and in the quartermaster's department of the United States. He also asks for payment of $5 per day for thirteen days after the completion of the work, during which the appellee was waiting for government transportation, and for $5 a day for eleven days occupied in making the return voyage to Seattle. missary supplies of the government of the, at Ft. Davis during the period in question, United States for his own actual needs at the post at which he is assigned to duty, under such limitations as may be made by the department commander, at a cost not to exceed an advance of 10 per centum over and above the cost to the United States government, to cover transportation; that quarters, as soon as available, will be furnished without expense to the said Chesley C. Moses, party of the second part. "In case that the said Chesley C. Moses, party of the second part, is not, at the time of the execution of this agreement, on the classified and eligible list of the civil service commission, it is further agreed by the said Gonzales S. Bingham, major, and chief quartermaster, department of Alaska, party of the first part, that the said Chesley C. Moses, party of the second part, if he be a skilled laborer, shall be engaged for a tem porary period, at the end of which, if his services have been satisfactory, he shall be privileged to undergo an examination for permanent appointment in the classified civil service, should such examination be provided for by the United States civil service commission, and authorized by proper authority. "It is further agreed by the party of the second part that the violation of any or all of the stipulations of this agreement, by the party of the second part, shall give the right to the said Gonzales S. Bingham, major, and chief quartermaster, department of Alaska, party of the first part, to withhold all or any part of the pay or any other emoluments to which the said Chesley C. Moses, party of the second part, may be entitled." It appears that the appellee proceeded from Seattle to Ft. Davis, Alaska, in pursuance of said agreement, and on or about the 1st day of July, 1900, commenced work as a carpenter upon certain buildings under construction for the quartermaster's depart ment at that place, continuing at such work until July 1, 1901; that he worked ten hours a day during the months of July, August, September, and October, except a few Sundays, when he worked but eight hours; that from November 1st to 21st he worked eight and one-half hours per day, and the remainder of the time but eight hours a day -making a total of 311 working days and nine Sundays. The appellee claims that eight hours constitutes a "working day," under act Cong. August 1, 1892, chap. 352, § 1, 27 Stat. at L. 340, U. S. Comp. Stat. 1901, p. 2521, and art. 62,812, of the United States Army regulations, and asks that he be paid "time and a half" for all time worked in excess of eight hours on week days, and "double time" for Sundays and holidays, according to the custom prevailing The appellant claims that the appellee is estopped from now urging a claim for compensation for extra services, by reason of the acceptance by him, without protest, of compensation at the rate of $5 per day for each day worked, regardless of the number of hours, and receipting for the same, acquitting and discharging the government of all liability to him; also that the necessity for completing the buildings before winter, in order that the soldiers might be sheltered, constituted an emergency, which is excepted by the Army regulations from the eighthour law. The court below found as facts: "That by the terms of said contract said petitioner was to perform said services until the completion of said works, or until discharged with the consent of said quartermaster; that said petitioner was to receive the sum of $5 per each working day; that said contract was silent as to the number of hours which under said agreement should constitute a working day; that the rules and regulations of the Army at that time in force provided and provide that eight hours should constitute a day's work in the quartermaster's department, except in cases of emergency; that no emergency is shown to have existed at any time during the existence of said contract, or during the time said petitioner performed services; that said petitioner, pursuant to said contract, went to said Fort Davis, Nome, Alaska, and rendered and performed services as such carpenter until he was discharged with the consent of said quartermaster, and in every way fully performed his part of said contract; that at the time said petitioner ceased to perform said services he received compensation therefor from said quartermaster at the rate of $5 per day or each and every day he labored, without regard for, or consideration had, of the number of hours each day during which said petitioner labored; that said petitioner occupied two hundred and twenty-one and one-half hours in the performance of services as aforesaid over and in excess of the whole number of hours occupied at the rate of eight hours per day, and that in addition to the time occupied by said petitioner in the performance of services at the rate of eight