As Amended on Petition for Clarification of Opinion Feb. 28, 1944. [320 U.S. 561, 562] Mr. Francis M. Shea, Asst. Atty. Gen., for petitioner.
Mr. Robert M. Drysdale, of Detroit, Mich., for respondents.
Mr. Justice REED delivered the opinion of the Court.
These five suits were filed in the Court of Claims by respondents, who are customs inspectors stationed at the Port of Detroit. 1 They have been selected as test cases from a larger number of similar suits. No significant difference in the claims as to services rendered or otherwise is pointed out to us, and we see none. Even the periods for which recovery is sought, September 1, 1931, through August 31, 1937, are identical. We shall therefore state the issues and explain our conclusion in terms of the Myers case only, and its determination requires a like result in the other cases.
The precise issue is whether or not the provisions of Section 5 of the Act of February 13, 1911, as amended,2 and Sections 401, [320 U.S. 561, 563] 450 and 451 of the Tariff Act of 1930,3 entitle Mr. Myers to extra compensation over and above his regular salary as customs inspector for night, Sunday and holiday serv- [320 U.S. 561, 564] ices performed during the stated period. Its solution depends upon whether or not, when Section 5 speaks of 'overtime services,' it includes, first, any authorized service rendered [320 U.S. 561, 565] between 5 o'clock P.M. and 8'clock A.M., without regard to whether this service is within the regular hours of his assignment to duty, and, second, Sundays and holidays without regard to the tim of day when the authorized services are performed. The Court of Claims entered judgment for claimant for both nighttime and Sunday and holiday services. 99 Ct.Cl. 158.
As the difficulties of applying the statute continually arise at any port where the normal working hours of the customs employees named in the section are not limited to 8 A.M. to 5 P.M. with Sundays and holidays off, we granted certiorari to review the judgment of the Court of Claims. 320 U.S. 722 , 64 S.Ct. 45. We think the judgment should be reversed as to nighttime services and affirmed as to Sunday and holiday services.
The Port of Detroit possesses a wide variety of transportation facilities which connect it with Canada and which require customs inspection of merchandise, baggage and passengers. 4 Evidently a rotation of assignments of posts and hours among inspectors at Detroit was carried out by the collector. Mr. Myers had either night or Sunday and holiday service or both at all the various posts of duty which are listed in the note. He was paid his annual salary throughout the period. This was a base pay of $2,100, subject to additions and subtractions which were generally applicable to government employees. 5 The claim is for service performed at night- [320 U.S. 561, 566] time6 on weekdays, Sundays and holidays, and in daytime on Sundays and holidays.
At the threshold the Government urges that the statutes heretofore quoted do not create an obligation on the part of the United States to pay the extra compensation which is sought. A carrier may procure customs service at night only by special license, and the statutes say the extra compensation shall be paid 'by the licensee' to the collector of customs who shall pay the same 'to the inspectors.' 7 As the extra compensation here sued for was not collected in whole or part from the carriers concerned, it is urged that the United States is not liable to the plaintiff. 8
The legislative history shows that the proponents of extra compensation constantly made the point that the Government would not be out of pocket by the legislation. 9 Where the United States stood as a protector of Indians with statutory authority, carefully marked out by a series of enactments, to collect sums for the benefit of [320 U.S. 561, 567] its dependents, we held that the Government's failure to collect did not give rise to a liability. Creek Nation v. United States, 318 U.S. 629, 637 , 639 S., 63 S.Ct. 784, 788, 789. In that case we said that authorization to collect did not create a mandatory duty, particularly where the Indians also might have sued. Likewise, under similar circumstances, we have determined that over-collection did not create liability for reimbursement. United States v. Algoma Lumber Co., 305 U.S. 415, 418 , 419 S., 423, 59 S.Ct. 267, 269, 271. But here the United States is neither protector nor agent. It is an employer who issues orders to the inspectors directing the performance of services. The work is done under the statutes. No inspector may 'receive any salary in connection with his services as such an official or employee from any source other than the Government of the United States.' Act of March 3, 1917, c. 163, 39 Stat. 1106, 5 U.S.C.A . 66. These payments are made by the licensees to the collector at rates fixed by the Secretary of the Treasury. This is extra compensation over and above the annual salary, not a payment from licensees. Section 451 requires a bond from the licensee to 'pay the compensation and expenses of the customs officers,' but the payment must be made to the collector under Section 5. These facts lead us to the view that the statutes create an obligation on the part of the United States to pay the inspectors such sums as they may earn under their provisions. 10 [320 U.S. 561, 568] We come then to an examination of the extent of the obligation under the several sections heretofore quoted in notes 2 and 3. From the earliest days, customs inspections have normally proceeded in daylight. By special license, the work of the customs might be performed at night. 