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Opinion of the Court
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 imposes the liability on the carrier and that, unless work is performed under a special license granted by the collector, no extra compensation accrues and nothing can be paid.
Section 451 of the Tariff Act of 1930, 46 Stat. 715, requires that before a special license to unlade can be granted to the master, owner, or agent, a bond in the penal sum to be fixed by the collector be given "conditioned to indemnify the United States for any loss or liability” which might occur. Section 452 of the same act requires a special license to lade at night or on Sundays or holidays.
The bond required is to "indemnify” the United States for the extra compensation which has to be paid the customs officers and employees who perform duties for which the license is given and which required the services to be rendered at night or on Sundays or holidays.
These customs officers and employees were employed by and received their compensation from the collector acting for the United States. Under the act of March 3, 1917, c. 163 § 1, 39 Stat. 1106, they could not receive their pay for services from any private source. Customs officials especially are forbidden to receive such payment. Revised Statutes, $ 1790. Payment had to be made by the Government through the collector and the extra compensation to the inspectors had to come out of the funds of the Government and the Government was liable for the extra compensation. The failure by the Government to collect from the carrier would not relieve it of liability for the extra pay for services during the periods under the statute.
It is contended by the defendant that the proviso of this section gives the collector full authority to require customs officers and employees to work at night or on Sundays or
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Opinion of the Court
holidays without extra compensation. The proviso reads as follows:
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. It will be seen that the latter part of the proviso prohibits alteration of the length of a working day of customs employees or overtime pay fixed in the statute. The plain intent of the proviso is to permit collectors of customs at ports where longshoremen and others are accustomed to begin work earlier or later than the hour fixed by the section, to adjust the customs employees' working day to correspond with the customary daylight working period at a certain designated port. In other words, the collector could allow the inspectors to work from 7:00 A. M. to 4:00 P. M. instead of from 8:00 A. M. to 5:00 P. M. because at a particular port it was the custom of the longshoremen to work these particular hours. It specifically states that this arrangement to a custom of a port shall not affect or alter the length of a working day for customs employees or the overtime pay fixed therein.
We do not think it necessary to go into an extensive discussion of the contention of the defendant that Congress gave legislative approval to the system of compensation and working hours adopted by the collector of customs at the port of Detroit by the passage of the Appropriation and Tariff Acts of 1922 and 1930 and by the insertion at the end of section 451 of the Act of 1938, 52 Stat. 1082, of the following provision:
Nothing in this section shall be construed to impair the existing authority of the Treasury Department to assign Customs officers or employees to regular tours of duty at night or on Sundays or holidays when such
assignments are in the public interest, There is no denial of the fact that the Treasury Department has the right to assign the customs officers and employees to regular hours of duty during any eight-hour
period of the twenty-four hours of a day. However, there is nothing under this provision which restricts or qualifies the right of the customs officers and employees to extra compensation as provided by law for services rendered at night, or on Sundays or holidays.
It is our conclusion that plaintiffs have the right to extra compensation as fixed by section 5 of the Act of 1911, as amended by the act of 1920, for services performed between the hours of five o'clock postmeridian and eight o'clock antemeridian, or on Sundays or holidays, and the defendant is liable for such extra compensation.
Plaintiffs are entitled to recover in cases Nos. 43671, 43672, 43673, 43674 and 43675. Entry of judgment will be suspended to await the filing of a stipulation by the parties or the taking of proof as to the amount of extra compensation due plaintiffs in accordance with this opinion. It is so ordered.
LITTLETON, Judge; and GREEN, Judge, concur.
WHITAKER, Judge, took no part in the decision of this case.
EVERETT E. WRIGHT v. THE UNITED STATES
[No. 43854. Decided December 2, 1940. Plaintiff's motion for new
trial overruled March 12, 1941]
On the Proofs
Pay and allowances; retired pay of sergeant in U. S. Marine Corps.
