Opinion of the Court.

The act of March 2, 1903, quoted, prohibits the payment of any increase in longevity pay to officers after retirement; and it has been very recently held by this court, reaffirming a former decision, that longevity pay must be conferred by statute and not by judicial construction. Yeamans v. United States, 52 C. Cls. 388, and reaffirming Bowie v. United States, 45 C. Cls. 48.

Under these decisions defendants contend that any longevity pay was expressly cut off from retired officers. That is. for any service on the retired list they did not become entitled to any longevity increase unless it should be so expressly provided in the later statute. The acts of June 3, 1196, and August 29, 1916, as the Comptroller points out, make no mention of longevity increase, but merely provide for the promotion on the retired list of said officers and give them the rank, pay, and allowances of the higher grade; this, of course, subject to any limitations of law. On May 12, 1917, 40 Stat., 48, Congress expressly extended longevity increases to retired officers detailed to active duty, and since that time the plaintiff has received the said increases. This act is referred to by counsel as legislative construction of the acts of the preceding year, and as showing that Congress intended to confer increased longevity pay in the Army and Navy acts of 1916. It can as well be contended that the passage of the provision in the act of May 12, 1917, expressly conferring longevity increases was a recognition and approval of the decision of the Comptroller that the 1916 acts had not conferred longevity increases, and a determination to make such provision.


The act of March 2, 1903, 32 Stat., 932, provides:

"That hereafter, except in case of officers retired on account of wounds received in battle, no officer now on the retired list shall be allowed or paid any further increase of longevity pay, and officers hereafter retired, except as herein provided, shall not be allowed or paid any further increase of longevity pay above that which has accrued at the date of their retirement."

Opinion of the Court.

The act of June 3, 1916, 39 Stat., 183, provides as follows: "And provided further, That hereafter any retired officer who has been or shall be detailed on active duty, shall receive the rank, pay, and allowances of the grade, not above that of major, that he would have attained in due course of promotion if he had remained on the active list for a period beyond the date of his retirement equal to the total amount of time during which he has been detailed on active duty since his retirement."

The purpose of the provision in the act of June 3, 1916, was to increase the pay of retired officers who are detailed on active duty, as well as to provide for the promotion of certain grades of officers on the retired list who are detailed on active duty. A major on the retired list with 10 years' service on the active list to his credit under the act of March 2, 1903, supra, could not receive any longevity pay for service on active duty after his retirement from the active list, nor could any other officer of any grade after his retirement be allowed or receive any longevity pay for service performed after his retirement. Congress was advised of this law and sought by the act of June 3, 1916, to give to the retired officer detailed on active duty the pay which he might have earned by years of service on active duty after his retirement.

Longevity pay is an inherent part of the pay of an officer which he earns by service. It is fixed by law. A statute which provides that a retired officer detailed on active duty shall receive the pay of the grade that he would have attained in due course of promotion if he had remained on the active list for a period beyond the date of his retirement equal to the total amount of time during which he has been detailed on active duty must intend to give him the pay which he would have received if he had never been retired. Otherwise the statute would have no meaning. The fact that an officer was a major on the retired list when he was detailed on active duty would not under this statute prevent him from earning by his active service the longevity pay provided therein for retired officers when detailed on active duty.

Judgment will therefore be entered for plaintiff in the sum of $284.17. And it is so ordered.

70606-18-c c-VOL 53-17



[Nos. 31227, 31304, 32812, 32852. Decided March 11, 1918.]

On the Proofs.

Early in 1907 the Postmaster General issued order No. 165 which was modified in June of that year by order No. 412, whereby plaintiffs and other railroad companies engaged in carrying the mails were notified that for the quadrennial term beginning July 1, 1907, he would use for a divisor, în ascertaining the average daily weights of the mails, the number of days included in the weighing period, and subsequent thereto weights have been ascertained accordingly. Some of the plaintiffs made general objections to order No. 412 and others made no objection whatever. To those making objection the Postmaster General replied that no contract would be made which excluded the full observance of the rules and regulations, and at the time order No. 412 had been promulgated. The adjustment notices which later followed had not been issued; all plaintiffs received and transported the mails and were paid therefor periodically according to the terms of order No. 412 and the adjustment notices issued by the Postmaster General and without objection or protest when payments were accepted. The contracts were

with the different plaintiffs who operated both classes of routes and contracted for both alike.

