and that, when it is necessary to assign a
night watchman to a vessel, or to any other all-night charge, the
night watchman so assigned must remain on the vessel or on his
charge until relieved, and will be excused from performing duty the
following night, does not authorize the payment of an extra day's
work to a night watchman so employed during the whole night, and
again put upon duty in the following night.
It is not possible for the Secretary of the Treasury, by passing
regulations, to divide a day's service into parts and to attach to
each part the pay for a full day's work.
Where payments for work done in government employ are made
frequently and through a considerable period of time, and are
received without objection or protest, and where there is no
pretence of fraud or of circumstances constituting duress, it is
legitimate to infer that such payments
Page 169 U. S. 317
were made and received on the understanding of both parties that
they were made in full, and such a presumption is much strengthened
if the employee waits two years after the expiration of his service
before making any demand for further compensation.
This was an action brought by Dixon N. Garlinger in the Court of
Claims against the United States wherein he sought to recover for
alleged extra service rendered by him while in the employ of the
United States. The trial court found the facts to be as
follows:
I. The claimant, a citizen of the United States, was appointed
by the collector of the port of Baltimore a night inspector in the
customs service at Baltimore in 1882. He took the oath of office
and entered upon the discharge of the duties of night inspector of
customs on April 1, 1882, and continued in office until August 25,
1886, a period of 1,608 days.
II. During the above-named period, the claimant was paid for
1,608 days, of which 1,353 payments were for night service when he
was present, rendering actual service, and 255 were for night
service when he was absent and off duty.
III. During the 1,353 days of night service, the claimant was
required to perform duty as night inspector from sunset to sunrise,
and until relieved by the day inspector, the length of the night
service consequently varying, and sometimes extending from 5 p.m.
of one day until 10 a.m. of the succeeding day. During this time,
the claimant was not allowed to be off duty on the succeeding
night, after having been on duty two watches, except in the 255
instances set forth in finding 2, when he was off duty and received
pay -- that is to say, he performed the duties of both the first
and second watch on 1,098 nights without additional compensation,
and without being allowed to be off duty on any alternate
night.
IV. The petition not having been filed until August 24, 1888,
144 days of the number last above stated are barred by the statute
of limitations, leaving 954 days as the subject of the present
suit.
V. The claimant objected to his superior officer, the surveyor
of the port, against his being required to perform the duties of
both watches in one night without being excused
Page 169 U. S. 318
from the performance of duty on the following night, and he
subsequently remonstrated at various times.
VI. At the time of his entering the service as night inspector,
he was furnished by his superior officers with a copy of the
regulations promulgated by the Secretary of the Treasury for his
governance and defining his duties. It was customary for the
surveyor of the port to furnish such regulations to inspectors and
others at the time of their entering the customs service. The
regulations hereinafter quoted were among those so given to the
claimant.
VII. The laws and regulations for the government of officers of
customs under the superintendence and direction of surveyor of
ports, 1877, were issued by the Secretary of the Treasury to the
custom-house authorities of all ports, including the port of
Baltimore, and were in operation in all of the principal ports
except Baltimore, in which the practice of the port at the time of
the claimant's appointment was not, and had not been, in accordance
with the requirement of the regulations making two night watches
and relieving the first watch at midnight. There, the surveyor of
the port had always required the night inspectors to serve from
sunset to sunrise.
VIII. The following are among the regulations given to the
claimant when he entered the service, above referred to:
"Art. 420. The night watchmen shall be divided into two watches,
as nearly equal as possible, both watches to perform duty every
night. The surveyor of the port will, however, make such changes in
the division of the watches as he may deem expedient, and will
appoint the hours of duty for the different watches."
"Whenever it is necessary to assign a night watchman to a vessel
or to any other 'all-night' charge, the night watchman so assigned
must remain on the vessel or on his charge until relieved, and he
will be excused from performing any duty the following night."
"Night watchmen must not quit their charge on being relieved
without first making their presence personally known to
Page 169 U. S. 319
the officer relieving them. Night watchmen, when on duty, must
wear their official badge."
Upon the foregoing findings of fact, the court decided as a
conclusion of law that the claimant was entitled to recover
$2,862.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Dixon N. Garlinger, the plaintiff in the court below, was
employed by the collector of the port of Baltimore as a night
inspector in the customs service from April 1, 1882, till August
25, 1886. For his services, he was entitled to be paid three
dollars per day for each day's work actually performed, and it is a
conceded fact that he was so paid for each and every day he was in
the service.
Two years after he ceased to be so employed, he brought this
action, claiming to recover additional compensation, and recovered
a judgment for the sum of $2,862.
The plaintiff based his claim for additional pay upon two
grounds,
viz., that by the laws and regulations for the
government of officers of customs under the superintendence and
direction of surveyors of ports, issued in 1877 by the Secretary of
the Treasury, it was, among other things, provided as follows:
"The night watchmen shall be divided into two watches, as nearly
equal as possible, both watches to perform duty every night. The
surveyor of the port will, however, make such changes in the
division of the watches as he may deem expedient, and will appoint
the hours of duty for the different watches. Whenever it is
necessary to assign a night watchman to a vessel, or to any other
'all-night' charge, the night watchman so assigned must remain on
the vessel or
Page 169 U. S. 320
on his charge until relieved, and he will be excused from
performing any duty the following night,"
and that, in disregard of this regulation, and of his objections
and remonstrances, he was required to perform the duties of both
watches in some nights without being excused from the performance
of duty on the following nights.
It is contended that from these facts the law will imply a
contract between the claimant and the United States whereby the
former will be entitled to be paid for both watches, as if they
constituted two days' service.
