Opinion of the Court.

320 U.S.

hour for food and rest. Furthermore, these tours of duty under the proviso are movable within the twenty-four hour period in accordance with prevailing working hours and the requirements of the service.

We do not see that International Ry. Co. v. Davidson, 257 U. S. 506, decides otherwise. That was a suit to enjoin the Collector from enforcing the license provisions of § 5, note 2, supra, as to passengers and baggage, against an international bridge. These were held inapplicable to bridges. In speaking of § 5, the opinion stated: "This substituted section defines what shall be deemed overtime, how the rate of extra pay shall be fixed, and what the work is, for which extra compensation shall be paid." It did not, however, interpret the statute or consider the proviso both of which we are called upon to do here. Contra, see Ferguson v. Port Huron & Sarnia Ferry Co., 13 F. 2d 489, 492.

As to Sundays and holidays, we construe the statute to require extra compensation for inspectors without regard to the hours of the day or whether such services are additional to a regular weekly tour of duty. Before § 5 there was no authority to pay extra compensation for Sunday and holiday work. Revised Statutes, § 2871, allowed extra pay for nighttime work only. Somewhat indirectly the Act of February 13, 1911, gave Sunday and holiday pay and the 1920 amendment made the right to that extra compensation clear by saying extra compensation shall be paid inspectors "who may be required to remain on duty between the hours of five o'clock postmeridan and eight o'clock antemeridian, or on Sundays or holidays." This language and the Customs Regulations, note 18, supra, give an employee who works regular hours weekdays in daytime extra pay for Sunday and holiday work. The statute covers also those who work outside the statutory normal hours. Logically, if Sundays and holidays were not to receive extra compensation, without regard to whether services on those days were over

561

Opinion of the Court.

time, there would have been no occasion to add Sundays and holidays to the overtime. Overtime would cover every situation.

The proviso of § 5 does not give the Collector of Customs authority to make assignments which deprive inspectors of this Sunday and holiday pay. It authorizes adjustments of hours but specifically forbids alteration of overtime pay. It is silent as to Sundays and holidays which leaves the earlier grant of extra compensation for those days in effect. Overtime pay is also applicable to Sundays and holidays when inspectors work longer than nine hours with one hour for food and rest. The rate of overtime extra compensation on Sundays and holidays is the same as the rate for week days. The administrative practice is uncertain. It does not support a contrary conclusion. The Government cites excerpts from testimony on amendatory bills, not here directly involved, which indicate the extra compensation is paid for Sundays and holidays." Findings 5 and 6 of the Court of Claims, note 17, supra, show that extra compensation was paid at times for Sunday and holiday services.23

Two further contentions of the Government require consideration. It is said that § 5 of the 1911 Act as

22 Hearings on S. 1504, S. 1774 and S. 2188, Committee on Commerce (Senate), 67th Cong., 1st and 2d Sess., pp. 30, 31 and 130.

23 See T. D. 49658, approved July 18, 1938, after the period here in question, where Art. 1242 (g) is amended to read as follows:

"(g) Extra compensation is not authorized for any service performed by a customs officer or employee pursuant to his assignment to a regular tour of duty at night or on a Sunday or holiday."

There are similar overtime acts in other services. They allow Sundays and holidays extra. Cf. 46 Stat. 1467, and U. S. Dept. of Labor, Bureau of Immigration General Order No. 175, April 27, 1931, (d); 49 Stat. 1380 and Dept. of Commerce Circular No. 307, December 17, 1938; Bureau of Marine Inspection and Navigation, II; 48 Stat. 1064, as amended, and Federal Communications Commission Rules and Regulations, Part 8, § 8.301 (i).

55282644- 41

amended does not apply to services rendered at a bridge or tunnel. This Court so held in 1922. International Ry. Co. v. Davidson, 257 U. S. 506, 512. At that time, the section's application was limited to "vessel or other conveyance." Since then §§ 401, 450 and 451 of the Tariff Act of 1922, 42 Stat. 858, 948, 954, and of the Tariff Act of 1930, note 3, supra, have expanded the instrumentalities to include every contrivance capable of being used as a means of transportation on land or water.24 The difference in definition, we think, brings bridges and tunnels under the overtime pay requirements of § 5.

