United States v. Garlinger, 169 U.S. 316 (1898)

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United States v. Garlinger

No. 166

Argued January 4-5, 1898
Decided February 21, 1898
169 U.S. 316

APPEAL FROM THE COURT OF CLAIMS

Syllabus

Article 420 of the Treasury Regulations, providing that night watchmen shall be divided into two watches as nearly as possible, both watches to perform duty every night, and empowering the surveyor of the port to make such changes in the division of the watches as he may deem expedient, and to appoint the hours of duty for different watches, and that, when it is necessary to assign a night watchman to a vessel, or to any other all-night charge, the night watchman so assigned must remain on the vessel or on his charge until relieved, and will be excused from performing duty the following night, does not authorize the payment of an extra day’s work to a night watchman so employed during the whole night, and again put upon duty in the following night.

It is not possible for the Secretary of the Treasury, by passing regulations, to divide a day’s service into parts and to attach to each part the pay for a full day’s work.

Where payments for work done in government employ are made frequently and through a considerable period of time, and are received without objection or protest, and where there is no pretence of fraud or of circumstances constituting duress, it is legitimate to infer that such payments were made and received on the understanding of both parties that they were made in full, and such a presumption is much strengthened if the employee waits two years after the expiration of his service before making any demand for further compensation.

This was an action brought by Dixon N. Garlinger in the Court of Claims against the United States wherein he sought to recover for alleged extra service rendered by him while in the employ of the United States. The trial court found the facts to be as follows:

I. The claimant, a citizen of the United States, was appointed by the collector of the port of Baltimore a night inspector in the customs service at Baltimore in 1882. He took the oath of office and entered upon the discharge of the duties of night inspector of customs on April 1, 1882, and continued in office until August 25, 1886, a period of 1,608 days.

II. During the above-named period, the claimant was paid for 1,608 days, of which 1,353 payments were for night service when he was present, rendering actual service, and 255 were for night service when he was absent and off duty.

III. During the 1,353 days of night service, the claimant was required to perform duty as night inspector from sunset to sunrise, and until relieved by the day inspector, the length of the night service consequently varying, and sometimes extending from 5 p.m. of one day until 10 a.m. of the succeeding day. During this time, the claimant was not allowed to be off duty on the succeeding night, after having been on duty two watches, except in the 255 instances set forth in finding 2, when he was off duty and received pay -- that is to say, he performed the duties of both the first and second watch on 1,098 nights without additional compensation, and without being allowed to be off duty on any alternate night.

IV. The petition not having been filed until August 24, 1888, 144 days of the number last above stated are barred by the statute of limitations, leaving 954 days as the subject of the present suit.

V. The claimant objected to his superior officer, the surveyor of the port, against his being required to perform the duties of both watches in one night without being excused from the performance of duty on the following night, and he subsequently remonstrated at various times.

VI. At the time of his entering the service as night inspector, he was furnished by his superior officers with a copy of the regulations promulgated by the Secretary of the Treasury for his governance and defining his duties. It was customary for the surveyor of the port to furnish such regulations to inspectors and others at the time of their entering the customs service. The regulations hereinafter quoted were among those so given to the claimant.

VII. The laws and regulations for the government of officers of customs under the superintendence and direction of surveyor of ports, 1877, were issued by the Secretary of the Treasury to the custom-house authorities of all ports, including the port of Baltimore, and were in operation in all of the principal ports except Baltimore, in which the practice of the port at the time of the claimant’s appointment was not, and had not been, in accordance with the requirement of the regulations making two night watches and relieving the first watch at midnight. There, the surveyor of the port had always required the night inspectors to serve from sunset to sunrise.

VIII. The following are among the regulations given to the claimant when he entered the service, above referred to:

Art. 420. The night watchmen shall be divided into two watches, as nearly equal as possible, both watches to perform duty every night. The surveyor of the port will, however, make such changes in the division of the watches as he may deem expedient, and will appoint the hours of duty for the different watches.

Whenever it is necessary to assign a night watchman to a vessel or to any other "all-night" charge, the night watchman so assigned must remain on the vessel or on his charge until relieved, and he will be excused from performing any duty the following night.

Night watchmen must not quit their charge on being relieved without first making their presence personally known to the officer relieving them. Night watchmen, when on duty, must wear their official badge.

Upon the foregoing findings of fact, the court decided as a conclusion of law that the claimant was entitled to recover $2,862.