On the part of the United States, it is claimed that the
regulation quoted did not constitute an express contract of
employment between the parties; that the facts negative any notion
of an implied promise to pay any additional sum beyond the
statutory rate of three dollars per day; that, even if a breach of
contract were shown, no recovery could be had beyond the sum
already paid; that there is no obligation on the United States
because such a regulation, if it is to receive the construction
placed upon it by the court below, is in conflict with the law, and
therefore null and void; that the construction placed upon the
regulation by the court is erroneous; that the regulations of 1877
were repealed, and ceased to be in force at any time after March
24, 1883, by reason of subsequent regulations, which should have
been applied by the court below.
Section 2733 of the Revised Statutes, under the authority of
which the claimant was employed, was as follows:
"Each inspector shall receive, for every day he shall be
actually employed in aid of the customs, three dollars, and for
every other person that the collector may find it necessary or
expedient to employ, as occasional inspector, or in any other way
in aid of the revenue, a like sum, when actually so employed, not
exceeding three dollars for every day so employed."
Section 1764 of the Revised Statutes provides that
"no allowance or compensation shall be made for any extra
service whatever which any officer or clerk may be required to
perform, unless expressly authorized by law, "
Page 169 U. S. 321
and section 1765 that
"No officer in any branch of the public service or any other
person whose salary, pay, or emoluments are fixed by law or
regulations, shall receive any additional pay, extra allowance, or
compensation in any form whatever from the disbursement of public
money, or for any other service or duty whatever unless the same is
authorized by law and the appropriation therefor explicitly states
it is for such additional pay, extra allowance, or
compensation."
Of these provisions, while they were part of the Act of August
23, 1842, 5 Stat. 508, c. 183, and before they were carried into
the Revised Statutes, it was said by this Court, in
Hoyt v. United
States, 10 How. 141:
"It [this statute] cuts up by the roots those claims by public
officers for extra compensation on the ground of extra services.
There is no discretion left in any officer or tribunal to make the
allowance unless it is authorized by some law of Congress. The
prohibition is general, and applies to all public officers or
quasi-public officers who have a fixed compensation."
Many cases to the same effect, construing these provisions, are
collected in
United States v. King, 147 U.
S. 676, and in
Mullett's Administratrix v. United
States, 150 U. S. 566,
150 U. S. 570,
where it was said that
"obviously the purpose of Congress, as disclosed by these
sections, was that every officer or regular employ e of the
government should be limited in his compensation to such salary or
fees as were by law specifically attached to his office or
employment. 'Extras,' which are such a fruitful subject of disputes
in private contracts, were to be eliminated from the public
service."
We are unable to accept the contention that it was competent for
the Secretary of the Treasury, by passing regulations, to divide a
day's service into parts, to attach to each part the pay for a full
day's work. By the word "day," in section 2733, Congress evidently
meant the calendar day, and the purpose of Congress in prescribing
the pay of three dollars for every day, and in forbidding any
allowance or compensation for extra services, would be defeated if
the regulation in question were to be construed as providing that a
period of twenty-four hours might be so divided as to justify two
or more payments
Page 169 U. S. 322
to the same person of the amount fixed for the daily
compensation.
Nor do we think that such a construction can be properly given
to the regulation in question. Nothing is said therein of double
pay in case the officer serves both watches. In such a case, the
provision is that he will be excused from performing any duty the
following night. This express provision negatives the inference
that if he serves an all-night watch, he will be entitled to double
pay, and it certainly does not afford a ground on which to base an
implied contract for full pay for both watches.
United States v. Martin, 94 U. S.
400, does not help this claimant's case, for there the
court was construing a statute of Congress declaring that eight
hours should constitute a day's work for all laborers, workmen, and
mechanics. Rev.Stat. section 3738. It is not pretended that the
present claimant falls within the provision of that statute. He
stands only on the regulation already quoted, and which must be
interpreted in such a way as to consist with the statutes
mentioned.
It is not found that the claimant himself ever demanded, during
the period of his service, the compensation he now seeks. What he
complained of was that, after he had performed an all-night
service, he was not excused from duty the following night. He was
not employed for any specific period, and was at liberty to quit
the service if he thought the duties too onerous. He however
elected to remain during the period above mentioned, and to receive
the compensation awarded him by the collector without any protest
as to its insufficiency. It may be fairly presumed that the
collector, in paying, and the claimant, in accepting, the money
paid supposed that the payments were in full. Such a course of
conduct, we think, brings this claimant within the principle of
well settled cases that the receipt of payment, purporting to be in
full, where there is no fraud or coercion, cannot afterwards be
repudiated as insufficient.
Baker v.
Nachtrieb, 19 How. 126;
United
States v. Childs, 12 Wall. 232;
De Arnaud v.
United States, 151 U. S. 483.
Such a principle is especially applicable to the transactions of
the government, whose expenditures are met by legislative
Page 169 U. S. 323
appropriations. We do not want to be understood as saying that
the mere fact of receiving money in payment will estop a creditor.
But where, as in this case, the payments were made frequently,
through a considerable period of time, and were received without
objection or protest, and where there is no pretense of fraud or of
circumstances constituting duress, it is legitimate to infer that
such payments were made and received on the understanding of both
parties that they were in full. Such a presumption is very much
strengthened by the lapse of two years before the appellee thought
fit to make any demand.
These views sufficiently dispose of the case, and render it
unnecessary to consider the other contentions urged on behalf of
the government.
The decree of the Court of Claims is reversed, and the cause
is remanded to that court, with directions to dismiss the
claimant's petition.
