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UNITED STATES v. BARRINGER.

decided: February 23, 1903.

UNITED STATES
v.
BARRINGER.



APPEAL FROM THE COURT OF CLAIMS.

Author: White

[ 188 U.S. Page 579]

 MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

Although the court below found that among the rules for the government of the Printing Office adopted by the Public Printer, in pursuance of power conferred by law, there was a rule forbidding the allowance of leaves of absence to temporary employes, the court in effect treated the rule in question as void, since it assumed that, by the acts of Congress governing the Printing Office, temporary employes of the office were entitled to leave of absence with pay. The court deemed that the duration of such leave of absence was such proportion of the yearly annual leave allowed to permanent employes as the period of service of the temporary employe in each year bore to a year's employment. Form the premise of law thus assumed the court held that where a temporary employe had not been allowed his leave of absence because of the enforcement by the Public Printer of the rule denying the right to such leave, the temporary employe was entitled to be paid an extra amount equal to the sum of his regular wages for the period which would have been embraced by the leave had it been granted. In effect, therefore, the conclusion of the court was that because the statutes were held to allow to a temporary employe leave of absence with regular pay, they must be construed as allowing to such person extra pay without leave, and this upon the theory that the employe who had a right to leave with pay, who had not received it under the circumstances stated, was entitled, so to speak, to a commutation in money at his regular rate of wages for the period of leave of which he had been deprived.

[ 188 U.S. Page 580]

     The conclusion thus reached was stated by the court to be exceptional and anomalous, but was deemed to be required by what was conceived to be the unambiguous purport of a provision, held to be mandatory, found in the act of June 11, 1896, making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1897. 29 Stat. 413. The provision in question was said to be entirely new in the legislation of Congress with respect to leaves of absence to the employes of the Government Printing Office. Whilst the anomalous result of the conclusion, as observed by the court below, is, we think, apparent, it would seem to us that a yet greater anomaly is involved in the premise which was taken for granted, that is, that the statutes contemplate the enjoyment by mere temporary employes of the provisions of law relating to an annual leave of absence. We think this is so, because singular as may be the conclusion that since employes enjoy the right to leave with pay, they are therefore entitled to extra pay without leave, we think it is far more singular to conceive that one who is engaged for a temporary employment, say for a day or a week or a month or so, comes within the purview of the statutes providing for annual leaves of absence.

If, however, the acts of Congress compel the adoption of the premise assumed or the conclusion drawn from it by the court, however anomalous they may be, our duty is to enforce the result. Whether the acts of Congress do either cannot be ascertained by a mere referecne to the particular proviso in the appropriation act which constrained the judgment of the court below, but must be determined by an examination of the acts of Congress concerning leaves of absence to employes in the Government Printing Office from the beginning. The review of the statutes for the purpose of determining whether leave with regular pay involves the right to extra pay without leave, will also necessarily require us to examine the same statutes upon which the right, if it exists at all, of temporary employes in the Printing Office to leave of absence must rest. In proposing to first investigate such question we are not unmindful of the fact that the government at bar did not at all dispute the assumption indulged in by the lower court, but rested its

[ 188 U.S. Page 581]

     claim to reversal on other grounds. In view of the fact, however, that we must correctly administer the statutes, and that the question as to the right of a temporary employe to leave of absence has been fully presented by the appellees, we shall examine and decide it. The problems, then, for solution in the order stated are, First. Do the acts of Congress which provide for leave of absence to the employes of the Government Printing Office embrace mere temporary employes of such office? and, Second. If such employes are so embraced, do the statutes, whilst providing for leave in favor of the temporary employes with pay during the term of the leave, provide also for extra pay without leave where the leave has not been enjoyed because of a rule of the Printing Office forbidding its allowance?