11 Inspectors were on duty continuously and at first were paid on a per diem basis. 12 By the Act of March 3, 1873, R.S. Section 2871, the practice of licensees of paying extra compensation for nighttime service13 (between sunset and sunrise) was formalized by authorizing the collector to fix reasonable extra compensation and to collect and distribute it among the inspectors. The provisions of that section gradually were extended to additional employees and to different circumstances. 23 Stat. 53, 59; 34 Stat. 633. In 1911 further changes were made by an Act for lading and unlading vessels. 36 Stat. 901. Section 5 under examination here emerges there in nearly its present form. Extra compensation for nighttime services was continued and was authorized for the first time for Sundays and holidays. 14 The latest changes were made in [320 U.S. 561, 569] Section 5 in 1920. 'Night' services became 'overtime' services. Sundays and holidays were placed at the beginning of the section in juxtaposition with 'hours' which were fixed at from 8 A.M. to 5 P.M. The last proviso vesting authority in the Collector of Customs to regulate the hours of employees 'so as to agree with prevailing working hours in said ports' was added. 15 The Tariff Act of 1922, Sections 401, 450 and 451, extended the provisions of Section 5 of the lading and unlading act so as to cover passengers and baggage arriving by vehicle. These sections as they now appear in the Tariff Act of 1930 are in note 3, supra.
The Collector of Customs at Detroit, during the years in question, assigned inspectors to tours of duty of eight hours each day, which tours might be at any time within a twenty-four hour period. 16 The length of the weekly tour varied with the post and with the state of the federal legislation. The findings of the Court of Claims as to the actual results are set out in the note below. 17 In the [320 U.S. 561, 570] administration of customs, regulations based on the sections of the Tariff Act of 1930 and Section 5 of the Act of 1911 were issued by the Treasury Department. Customs Reg- [320 U.S. 561, 571] ulations 1931 and 1937. So far as here pertinent they are substantially alike. 18
The legislative history of the various acts makes clear the intention of Congress to allow extra compensation only when there are overtime services in the sense of work hours in addition to the regular daily tour of duty without regard to the period within the twenty-four hours when the regular daily tour is performed. Congressman Moore [320 U.S. 561, 572] explained the purpose as follows (Hearings on H.R. 9525, 61st Cong., 2d Sess. at p. 470):19
At the hearings, just prior to the 1920 amendment to Section 5, the understanding apparently was that extra compensation would begin only after a day's work of ten or eleven hours. The pay of an inspector was per diem and was paid for each day in the year. The Treasury Department wrote to the Chairman:
There are other references in the hearings to the use of the 'shift' system to secure twenty-four hour service without extra compensation. The legal basis for a collector's authority to assign inspectors in this way is the last proviso of Section 5, note 2, supra. It gives the collector authority in those ports where customary working hours are other than 8 A. M. to 5 P.M. to regulate the hours [320 U.S. 561, 573] of inspectors so as to agree with prevailing working hours in the ports. In speaking of the provision after its adoption, an official of the Customs Inspectors Association said at a hearing on an immigration inspectors bill (Hearings on S.1504, S.1774 and S.2188, 67th Cong., 1st and 2d sess., p. 130): 'To meet the condition at New Orleans, where the hours of labor are from 7 o'clock a.m. to 4 o'clock p.m., this proviso at the end of the bill was put in allowing collectors to adjust the inspectors' hours to the customary working hours at ports where the practices are different. This proviso also applies to the Canadian border at places where traffic is continuous during the 24 hours, such being the 'customary working hours'-and the inspectors work in 8-hour shifts without overtime.' 21
When we examine the language of Section 5, either without extrinsic aid or with the benefit of the historical and legislative background, we find convincing authority to support the Government's view as to the meaning of overtime. 'Overtime' as we pointed out above was substituted by the 1920 amendment of Section 5 for 'nighttime' services. The section requires employees to 'remain' on duty. The usual instance of the payment of extra compensation would be for work after 5 P.M. by an inspector who had previously worked full time. The Government is correct in its interpretation of the last proviso of Section 5 as permitting shifts in an inspector's regular hours of work. Night assignments are an old administrative practice. It is true that the proviso apparently was passed to meet a New Orleans situation but the language is general. It does not restrict the collector to minor variations in hours. We are led to the conclusion that overtime, as applied to week days, refers to hours longer than the daily limit of 8 A.M. to 5 P.M., nine hours with one [320 U.S. 561, 574] hour for food and rest. Furthermore, these tours of duty under the proviso are movable within the twenty-four hour period in accordance with prevailing working hours and the requirements of the service.
