EDGERTON, Associate Justice.
The only question in appellant Meyer's suit, No. 7799, is the method of calculating overtime pay in the customs service. The pertinent statute provides: "That the Secretary of the Treasury shall fix a reasonable rate of extra compensation for overtime services * * * such rates to be fixed on the basis of one-half day's additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond five o'clock postmeridian (but not to exceed two and one-half days' pay for the full period from five o'clock postmeridian to eight o'clock antemeridian), and two additional days' pay for Sunday or holiday duty. The said extra compensation shall be paid by the master, owner, agent, or consignee * * * to the collector of customs, who shall pay the same to the several customs officers and employees entitled thereto according to the rates fixed therefor by the Secretary of the Treasury. * * *"
Appellant Meyer, a deputy surveyor of customs, worked overtime from 5 p.m. to 6:20 p.m. on January 7, 1940. Half his regular day's pay was $4.86. He was tendered $4, in accordance with T. D. 49669. He declined this tender and demanded $4.86. On May 7, 1940, he brought this suit against appellees — the Secretary, the collector of customs, and the steamship company which had used appellant's services. He asks a declaratory judgment that he is entitled to $4.86 and that T. D. 49669 is invalid. He also asks a judgment against the company in favor of the collector, for his use, or in the alternative a judgment against the collector, for $4.86. Again in the alternative, he asks a mandatory injunction requiring the Secretary and the collector to pay him overtime compensation in accordance with the statute. The District Court granted appellees' motions to dismiss the complaint, on the ground that "the rate of pay is in the discretion of the Secretary of the Treasury." We think that this was erroneous, and that appellant is entitled, at least, to a declaratory judgment.
Appellees contend that the term "day's pay," as used in the statute, does not necessarily mean a day's pay at the employee's regular rate; but we cannot imagine what else it can mean. It cannot mean pay for a day of overtime. If it meant that, the context would require that a man be paid, for five hours of overtime, fifty per cent more than for a full day of overtime. Obviously, such a construction would be absurd. On the other hand, if "day's pay" is taken to mean a regular day's pay, the statute makes the entirely rational provision that for five hours of overtime a man shall receive fifty per cent more than one regular day's pay. We think it plain that this is what the statute means. It is therefore unnecessary to discuss at length the legislative and administrative history of the statute, which, however, confirms this understanding. The phrase, "the Secretary of the Treasury shall fix a reasonable rate of extra compensation," was carried into the present 1920 act from the 1911 act. The amendment of 1920 introduced the requirement that the rates be fixed "on the basis of one-half day's additional pay." Older general language cannot be allowed to overrule newer specific language. Even when general and specific provisions are enacted at the same time, if they are inconsistent, the specific limits the general.
Moreover, our construction does not, as appellees contend, deprive the older and general phrase of all meaning. The fixing of pay for overtime services involves two elements; the definition or measurement of "overtime services," and the definition of the pay for such services. The Secretary has, and exercises, a considerable discretion in regard to the first element. Thus the Customs Regulations of 1937, Art. 1244, provide: "(d) In computing extra compensation where the services rendered are in broken periods and less than 2 hours intervene between such broken periods, the time served should be combined with the waiting time and computed as continuous service. (e) Where 2 hours or more intervene between broken periods, one-half day's extra pay will be allowed for each distinct 2-hour period or part of a 2-hour period, if waiting time and actual service rendered within each period consist of at least 1 hour."
In appellant Callahan's suit, No. 7798, which was consolidated for hearing with Meyer's, the basic facts are the same except that Callahan, instead of being a deputy surveyor of customs, is a clerk in the entry division of the customs service. But whereas Meyer does not name the United States as a party, Callahan names the United States as sole defendant and
In Hoeppel v. United States,
No. 7798 affirmed.
No. 7799 reversed.