The original grant of authority to allow leaves of absence, with pay, to employes of the Printing Office was the act of June 30, 1886. 24 Stat. 91. The statute consisted of two sections, in the second of which it was provided that the act should take effect on and after the first day of July, 1886. The first section is as follows:

"That the employes of the Government Printing Office, whether employed by the piece or otherwise, be allowed a leave of absence, with pay, not exceeding fifteen days in any one fiscal year, after the service of one year and under such regulations and at such time as the Public Printer may designate. Such employes as are engaged on piece work shall receive the same rate of pay for the said fifteen days' leave as will be paid to day hands: Provided, That those regularly employed on the Congressional Record shall receive leave, with pay, at the close of each session, pro rata, for the time of such employment."

We think the employes embraced within this statute were permanent employes and not those who might be called in for temporary or emergency purposes, since the object of the statute was to provide for annual leave during each fiscal year, and the leave was allowed only after the service of one year. Any doubt as to this construction is removed by the proviso which allows a pro rata leave to regular employes of the Congressional Record. As the duration of the work which this class of employes performed was necessarily limited by the sessions of

[ 188 U.S. Page 582]

     Congress, it is obvious that they were considered as excluded by the general language in the prior portions of the act, and hence an exceptional provision giving them its advantages was inserted. And the proviso itself adds omphasis to the significance arising from its enactment, since it conferred the benefits only on such employes as were regularly employed for such work, and therefore excluded those merely called in to meet an emergency in the employment in question.

It is also obvious that the Public Printer in administering this act did not interpret it as embracing temporary employes, since the rules of his office excluded employes of that character from the grant of leaves of absence. And the appropriations made by Congress to execute the act of 1886, one of the acts being enacted by the very Congress which passed the act of 1886, serve to enforce the meaning arising on the face of the act itself. Those appropriations were thus defined: "To enable the Public Printer to comply with the provisions of the law granting fifteen days' annual leave to the employes of the Government Printing Office." (Act of August 4, 1886, making appropriations for the fiscal year ending June 30, 1887, 24 Stat. 255; act of March 3, 1887, 24 Stat. 509, and the urgency deficiency appropriation act of March 30, 1888, 25 Stat. 47, making appropriations for the fiscal year ending June 30, 1888.) From the subsequent legislation, to which we shall hereafter refer, we think that it may be inferred that those charged with the administration of the act of 1886 construed it as meaning that a year's service was necessary to give the right to receive leave of absence, and that, if after earning and enjoying leave by a year's service, before the completion of another full year, the employe severed his connection with the service, he was not entitled to any proportional leave. On August 1, 1888, an act was approved, which, with its title, reads as follows, c. 722, 25 Stat. 352:

"An act to extend the leave of absence of employes in the Government Printing Office to thirty days per annum.

"That the act entitled 'An act granting leave of absence to employes in the Government Printing Office,' approved June thirtieth, eighteen hundred and eighty-six, be so amended as to

[ 188 U.S. Page 583]

     extend the annual leave of absence therein described to thirty days in each fiscal year: Provided, That it shall be lawful to allow pro rata leave to those serving fractional parts of a year."

Clearly this act was but an amendment of the act of 1886, and did not attempt to repeal that act or to extend its benefits to classes of employes not embraced by the prior act. Its object on its face was simply to extend the period of leave of absence from fifteen to thirty days and to confer upon the permanent employes who were entitled to leave, in accordance with the terms of the previous act, an additional right to enjoy the benefits of a pro rata leave, if thereafter they severed their connection with the service before they had completed another entire year's service so as to be entitled to that year's leave.

Undoubtedly the statute was thus construed by the Public Printer in its administration, since he continued in force the rule forbidding leaves of absence to temporary employes, and besides construed the statute as giving the right to proportional leave of absence to only a permanent employe who had served sufficient time to earn at least one annual leave. As the act of 1888 considered and dealt with the prior law, as administered by the Public Printer in pursuance of the authority conferred upon him by the act of 1886, and as the act of 1888 conferred only a new right in one particular -- that is, as to fractional leaves to permanent employes -- it is not probable that, if it was intended to overthrow the construction which the Public Printer had put upon the ...


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