Finally the Government urges that in awarding compensation for "overtime" services credit should be allowed to it for that part of the base pay received for such services. We think the Congressional intention to give extra compensation precludes such a claim. The inspectors in addition to their regular salaries for week days are entitled to the statutory additional pay for overtime, Sundays and holidays.

The judgment of the Court of Claims is reversed and the proceeding remanded to that Court for determination of the claim of the inspectors in accordance with this opinion.

Reversed.

MR. CHIEF JUSTICE STONE is of the opinion that the judgment should be reversed in its entirety and the suits dismissed.

[The foregoing opinion of the Court is printed as amended by an order of February 28, 1944, United States v. Myers, 321 U. S.]

24 See also § 9 of the Customs Administration Act of 1938.

The change was deemed significant as to railroads. Compare Mellon v. Minneapolis, St. P. & S. S. M. Ry. Co., 285 F. 980, with Mellon v. Minneapolis, St. P. & S. S. M. Ry. Co., 11 F. 2d 332, 334.

Statement of the Case.

CALIFORNIA ET AL. v. UNITED STATES ET AL.

NO. 20. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.*

Argued December 6, 1943.-Decided January 3, 1944.

The Maritime Commission, upon finding that waterfront terminals in the San Francisco Bay area were engaged in preferential and unreasonable practices-resulting from excessive free time and noncompensatory demurrage charges-in violation of §§ 16 and 17 of the Shipping Act of 1916, as amended, prescribed schedules of maximum free time and minimum demurrage charges. The State and a municipality, which operated terminals but which were not common carriers by water, challenged the validity of the order as applied to them. Held:

1. The order was proper under § 17 which authorizes the Commission, when it finds unjust and unreasonable a regulation or practice relating to or connected with the receiving, handling, storing, or delivering of property, to "determine, prescribe, and order enforced a just and reasonable regulation or practice." P. 584.

2. It was proper to fix minimum demurrage charges which would reflect the cost of the service. P. 583.

3. The phrase "other person subject to this Act"-defined in § 1 as "any person not included in the term 'common carrier by water,' carrying on the business of forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water"-includes the State and the municipality. P. 585.

4. Regulation of the activities and instrumentalities here involved-whether activities and instrumentalities of private or public agencies was within the power of Congress under the Commerce Clause. P. 586.

46 F. Supp. 474, affirmed.

APPEALS from decrees of a District Court of three judges refusing to set aside an order of the Maritime Commission, 2 U.S. M. C. 588.

*Together with No. 22, Oakland v. United States et al., also on appeal from the District Court of the United States for the Northern District of California.

Opinion of the Court.

320 U.S.

Mr. Lucas E. Kilkenny, Deputy Attorney General of California, with whom Mr. Robert W. Kenny, Attorney General, was on the brief, for appellants in No. 20. Mr. W. Reginald Jones for appellant in No. 22.

Solicitor General Fahy, with whom Assistant Attorney General Shea, and Messrs. Valentine Brookes and K. Norman Diamond were on the brief, for the United States and the United States Maritime Commission, appellees.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The United States Maritime Commission found that terminals along the commercial waterfront in the Port of San Francisco were engaged in preferential and unreasonable practices in that they allowed excessive free time and made non-compensatory charges for their services, all in violation of §§ 16 and 17 of the Shipping Act of 1916, as amended. Accordingly, the Commission ordered the cessation of these proscribed practices, and in order to assure lawful practices it prescribed schedules of maximum

1 Section 16, so far as here relevant, provides: "That it shall be unlawful for any common carrier by water, or other person subject to this Act, either alone or in conjunction with any other person, directly or indirectly-First. To make or give any undue or unreasonable preference or advantage to any particular person, locality, or description of traffic in any respect whatsoever, or to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." c. 451, 39 Stat. 734, c. 581, 49 Stat. 1518, 46 U. S. C. § 815.

The pertinent portion of § 17 reads: "Every such carrier and every other person subject to this Act shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. Whenever the commission finds that any such regulation or practice is unjust or unreasonable it may determine, prescribe, and order enforced a just and reasonable regulation or practice." c. 451, 39 Stat. 734, Ex. Ord. No. 6166, c. 858, 49 Stat. 1987, 2016, 46 U. S. C.