119 F. 861 | 5th Cir. | 1903
“The title is no part of an act, and cannot enlarge or confer powers or control the words of the act, unless doubtful or ambiguous. U. S. v. Fisher, 2 Cranch, 358-386, 2 L. Ed. 304; Railroad Co. v. Thomas, 132 U. S. 174, 188, 10 Sup. Ct. 68, 33 L. Ed. 302. The ambiguity must be in the context, and not in the title, to render the latter of any avail.” U. S. v. Oregon & C. R. Co., 164 U. S. 526, 541, 17 Sup. Ct. 165, 41 L. Ed. 541.
The act of congress of February 26, 1900, is neither of doubtful nor ambiguous meaning, but in plain terms provides that all suits pending in any circuit court of appeals, circuit or district court of the United States, on June 27, 1898, which have been dismissed by reason of the act of congress approved June 27, 1898 [U. S. Comp. St. 1901, p. 752] entitled “An act to amend sections one and two of the act of March 3, 1887,” shall be restored to their places in such courts and proceeded with as if the said law had not been enacted; and it further extends the time within which an appeal or writ of error may be prosecuted by the said act to six months from the passage thereof.
This act plainly includes the present suit. All the proceedings under the act of March 3, 1887 [U. S. Comp. St. 1901, p. 752], and amendatory acts, are permissive, and in the main intended to advise the congress. The practice thereunder is exceptional, and the judgments and decrees rendered are not executory. When such judgments and decrees are adverse to the United States and are final in the courts, the attorney general reports them to congress for such action as it sees fit to take. It seems, therefore, that it is not worth while to consider whether the act of February 26, 1900, impairs vested rights or is otherwise unconstitutional.
The motion to strike the case from the docket is overruled.
On the merits, the case is identical with that of U. S. v. Langston, heretofore decided by this court (29 C. C. A. 379, 85 Fed. 613), except in respect to these findings of fact, which were not in the Langston Case.
*865 “That during said intervals the complainant was by the rules of the post office department excluded from the post office, but was under the control and direction of the postmaster to the extent that the postmaster had the right, power, and authority to summon the complainant to duty at any time during any of said intervals, and send him out again collecting or delivering mail, or assign him to any other duty within the range and line of his employment as such letter carrier. That, by reason of the said right, power, and authority of the postmaster to summon the complainant to duty at any time during any of said intervals, the complainant was prevented and prohibited from obtaining or accepting other employment during such intervals, except such employment as should be subject and second to the right, power, and authority of the postmaster to at any time so summon the complainant to duty during any and all of said intervals, and the complainant could not and did not obtain other employment.”
The act under which the petitioner in this case claims extra pay distinctly grants such extra pay only in case the letter carrier is employed during the extra time for which he claims.
The facts as found by the trial judge clearly show that, during the “idle” intervals for which petitioner claims he was not employed in his duties as a letter carrier, he was not required to wear his uniform; he was not required to stay in any particular place; he was doing nothing but waiting, and waiting to be employed. The fact that during the time he was so waiting to be employed the postmaster could have summoned him to duty tends strongly to show that during such interval he was not employed, and not at all that he was employed. The fact that during the time he was so waiting he could not and did not obtain other employment may raise an equity in his favor, but in no wise proves that during the intervals for which he claims pay he was employed.
Under the finding of facts, it seems perfectly clear that during the “idle” intervals, as styled in the finding of facts, the petitioner was not employed in his duties as a letter carrier. If he was not' so employed, then'he has no right to recover under the statute.
For these reasons and others given in U. S. v. Langston, supra, the judgment of the district court is reversed, and the cause is remanded, with instructions to dismiss the suit.