We do not see that International Ry. Co. v. Davidson, 257 U.S. 506 , 42 S.Ct. 179, 181, decides otherwise. That was a suit to enjoin the Collector from enforcing the license provisions of Section 5, note 2, supra, as to passengers and baggage, against an international bridge. These were held inapplicable to bridges. In speaking of Section 5, the opinion stated: 'This substituted section defines what shall be deemed overtime, how the rate of extra pay shall be fixed, and what the work is, for which extra compensation shall be paid.' It did not, however, interpret the statute or consider the proviso both of which we are called upon to do here. Contra, see Ferguson v. Port Huron & Sarnia Ferry Co., D. C., 13 F.2d 489, 492.
As to Sundays and holidays, we construe the statute to require extra compensation for inspectors without regard to the hours of the day or whether such services are additional to a regular weekly tour of duty. Before Section 5 there was no authority to pay extra compensation for Sunday and holiday work. Revised Statutes, Section 2871, allowed extra pay for nighttime work only. Somewhat indirectly the Act of February 13, 1911, gave Sunday and holiday pay and the 1920 amendment made the right to that extra compensation clear by saying extra compensation shall be paid inspectors 'who may be required to remain on duty between the hours of five o'clock postmeridian and eight o'clock antemeridian, or on Sundays or holidays.' This language and the Customs Regulations, note 18, supra, give an employee who works regular hours weekdays in daytime extra pay for Sunday and holiday work. The statute covers also those who work outside the statutory normal hours. Logically, if Sundays and holidays were not to receive extra compensation, without regard to whether services on those days were over- [320 U.S. 561, 575] time, there would have been no occasion to add Sundays and holidays to the overtime. Overtime would cover every situation.
The proviso of Section 5 does not give the Collector of Customs authority to make assignments which deprive inspectors of this Sunday and holiday pay. It authorizes adjustments of hours but specifically forbids alteration of overtime pay. It is silent as to Sundays and holidays which leaves the earlier grant of extra compensation for those days in effect. Overtime pay is also applicable to Sundays and holidays when inspectors work longer than nine hours with one hour for food and rest. The rate of overtime extra compensation on Sundays and holidays is the same as the rate for weekdays. The administrative practice is uncertain. It does not support a contrary conclusion. The Government cites excerpts from testimony on amendatory bills, not here directly involved, which indicate the extra compensation is paid for Sundays and holidays. 22 Findings 5 and 6 of the Court of Claims, note 17, supra, show that extra compensation was paid at times for Sunday and holiday services. 23
Two further contentions of the Government require consideration. It is said that Section 5 of the 1911 Act as [320 U.S. 561, 576] amended does not apply to services rendered at a bridge or tunnel. This Court so held in 1922. International Ry. Co. v. Davidson, 257 U.S. 506, 512 , 42 S.Ct. 179, 181. At that time, the section's application was limited to 'vessel or other conveyance.' Since then Sections 401, 450 and 451 of the Tariff Act of 1922, 42 Stat. 858, 948, 954, and of the Tariff Act of 1930, note 3, supra, have expanded the instrumentalities to include every contrivance capable of being use as a means of transportation on land or water. 24 The difference in definition, we think, brings bridges and tunnels under the overtime pay requirements of Section 5.
Finally the Government urges that in awarding compensation for 'overtime' services credit should be allowed to it for that part of the base pay received for such services. We think the Congressional intention to give extra compensation precludes such a claim. The inspectors in addition to their regular salaries for week days are entitled to the statutory additional pay for overtime, sundays and holdays.
The judgment of the Court of Claims is reversed and the proceeding remanded to that Court for determination of the claim of the inspectors in accordance with this opinion.
