United States v. Langston

85 F. 613 | 5th Cir. | 1898

SWAYNE, District Judge,

after stating the case as above, delivered the opinion of the court.

In this case the court has great difficulty in finding sufficient in the record to be able to hold the case and pass upon the questions discussed in the briefs. It is evident, by finding No. 4, and also the finding erroneously termed “conclusion of law,” that it was the purpose of the court below to give the defendant in error full compensation for the intervals known as short “swings,” which do not exceed one-half hour in length; but there is nothing in the record to indicate the length of the “swings,” nor the frequency with which they occur, nor the amount of extra time allowed therefor, and nothing by which the court can determine whether the amount of $186.50, awarded to the claimant Charles J. Langston, is correct, or not; and, while we think this sufficient error to reverse and remand, yet, in order to save further delay and expense, we have concluded to pass upon it as discussed in the briefs of the counsel submitted. The determination: of this question rests solely upon the construction of Act Cong. May 24, 3888 (1 Supp. Rev. St. [2d Ed.] 587), which reads:

“Be it enacted,” etc., “that hereafter eight hours shall constitute a day’s work for letter carriers in the cities or postal districts connected therewith, Cor which they shall receive the same pay as is now paid as Cor a day’s work oí a greater number of hours.”

“If any letter carrier is employed a greater number of hours per day than eight, he shall he paid extra for the same in proportion to the salary now fixed by law.”

It will be observed that the contention of the defendant in error rests solely upon the latter part of this act; that is, he must show to the court that he was employed a greater number of hours per day than eight before he shall be paid extra for service. The first part of the act merely prescribes that eight hours shall constitute a day’s work for letter carriers, and its construction, so far as the intent of the legislators is concerned, gathered from the history of the act, dearly shows that it was not their purpose to make this eight consecutive hours of employment; and if it had stopped here, under previous decisions of the courts of the United States, it would be impossible for the claimant to recover anything extra for the additional hours of service. But the latter part of the act declares 1liat, “if a letter carrier is employed a greater number of hours per day than eight, he shall be paid exlra.” This necessarily implies, not only that he must establish the fact that he performed service during the extra time over eight hours, but as a basis for this claim of extra time he must establish the fact that he was actually employed eight hours in the performance of letter carrier’s duty before the time for which extra pay is demanded can be said to be extra time.

It is admitted by both counsel for plaintiff and defendant that the proper determination of the issue's in the case depends upon the interpretation of the word “employed” as used in the act. On behalf of the defendant in error, it is contended that he is employed when he is in uniform and voluntarily remains in or about (lie post office, though not actively employed, or required by any express order of the postmaster to do so; and on the part of the plaintiff in error it is insisted that he is not so employed during such intervals, uidess he is actively engaged at work as a letter carrier. This does not appear to he a new question, hut has been settled by the supreme court of the United States in U. S. v. Post, 148 U. S. 124, 13 Sup. Ct. 567. In that case the right of a letter carrier to recover, under Act May 2-1,1888, for extra service, was considered, and the term “employed” defined by Justice Blatchford, speaking for the court, as follows:

“This extra pay is given to him by the statute distinctly for his being employed a greater number of hours per day than eight. The statute does not say how he must be employed, or of what such employment is to consist. It is necessary only that he should be a letter carrier, and be employed in work that is not inconsistent with his general business under his employment as a letter carrier.”

This would seem to dispose of the contention of the defendant in .error by holding that he was only employed, according to the language of the act, when he was lawfully employed “in work” not inconsistent with his general business as- a letter carrier.

We are of opinion that the number of such claims, or the amount that may be involved in them, is of no assistance to the court in arriving at the proper interpretation of the language of the statute, any more than an extended discussion of the history of the eight-hour law, or the inscription on the tombstone of the man who first agitated the question; and we believe these matters might properly have been omitted from briefs.

It is undoubtedly the purpose of that act to provide that a letter carrier shall not actually be employed in his duties more than eight hours per day without receiving extra compensation for the same. We are therefore clearly of the opinion that the defendant in error, during and for the short intervals, or “swings,” between his trips, in which he was not actually employed, or required by any express order of the postmaster to remain in or about the office, which intervals or “swings” did not exceed one-half hour in length, and were periods in which he was not actually employed according to the statute, is not entitled to extra pay, and that the allowance in the court below for the same was erroneous. The court below allows $136.50 for such extra employment, and to that extent the judgment should be modified. It is therefore ordered, adjudged, and decreed that the judgment of the district court in favor of Langston be reduced from $235.72 to $99.22, and the judgment, as so modified, be, and the same is, affirmed.