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92 C. Cls. Reporter's Statement of the Case holidays. In a schedule attached to the respective petitions of each plaintiff showing the amount claimed for overtime services, the computation of Sunday or holiday services includes only the time between 8 a. m. and 5 p. m.; service during other hours on a Sunday or a holiday is charged as nighttime service. The services for which plaintiffs claim overtime pay were performed in line of duty as directed by their superiors.

Howard C. Nyers v. The United States. No. 43671 8. Plaintiff received appointment into the customs service May 28, 1930 and during the period from September 1, 1931 to August 31, 1937 performed services at nighttime—that is, between the hours of 5 p. m. and 8 a. m.-on Sundays and on holidays in accordance with a schedule attached to the petition and made a part hereof by reference, at all stations enumerated in Finding 3 except the Grand Trunk Railway Slip Dock and the Miller Ferry Line.

John H. Arble v. The United States. No. 43672

9. Plaintiff received appointment into the customs service July 1, 1930 and during the period from September 1931 to August 31, 1937 performed services at nighttime, on Sundays and on holidays in accordance with a schedule attached to the petition and made a part hereof by reference, at all stations enumerated in Finding 3.

Charles C. Martin v. The United States. No. 43673 10. Plaintiff received appointment into the customs service November 4, 1929 and during the period from September 1, 1931 to August 31, 1937 performed services at nighttime, on Sundays and on holidays in accordance with a schedule attached to the petition and made a part hereof by reference, at all stations enumerated in Finding 3 except the Miller Ferry Line.

Walter 0. Plitz v. The United States. No. 43674 11. Plaintiff received appointment into the customs service October 20, 1930 and during the period from September 1, 1931 to August 31, 1937 performed services at nighttime,

447

Opinion of the Court on Sundays and on holidays in accordance with a schedule attached to the petition and made a part hereof by reference, at all stations enumerated in Finding 3 except the Miller Ferry Line.

George H. Spitz v. The United States. No. 43675

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12. Plaintiff received his appointment into the customs service in November, 1929, and during the period from September 1, 1931 to August 31, 1937 performed services at nighttime, on Sundays and on holidays in accordance with a schedule attached to the petition and made a part hereof by reference, at all stations enumerated in Finding 3 except the Miller Ferry Line and the Grand Trunk Railway Slip Dock.

The court decided that the plaintiffs were entitled to

recover.

WHALEY, Chief Justice, delivered the opinion of the court:

The sole question in these cases is the liability of the United States for extra compensation for services rendered at night, on Sundays or holidays by customs inspectors at the port of Detroit, Michigan. No claim is made for extra pay for any work other than the regular tours of service of eight hours during the twenty-four hours of any day. The parties have stipulated that the five cases in suit [Nos. 43671, 43672, 43673, 43674 and 43675] shall serve as test cases for the determination of twenty-two other suits by customs inspectors at the port of Detroit to recover extra compensation. It has been agreed that the amounts payable, should the Court find for the plaintiffs, shall be stipulated or ascertained by proof.

Plaintiffs' claims are based on section 5 of the act of February 13, 1911, 36 Stat. 899, 901, as amended by the act of February 7, 1920, 41 Stat. 402, and sections 450, 451, 452 and 401 of the Tariff Act of 1930, 46 Stat. 590, 715.

The solution of the question involves an interpretation of the section of the Act of 1911, as amended, which reads as follows:

SEC. 5. That the Secretary of the Treasury shall fix a reasonable rate of extra compensation for overtime services of inspectors, storekeepers, weighers, and other cus

92 C. Cls.

Opinion of the Court

toms officers and employees 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, to perform services in connection with the lading or unlading of cargo, or the lading of cargo or merchandise for transportation in bond or for exportation in bond or for exportation with benefit of drawback, or in connection with the receiving or delivery of cargo on or from the wharf, or in connection with the unlading, receiving, or examination of passengers' baggage, such rates to be fixed on the basis of one-half day's additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond five o'clock postmeridian (but not to exceed two and one-half days' pay for the full period from five o'clock postmeridian to eight o'clock antemeridian), and two additional days' pay for Sunday or holiday duty. The said extra compensation shall be paid by the master, owner, agent, or consignee of such vessel or other conveyance whenever such special license or permit for immediate lading or unlading or for lading or unlading at night or on Sundays or holidays shall be granted to the collector of customs, who shall pay the same to the several customs officers and employees entitled thereto according to the rates fixed therefor by the Secretary of the Treasury: Provided, That such extra compensation shall be paid if such officers or employees have been ordered to report for duty and have so reported, whether the actual lading, unlading, receiving. delivery, or examination takes place or not. Customs officers acting as boarding officers 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 vessel: 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 on the overtime pay herein fixed. (U. S. C. A. Title 19; Section 267.)