Reversed in part.
Mr. Chief Justice STONE is of the opinion that the judgment should be reversed in its entirety and the suits dismissed.
[ Footnote 1 ] Federal Register, August 25, 1937; Code of Federal Regulations, Title 19, Customs Duties, Chap. 1, Bureau of Customs.
[ Footnote 2 ] 41 Stat. 402, c. 61, 19 U.S.C. 267, 19 U.S.C.A. 267:
and any customs officer who may be designated for that purpose by the collector of customs are hereby authorized to administer the oath or affirmation herein provided for, and such boarding officers shall be allowed extra compensation for services in boarding vessels at night or on Sundays or holidays-at the rates prescribed by the Secretary of the Treasury as herein provided, the said extra compensation to be paid by the master, owner, agent, or consignee of such vessels: Provided further, That in those ports where customary working hours are other than those hereinabove mentioned, the collector of customs is vested with authority to regulate the hours of customs employees so as to agree with prevailing working hours in said ports, but nothing contained in this proviso shall be construed in any manner to affect or alter the length of a working day for customs employees or the overtime pay herein fixed.'
[ Footnote 3 ] 46 Stat. 708, 715, c. 497, Title IV, 19 U.S.C. 1401, 1450, 1451, 19 U.S.C.A. 1401, 1450, 1451: 'Sec. 401. Miscellaneous. 'When used in this title or in Part I of Title III- '(a) Vessel.-The word 'vessel' includes every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water, but does not include aircraft. '(b) Vehicle.-The word 'vehicle' includes every description of carriage or other contrivance used, or capable of being used, as a means of transportation on land, but does not include aircraft.' '(f) Day.-The word 'day' means the time from eight o'clock antemeridian to five o'clock postmeridian. '(g) Night.-The word 'night' means the time from five o'clock postmeridian to eight o'clock antemeridian.' 'Sec. 450. Unlading on Sundays, Holidays, or at Night. 'No merchandise, baggage, or passengers arriving in the United States from any foreign port or place, and no bonded merchandise or baggage being transported from one port to another, shall be unladen from the carrying vessel or vehicle on Sunday, a holiday, or at night, except under special license granted by the collector under such regulations as the Secretary of the Treasury may prescribe. 'Sec. 451. Same-Extra Compensation.
[ Footnote 4 ] The facilities were listed by the Court of Claims as follows:
Detroit and Windsor Ferry,
Detroit and Canada Tunnel,
Michigan Central Tunnel,
Wabash Railway Ferries,
Pere Marquette Railway Ferries,
Grand Trunk Railway Slip Dock.
[ Footnote 5 ] E.g., Economy Act of 1932, 47 Stat. 382.
[ Footnote 6 ] Nighttime is defined as the hours between 5 P.M. and 8 A.M., Customs Regulations 1937, Art. 1462; 46 Stat. 708, supra, note 3.
[ Footnote 7 ] See note 3, supra. Customs, Regulations 1931, Art. 1232, was as follows:
[ Footnote 8 ] We doubt whether or not the Government presents this question in its petition for certiorari. As it is the basis of the litigation, however, we resolve that doubt in favor of an adjudication of this issue.
[ Footnote 9 ] Hearings on H.R. 9525, 61st Cong., 2d Sess., pp. 461, 463, 464-465; Hearings on H.R. 6577, 66th Cong., 1st Sess., 13. When the 1920 amendment was under consideration, its sponsor, Senator Calder, said: 'the shipowner would pay the collector for it, and then, in turn, the men would be paid by the Government.' 59 Cong. Rec. 640.
[ Footnote 10 ] The First Deficiency Appropriation Act, fiscal year 1936, 49 Stat. 1636, June 22, 1936, and so within the period covered by this suit, made the appropriation for the Bureau of Customs 'available' for payment of these claims. This has been continued, 56 Stat. 150, 155. The Treasury and Post Office Departments Appropriation Act of 1944, Public Law 102, 78th Cong., 1st Sess., C. 179, slip law p. 7, 57 Stat. 250, 256, changed the form of the authorization from making the appropriations available for this payment to a direct appropriation for payment. But see Hearings, Subcommittee of the Committee on Ways and Means (House) on H.R. 6577, 66th Cong., 1st Sess., p. 13.
[ Footnote 11 ] 1 Stat. 665, 50.