hours per day he occupied the full aggre gate number of two hundred and twenty-one and one-half hours in the rendition of serv ices as aforesaid, for which he has never received any compensation; that said number of two hundred and twenty-one and onehalf hours amount to twenty-seven and sixty-eight one-hundredths days, which, at the rate of eight hours per day; that at the rate of $5 per day, being the contract price, said petitioner was and is entitled to further compensation from said defendant in the sum of one hundred and thirty-eight dollars and forty cents ($138.40); that said sum is due said petitioner, and remains unpaid." From the foregoing facts the court concluded, as matter of law, that at the time said petitioner had fully performed his said agreement he received compensation from said defendant for his said services at the rate of $5 per day for each and every day which petitioner performed such services, without regard for or any consideration had of the number of hours which petitioner worked each day; that as a matter of law said contract should be construed to mean that said petitioner undertook to perform said services at the rate of $5 per day consisting of eight hours; that under the rules of the Department of War in force at that time said petitioner was and is entitled to compensation at the rate of $5 per day consisting of eight hours per day, and would be entitled to extra compensation at the rate of $5 per day for all time occupied by petitioner in the rendition and performance of said services over and in excess of eight hours per day; that said petitioner did actually perform services as aforesaid over and in excess of eight hours per day, amounting to twenty-seven and sixty-eight one-hundredths days, which, at the rate of $5 per day, amounts to the sum of $138.40; that said petitioner is not entitled to time and a half nor to double time, as prayed for in his petition herein, nor to any part thereof, nor is he entitled to any wages for the time occupied by him in making his return voyage to Seattle, nor to any other sum claimed by him in his said petition, except only compensation at the rate of $5 per day for said overtime of twenty-seven and sixtyeight one-hundredths days, as above herein set forth. The judgment of the court was that the appellee do have and recover from the United States the full sum of $138.40. From this judgment and decree both parties have appealed. Argued before Gilbert, Ross, and Morrow, Circuit Judges. Messrs. Marshall B. Woodworth and Jesse A. Frye, for the United States, appellant: each other as to what time shall constitute a day's work. United States v. Martin, 94 U. S. 400, 24 L. ed. 128; Timmonds v. United States, 28 C. C. A. 570, 56 U. S. App. 262, 84 Fed. 933; Coleman v. United States, 81 Fed. 824; Gordon v. United States, 31 Ct Cl. 254; Grisell v. Noel Bros. Flour, Feed Co. 9 Ind. App. 251, 36 N. E. 452; McCarthy v. New York, 96 N. Y. 1, 48 Am. Rep. 601; Schurr v. Savigny, 85 Mich. 144, 48 N. W 547; Luske v. Hotchkiss, 37 Conn. 219, 9 Am. Rep. 314; Brooks v. Cotton, 48 N. H. 50, 2 Am. Rep. 172. The services rendered by appellee were performed by him at a time when an emergency existed, and they are therefore within the exception provided for by the Army regulations. Appellee, having, at the conclusion of his employment with the appellant, receipted in full and discharged the appellant from any further liability toward him for the services he had rendered during such employment, cannot now be heard to make a further demand for services rendered during the time of his employment. United States v. Martin, 94 U. S. 400, 24 L. ed. 128: United States v. Justice, 1 Wall. 535, 20 L. ed. 753; United States v. Child, 12 Wall. 232, 20 L. ed. 360; Coleman v. United States, 81 Fed. 824; Grisell v Noel Bros. Flour, Feed Co. 9 Ind. App. 251 36 N. E. 452. Mr. Edward J. Banning also for th United States, appellant. Mr. Lyman E. Knapp, with Mr. Her bert E. Snook, for plaintiff, appellant: The government, in its business transactions, is bound to deal fairly; and where the facts of a transaction to which the gov ernment is a party would raise an implied obligation in a similar transaction between private individuals, the government is obligated the same as an individual. Clark v. United States, 6 Wall. 543, 18 L ed. 916; United States v. Smith, 94 U. S. 214, 24 L. ed. 115; United States v. Mueller, 113 U. S. 153, 28 L. ed. 946. 5 Sup. Ct Rep. 380. There is a right to recover as upon ar implied contract for services rendered in ex cess of the statutory number of hours per day, though that case goes beyond what we contend for here. Bachelder V. Bickford, 62 Me. 526; O'Boyle v. Detroit, 131 Mich. 15, 90 N. W 669; Re Right of Employees, 6 Det. L. N No. 25; McNulty v. New York, 60 App. Div 250, 70 N. Y. Supp. 133; Holden v. Hardy 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. It was not necessary to make any demand The statute does not provide that the em- | Rep. 383. ployer and the laborer may not agree with before commencing suit. The suit is a suf- tion presented on this appeal. There can be ficient demand. no doubt that it is the duty of the officers Hartford L. Ins. Co. v. Bryan, 25 Ind. of the government in control of the construcApp. 