Where plaintiff, an enlisted man in the United States Marine Corps, having completed more than 20 years of active service and having attained the rank of paymaster sergeant, made application on December 21, 1928, to be transferred as of December 31, 1928, to Class II (d) Fleet Marine Corps Reserve with the rank of paymaster sergeant, and where on January 7, 1929, plaintiff, not having been so transferred, was demoted to the grade of staff sergeant, and where on January 22, 1929, plaintiff was transferred with rank of staff sergeant, and on September 30, 1937, was retired with such rank of staff sergeant; it is held that plaintiff is not entitled to recover the difference between the pay authorized for paymaster sergeant and staff sergeant so transferred and retired. Blackett v. United States, 81 O. Cls. 884, and standerson v. United States, 83 C. Cls. 633, distinguished.
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Reporter's Statement of the Case The Reporter's statement of the case:
Mr. M. C. Masterson for the plaintiff. Ansell, Ansell & Marshall were on the briefs.
Miss Stella Akin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
The court made special findings of fact as follows:
1. Plaintiff enlisted in the United States Marine Corps on August 23, 1907, and served continuously in that organization until January 1929, a period of more than 21 years of active service.
2. While serving in the Marine Corps the plaintiff was promoted through successive grades, and on June 1, 1928, he received a probationary appointment of paymaster sergeant to fill a then existing vacancy. This appointment was made on the recommendation of the Paymaster and on direction of the Major General Commandant, and at the expiration of the probationary period the appointment was confirmed by the Major General Commandant on December 7, 1928.
3. On December 21, 1928, after having completed more than 20 years of active service with the United States Marine Corps, and while serving in the grade of paymaster sergeant and receiving the pay and allowances of such grade, plaintiff requested in writing that he be transferred to Class II (d) Fleet Marine Corps Reserve, on December 31, 1928, with the rank of paymaster sergeant. This request on the same day was forwarded, approved by the Paymaster to the Commanding Officer, and on the next day the Commanding Officer forwarded this request, recommending approval, to the Major General Commandant. On December 29, 1928, the Major General Commandant referred the request to the Paymaster for comment and return. On December 31, 1928, the Paymaster made a return to the Major General Commandant with this comment, among others: "Under the law, the transfer of Paymaster Sergeant Everett E. Wright, U. S. Marine Corps, to the Fleet Marine Corps Reserve in his present grade seems mandatory upon his instant application."
4. On or prior to the time of his promotion from staff sergeant to paymaster sergeant on June 1, 1928, the plaintiff was called into a Colonel's office for an interview. The Colo
Reporter's Statement of the Case
nel asked plaintiff what his attitude was toward the Fleet Marine Corps Reserve. The plaintiff informed the Colonel that he at the time had over 20 years' service, was fit, that he intended to remain in the service, that he had then no intention, as far as he knew, of making application for transfer to the Fleet Marine Corps Reserve, and that ever since he had been in the service, and at that time, he held himself for any detail that might be given him.
5. The plaintiff was not transferred to the Fleet Marine Corps Reserve as paymaster sergeant. On January 5, 1929, plaintiff was advised by the Major General Commandant that he was reduced from the grade of paymaster sergeant to the grade of staff sergeant, effective January 7, 1929.
6. Plaintiff was not consulted with reference to his reduction to the grade of staff sergeant, and he was so reduced without his knowledge or consent. No charges had ever been preferred against the plaintiff. The only application made by the plaintiff for transfer to the Fleet Marine Corps Reserve was the one he made on December 21, 1928, in which he requested transfer to the Reserve with the rank of paymaster sergeant. This application was never withdrawn by plaintiff.
7. After the plaintiff was refused transfer as paymaster sergeant to the Fleet Marine Corps Reserve, and after he had been reduced from the grade of paymaster sergeant to the grade of staff sergeant, he was asked whether he still desired transfer to the Fleet Marine Corps Reserve. The plaintiff replied that he was desirous of such transfer at the earliest practicable date.
8. On January 22, 1929, the plaintiff was transferred with the rank of staff sergeant to Class II (d) Fleet Marine Corps Reserve in which status he continued until September 30, 1937, when he was placed on the retired list of the Fleet Marine Corps Reserve with the rank of staff sergeant.
9. There is nothing in the record to show that when the plaintiff was promoted to the grade of paymaster sergeant on June 1, 1928, that he would not continue in the service or that he had any intention at the time to request a transfer to the Fleet Marine Corps Reserve. However, in October or November of that year his wife became seriously ill with a malady for which she had to undergo an operation some