[ Footnote 12 ] The Government brief furnishes us a convenient summary of the pay legislation: 'The pay originally fixed at $2 per diem (Act of March 2, 1799, 1 Stat. 704, 706) was gradually increased to a maximum of $6 in 1909 and $7.80 in 1923 (Act of April 26, 1816, 3 Stat. 306; Rev.Stat. 2733; Act of April 29, 1864, 13 Stat. 61; Act of March 4, 1909, 35 Stat. 1065, Sec. 2; Act of March 4, 1923, 42 Stat. 1453). By the Act of May 29, 1928, 45 Stat. 955, 19 U.S.C. 6a, 19 U.S.C.A. 6a, customs inspectors were given fixed salaries and paid on annual basis. Compensation of respondents is $2,100 per annum, which may be increased by promotion to a maximum of $ 3,300. Even prior to 1928, when compensation was changed to an annual basis, customs inspectors, regularly employed and paid on a per diem basis, were paid for 365 days ... thus receiving the equivalent of an annual salary.'
[ Footnote 13 ] S.Rep. No. 380, 41st Cong., 3d Sess., pp. 42, 139.
[ Footnote 14 ] Nighttime was apparently administratively determined to be between 6 P.M. and 7 A.M., 59 Cong.Rec. 2171; Hearings before the Committee on Ways and Means House of Representatives (75th Cong., 1st Sess.), on H.R. 6738 (one of the bills which became the Customs Administrative Act of 1938 ), amending Section 451 of the Tariff Act of 1930 (Act of June 25, 1938, c. 679, 9, 52 Stat. 1082), p. 185.
[ Footnote 15 ] See note 2 and for a graphic explanation of the changes, see International Ry. Co. v. Davidson, 257 U.S. 506, 510 , 42 S.Ct. 179, 181.
[ Footnote 16 ] This was settled practice. International Ry. Co. v. Davidson, 257 U.S. 506, 508 , 42 S.Ct. 179, 180.
[ Footnote 17 ] '4. As used in these findings the word 'nighttime' refers to the period 5 o'clock p.m. of any day to 8 o'clock a.m. of the next day, and the word 'daytime' to the period 8 o'clock a.m. of any day to 5 o'clock p. m. of the same day. 'Excess pay' refers to pay in excess of the inspector's annual salary. The word 'week-day' refers to any day of the week other than Sundays or whole holidays, and the word 'holiday' refers to a holiday of not less than 24 hours.
[ Footnote 18 ] The references are to the 1937 editions:
[ Footnote 19 ] This quotation is from hearings May 5, 1910, on a bill similar to the one which became the Act of February 13, 1911. Hearings before House Com. on Ways and Means, on H.R. 9525, 61st Cong., 2d Sess.
[ Footnote 20 ] Hearings before a subcommittee of the Committee on Ways and Means ( House) on H.R. 6577, 66th Cong., 1st Sess., October 11, 1919, pp. 1-19, particularly p. 11.
[ Footnote 21 ] See, also, Hearings, Senate Committee on Finance, 71st Cong., 1st Sess., on H.R. 2667, p. 494.
[ Footnote 22 ] Hearings on S. 1504, S. 1774 and S. 2188, Committee on Commerce ( Senate), 67th Cong., 1st and 2d Sess., pp. 30, 31 and 130.
[ Footnote 23 ] See T.D. 49658, approved July 18, 1938, after the period here in question, where Art. 1242(g) is amended to read as follows:
There are similar overtime acts in other services. They allow Sundays and holidays extra. Cf. 46 Stat. 1467, 8 U.S.C.A. 109a, 109b, and U.S. Dept. of Labor, Bureau of Immigation General Order No. 175, April 27, 1931 , (d); 49 Stat. 1380 and Dept. of Commerce Circular No. 307, December 17, 1938, Bureau of Marine Inspection and Navigation, II; 48 Stat. 1064, as amended, and Federal Communications Commission Rules and Regulations, Part 8, 8.301(i).
[ Footnote 24 ] See, also, Section 9 of the Customs Administration Act of 1938.
The change was deemed significant as to railroads. Compare Mellon v. Minneapolis Ry., 52 App.D.C. 246, 285 F. 980, with Mellon v. Minneapolis Ry., 56 App.D.C. 160, 11 F.2d 332, 334.