406, 58 N. E. 262. tion of buildings for the use of the War Department to observe the requirements of the Morrow, Circuit Judge, delivered the statute and the regulations of that departopinion of the court: ment relating to such work; but it does not follow that a laborer or a mechanic employed by the government on any of the public works of the United States, performing more than eight hours of service in a calendar day, is entitled to be paid for such extra service in the absence of an agreement to that effect. Prior to the passage of the act of August 1, 1892, Congress had provided an eight-hour law by the act of June 25, 1868 (chap. 72, 15 Stat. at L. 77, Rev. Stat. 3738, U. S. Comp. Stat. 1901. p. 2507). That statute provides that "eight hours shall constitute a day's work for all laborers, Act Cong. August 1, 1892, chap. 352, § 1, 27 Stat. at L. 340, 2 U. S. Rev. Stat. Supp. p. 62, U. S. Comp. Stat. 1901, p. 2521, relating to the limitation of the hours of daily service of laborers and mechanics employed upon the public works of the United States, provides: "That the service and employment of all laborers and mechanics who are now or may hereafter be employed by the government of the United States, by the District of Columbia, or by any contractor or subcontractor upon any of the public works of the United States or of the said District of Columbia, is hereby limited and restrict-workmen, and mechanics who may be emed to eight hours in any one calendar day, and it shall be unlawful for any officer of the United States government or of the District of Columbia or any such contractor or subcontractor whose duty it shall be to employ, direct, or control the services of such laborers or mechanics, to require or permit any such laborer or mechanic to work more than eight hours in any calendar day, except in case of extraordinary emergency." By § 161 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 80), the head of each department is authorized "to prescribe regulations not inconsistent with law for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it." The contract under consideration was for work performed under the control and direction of the War Department, and was therefore subject to the regulations of that department. The United States Army Regulations, Series 1901, art. 62, 812, prcvides as follows: "Eight hours constitute a day's work for all mechanics, and laborers employed by or on behalf of the United States, except in cases of emergency. This rule does not extend to engineers, firemen seamen, watchmen, teamsters, and others the nature of whose employment is peculiar and whose service may be necessary at any time or occasionally at all hours of the day." Whether the statute is limited in its operation to the United States and the District of Columbia, or whether it extends to the territories, need not be determined in this case. It may be assumed that it extends to the territories, and the right of the appellee to maintain his claim may be considered under either the statute or the regulations, and the result will be the same upon the ques ployed by or on behalf of the government of the United States." The In United States v. Martin, 94 U. S. 400, 404, 24 L. ed. 128, 129, the Supreme Court had this statute before it upon a claim made by an employee at the steam heating and gas works of the naval academy at Annapolis for services rendered by him on calendar days in excess of eight hours each day. The court, referring to the statute, said: "This was a direction by Congress to the officers and agents of the United States, establishing the principle to be observed in the labor of those engaged in its service. It prescribed the length of time which should amount to a day's work, when no special agreement was made upon the subject. statute does not provide that the employer and the laborer may not agree with each other as to what time shall constitute a day's work. . . The government officer is not prohibited from knowing these facts, nor from agreeing, when it is proper, that a less number of hours than eight shall be accepted as a day's work. Nor does the statute intend that, where out-of-door labor in the long days of summer may be offered for twelve hours at an uniform price, the officer may not so contract with a consenting laborer. We regard the statute chiefly as in the nature of a direction from a principal to his agent that eight hours is deemed to be a proper length of time for a day's labor, and that his contracts shall be based upon that theory. It is a matter between the principal and his agent, in which a third party has no interest. The proclamation of the President and the act of May 18, 1872, chap. 172, § 2, 17 Stat. at L. 134, U. S. Comp. Stat. 1901, p. 2467, are in harmony with this view of the statute. . . . In the case before us the claimant continued his work after understanding that eight hours would not be accepted as a day's labor, but that he must work twelve hours, as he had done before. He received his pay of $2.50 a day for the work of twelve hours a day, as a calendar day's work during the period in question, without