The suits may be classified as (1) claims of so-called six-day routes; (2) claims of so-called seven-day routes; and (3) claims of a plaintiff on parts of whose line of railroad are routes affected by the land-grant act. Plaintiffs have been paid quarterly since July 1, 1907, upon the basis of 105 for a divisor and now contend that the use of 90 as a divisor was required by law, and that they should have received greater compensation. It is to recover this difference in pay that the several suits were brought.

Contracts; railroads free agents in carrying the mails.-It is settled that the railroad companies were, until the act of July 28, 1916, 39 Stat., 425, free agents in contracting with the Postmaster General in the transportation of the mails.


Mails, maximum pay fixed by statute.-A proposition equally well settled is that the rates of pay stated in the several statutes were maximum rates.

Postmaster General, powers and duties with respect to transportation of mails. The acts of June 8, 1872, 17 Stat., 283, 3997 R. S., March 3, 1873, 17 Stat., 558, and the several acts amendatory thereof charge the Postmaster General with the duty of engaging in contracts with railroads carrying the mails within specified maximum rates and clothe that official with full discretionary powers to determine the character of service to be performed and the compensation to be made therefor, "so that each railway company shall receive, as far as practicable, a proportionate and just rate of compensation, according to the service performed."

Same. Where discretionary powers are vested by statute, their exercise by one or more officials can not prevent their exercise by a successor.

Statutes.-The act of March 3, 1873, supra, did not repeal sections 210 and 212 of the act of June 8, 1872, 3997 and 3999, R. S. Statutory construction.-The act of March 3, 1873, supra, in providing

for an average weight of mail, according to which compensation was to be readjusted and under which contracts for transportation should be made, was directory merely, in that it gave the Postmaster General directions which ought to be followed, but not such as limited the power with respect to which the directions were given that it could not effectually be exercised without observing them.

Statutes, directory and mandatory.—A deviation from an act that is merely directory may subject the official to responsibility to the Government, but advantage thereof can not be taken by third parties.

Statutory construction; usage long continued, effect of.—Since the act of March 3, 1873, supra, may be treated as directory merely and as clothing the office of the Postmaster General and not the incumbent with the powers and duties therein found, usage alone could not make it mandatory, and an alteration of a long continued departmental practice thereunder can not be prevented by parties whose claims arise after full notice of the change.

Same. The rule, that in the construction of a doubtful and ambiguous law, the contemporaneous construction of those who are called upon to act under the law and are appointed to carry its provisions into effect is entitled to great respect and ought not to be overruled without cogent reasons, has no application to the instant case, because the long continued practice of the Post Office Department is a usage having its origin in

Reporter's Statement of the Case.

the duty of exercising judgment and discretion and not in interpretation of ambiguous terms under which rights be came vested.

Statutes. Neither the act of March 3, 1905, 33 Stat., 1088, nor the act of March 2, 1907, 34 Stat., 1212, affected the powers and duties of the Postmaster General in any regard, whether such powers were statutory or discretionary, mandatory or direc tory, except to require weighings for not less than 90 successive working days.

Construction of statutes, legislative adoption of executive.-Quaere: Whether proceedings in the Committee of the Whole House on the State of the Union amount to legislation. It is certain such proceedings can not be accepted as showing the meaning of an act that was adopted containing no reference to the method of ascertaining the average weight of the mails. Assumpsit; contracts implied.—The general rule is, where one party, at the request of another, does work or labor or performs service for the benefit of such other, that the law will imply a promise on the part of the one receiving the benefit to pay the reasonable value of the work or labor done or service performed, where there is no express contract between them fixing the terms upon which the service is to be performed.

"But the law never implies a promise to pay unless some duty creates such an obligation, and more especially it never implies a promise to do an act contrary to duty or contrary to law."

Estoppel. The distance circular proposed no terms and the readjustment notice did. It was the acceptance and transportation of the mail and the repeated acceptance of the monthly or periodical pay after the Postmaster General had replied to the protests, all without protest or objection, that consummated the contract, the terms of which were evidenced by the notice itself. While the carrier had protested it would not consent, it yet consented. A party will not be heard to deny the natural and reasonable effect of his action as regards his contractual relation or to take a position inconsistent therewith when to do so would involve a breach of official duty by the other contracting agent.

BOOTH, BARNEY, DOWNEY, and HAY, JJ., specially concurring.

The Reporter's statement of the case:

Messrs. Benjamin Carter, Alexander Britton, Frederick D. McKenney, F. Carter Pope, and A. R. Serven, for the plaintiffs. Britton & Gray, McKenney & Flannery, and Mr. James F. Wright, were on the briefs.

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