447

Opinion of the Court

The plaintiffs performed services at night, or on Sundays or holidays, at the port of Detroit where goods, merchandise, passengers and baggage arrived from or entered Canada on, over and under the Detroit River by way of ferries, tunnels and a bridge.

Extra compensation is claimed for night services at all stations and for Sunday or holiday services at the ferries, tunnels and bridge.

At one of the tunnels extra compensation was paid for Sunday or holiday services. Plaintiffs performed at all the stations herein involved services at night, or on Sundays or holidays, in connection with the lading and unlading of cargo, or the lading of cargo or merchandise for transportation in bond or for exportation in bond or for exportation with benefit of drawback, or in connection with the receiving or delivery of cargo on or from the wharf, or in connection with the unlading, receiving, or examination of passengers' baggage. Only eight-hour periods of the twenty-four hours of any day, including Sundays or holidays, were performed. There is no claim made for any excess of time over eight hours.

Before November 15, 1929, when the Ambassador Bridge was opened, customs officers and employees at the port of Detroit were paid at all stations extra compensation for Sunday or holiday services. After the opening of the Bridge the collector of customs stopped payment of extra compensation for Sunday or holiday services at the ferries and tunnels and substituted there for the practice of giving compensatory time off at a later date. No extra compensation for Sunday or holiday duty was made at the Ambassador Bridge or the Detroit and Canada Tunnel but compensatory time off was granted.

Section 5 of the act of 1911, as amended by the act of 1920, is not ambiguous but plain and clear. It not only provides extra compensation for overtime services of customs officers and employees who are required to perform services after five o'clock P. M. and before eight o'clock A. M. (defined in the act as "night" service) or Sundays or holidays but it definitely states the basis of the compensation of those who

Opinion of the Court

work between five o'clock postmeridian and eight o'clock antemeridian not to exceed two and one-half days' full pay and for the services on Sundays or holidays not to exceed two additional days' pay.

92 C. Cls.

Plaintiffs were on a yearly salary of $2,100 and were on duty after five o'clock postmeridian and before eight o'clock antemeridian or on Sundays or holidays.

It is contended that overtime means only "extension of work hours above eight hours in twenty-four" but there is nothing in the act to this effect. On the contrary, the act plainly states that the services rendered after five o'clock in the afternoon and before eight o'clock in the morning or on Sundays or holidays shall be "overtime".

In Ferguson v. Port Huron & Sarnia Ferry Co., 13 Fed. (2d) 489, 492, in considering the provisions of section 5, the court held:

* * The term "overtime" appropriately expresses the
meaning, and in my opinion was intended to express such
meaning: "Beyond the regular, fixed working hours."
The word "remain", in the clause referring to officers re-
quired to "remain on duty between the hours" mentioned,
means, according to its proper interpretation, "remain on
duty after reporting for such duty." The section itself
provides that "such extra compensation shall be paid if
such officers or employees have been ordered to report
for duty and have so reported, whether the actual" work
contemplated "takes place or not". As was pointed out
by the Supreme Court in its opinion in International Rail-
way Co. v. Davidson, 257 U. S. 506, 42 S. Ct. 179, 66 L. Ed.
341: "This
section defines what shall be
deemed overtime." The only definition thus employed
was the reference to the period of time between the par-
ticular hours specified, without regard to the question
whether the services rendered "at night" or "on Sundays
or holidays" immediately and continuously followed
services just completed for regular pay. Clearly, the
object of the statute was to facilitate lading and unlading
"at night" and on Sundays and holidays, irrespective of
whether the officers working in connection therewith had
previously worked during the regular hours of the
immediately preceding regular working "day".

It is contended by the defendant that the portion of the section which reads:

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