protest or objection. . The claimant's contract was a voluntary and a reasonable one, by which he must now be bound." The case of Timmonds v. United States, 28 C. C. A. 570, 56 U. S. App. 262, 84 Fed. 933, involved the claim of an employee of the quartermaster's department for compensation for labor performed in excess of eight hours per day. The employment was at a specified salary per month, and the claim was made under the provisions of § 3738 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 2507). In all other respects the case was similar to the case at bar. The circuit court of appeals said in that case: "It is urged that under this provision any laborer, workman, or mechanic who labors in the service of the United States more than eight hours a day may recover as upon a quantum meruit for the value of the extra time so given to the service, irrespective of the contract of employment. This statutory provision has passed under the scrutiny of the Supreme Court in United States v. Mar tin, 94 U. S. 400, 24 L. ed. 128. It was there ruled that the provision in question is in the nature of a direction by the government to its agents, and is not a contract between the government and its servants; that it does not specify what sum shall be paid for the labor of eight hours, nor that the price shall be larger when the hours are more, or smaller, when the hours are less; and that, being in the nature of a direction from the government to its agents, it does not constitute a contract to pay its servants for the excess of time employed. In the case before us we take it the allegation that the petitioner was compelled to work for twelve hours a day was not intended to mean involuntary or compulsory service beyond the eight hours a day, but that the work he undertook required that period of service at a stipulated monthly compensation. He was under no compulsion. He could have abandoned his service if it proved distaseful or onerous. Continuing, however, in a service which required twelve hours of time each day at a stated compensation per month, he is not entitled to recover as upon an implied contract for the service in excess of eight hours a day. The act, being construed to be merely a direction to the employing officer of the government, does not furnish grounds of recovery for the supposed excessive service nor confer any right upon or interest in the servant. It is otherwise with respect to letter carriers, because the act with respect to them expressly provides that they shall be paid for the extra time in proportion to the salary fixed by law (United States v. Post, 148 U. S. 124, 37 L. ed. 392, 13 Sup. Ct. Rep. 567), a provision wanting in the act under consideration." In 1886 the Secretary of War had before him claims arising in his department for compensation for hours of work in a calendar day in excess of the eight hours designated in the statute. The Secretary refeared the questions involved in these claims to Attorney General Garland, and requested his opinion as to whether employees required to work more than eight hours per day were entitled to such extra compensation. The opinion of the Attorney General is reported in 18 Ops. Atty. Gen. 389. In this opinion the Attorney General refers to the fact that the statute (Rev. Stat. § 3738 U. S. Comp. Stat. 1901, p. 2507) has been frequently before the department, and has received careful consideration, and almost every question upon which even a fanciful or conjectural doubt could be raised in the interpretation of the statute had been brought to the attention of his predecessors and answers to the applications for opinions had been singularly full and explicit. He also calls attention to the fact that these questions have been submitted to the court of claims and the Supreme Court of the United States, and refers to these decisions as well as those of his own department. He says that from these opinions may be de duced certain propositions which he thinks will meet any case that may have been presented or that may thereafter be presented Among these propositions the Attorney General states the following, applicable to this case: "That the act of 1868, act June 25, 1868, chap. 72, 15 Stat. at L. 77 (Rev. Stat. § 3738, U. S. Comp. Stat. 1901, p. 2507), prescribes the length of time which shall constitute a day's work; but it does not establish any rule by which the compensation for a day's work shall be determined, this being left to be fixed in the ordinary or customary manner, where the law does not otherwise provide. "That it does not contemplate a reduction of wages simply because of the reduction thereby made in the length of the day's work; but, on the other hand, it does not require that the same wages shall be paid therefor as are received by those who, in similar private employments, work a greater length of time per day. This matter of wages is to be dealt with as pointed out in the preceding paragraph, having due regard to the public interests. "That it does not forbid the making of contracts for labor fixing a different length of time for the day's work than that pre- | employer and employee. No such agreement scribed in the law. "All persons who are employed and paid by the day are included within the act, even though they do not fall within the strict language of 'laborers, workmen, and mechanics.'" The Attorney General then proceeds to apply these propositions of law to the facts in the case under consideration, and with respect to certain carpenters employed at Ft. Spokane he says: "Under date of January 23, 1886, Mr. George G. Orr complains to the President that carpenters at Ft. Spokane were compelled from September, 1882, until July, 1884, to work more than eight hours per day, and asks that they be paid as for extra time for labor done beyond those hours. . If the carpenters at Spokane understood that they were to work nine or ten hours per day or to be discharged, and continued in employment with that understanding, they must be held to the conditions of a contract both voluntary and reasonable, and they cannot now recover as for overtime. Mr. Connolly writes that Major King for three years violated the provisions of this statute in work upon the Tennessee river. But the record transmitted to me shows that the stone cutters and stone masons accepted the employment with a full knowledge of the time of labor required and the compensation. It is altogether a mistake that by some reservation in mind the employee can have a claim against the government for compensation for hours beyond the eight hours designated in the statute, he having accepted the employment with the understanding he is to labor the length of time required." appeared in the case, but it was contended on behalf of the plaintiff that it was intended that overwork was to be regulated as to pay, in the absence of an express contract, by its reasonable value. The court found the purpose of the act to be to place the control of hours of labor within the discretion of the employee, giving him the privilege, at his option, to refuse to work beyond the eight hours, or to secure extra compensation for extra work by stipulation in the contract of employment. The court says: "It was one of the avowed objects of the act in question, by establishing a limitation upon the hours of labor, and referring the control of their time, beyond those hours, to the persons employed, to confer a benefit upon the classes protected, and afford them in the employment of their leisure time an opportunity for physical and intellectual improvement which they had not previously enjoyed; but it did not make labor beyond the statutory time, if performed with their consent, illegal, or require compensation to be made therefor unless it was provided for in the contract of employment. It was no part of the design of the act, and, indeed, it would be contrary to its avowed object and intent, to so construe it as to authorize two statutory days' labor to be crowded into one calendar day, or to give the price of two for one calendar day's labor, as that would operate to the manifest social detriment of the classes intended to be benefited. Any construction which should hold out to the la borer extraordinary inducements to prolong his hours of labor, and to shorten those of rest and recreation, would directly conflict with the spirit and meaning of this legislation and the benefits intended to be furnished by it. Its plain and obvious intent was to place the control of the hours of labor within the discretion of the employee, and give him the privilege, at his option, of declining to work beyond the time fixed by the statute, or, if he did so work, to authorize him to secure extra compensation for extra work by stipulating for it in the contract of employment. In the absence of any special provision in such a contract, as to the number of hours constituting a day's labor, the act would be held to apply and fix them at eight hours. Under a contrac which does not specify the hours of labor the employee named therein is lawfully entitled to refuse to labor beyond the statutory time in any calendar day of his employ In McCarthy v. New York, 96 N. Y. 1, 48 Am. Rep. 601, the plaintiff was employed by the superintendent of the department of docks as a scowman at $2.50 per day for his services. He continued in such employ ment from June 27, 1874, to March 4, 1876. The plaintiff testified that during the whole period of his employment he worked ten hours per day, and his action was to recover for two hours extra work rendered upon each day. The statute under which this claim was made reads as follows: "On and after the passage of this act, eight hours shall constitute a legal day's work for all classes of mechanics, workingmen, and laborers, excepting those engaged in farm and domestic labor; but overwork for an extra compensation by agreement between employer and employee is hereby permitted." Laws ment; but he may lawfully contract to labor 1870, chap. 385, § 1, p. 919. In this statute work in excess of eight hours in each calendar day was distinctly recognized as entitled to extra compensation, provided it was by agreement between beyond that period, and stipulate for extra compensation for the labor rendered in excess of that time. The language of the act does not authorize any inference that it was intended to confer the right upon persons |