MISSING PERSONS ACT-Continued
III. Statutory authorization for the enlistment of natives
of the Philippines in the Army of the United States
is found in 10 U. S. C. 321. When so enlisted they
do not form a unit which could be called a "Militia
Corps," within the meaning of Section 846 of
Title 10, U. S. Code (3 Stat. 115; R. S. 1288).
Section 846 of Title 10 is not a bar to the plaintiff's
claim. Id.
Army and Navy 4, 18.
Militia 3.
IV. The provision that determinations as to "entitlement
to pay" under Section 1009 of the Missing Persons
Act are to be made by the department "and all
such determinations shall be conclusive" includes
legal as well as factual elements. Congress intended
that the troublesome questions arising under the
Missing Persons Act were not to be the subject of
litigation. Id.
See Indian Claims VIII, IX, X, XI, XII, XIII, XIV, XV, XVI.
"ORIGINAL ISSUE."
See Taxes I, II, III, IV, V.
OVERTIME PAY.
I. In a suit for the extra compensation for Sunday and
holiday work provided for in Sections 1 and 2 of the
Act of March 2, 1931 (46 Stat. 1467), it is held that
the plaintiffs, members of the Immigration Border
Patrol, do not come within the provisions of the
statute, which relates only to duties performed at
ports of entry, in connection with the examination
and landing of persons desiring to enter the United
States; and plaintiffs are not entitled to recover.
Greene and Toney, 248.
II. A member of the border patrol has no power to give
an alien permission to enter the United States,
which can be done only by an immigration inspector
or in certain cases by a board of special inquiry, upon
examination at the port of entry. The examination
made by members of the border patrol is not that
examination contemplated by the 1931 Act. Id.
III. The statutory provision for overtime work by custom
and immigration inspectors is for the benefit of the
owner of the vessel or other conveyance arriving at
a port of entry at some hour other than the regular
work period from 8 a. m. to 5 p. m. Id.
IV. Since the reason for the statutory requirement that the
payment of extra compensation for overtime work
by customs and immigration inspectors be made by
the owner of the vessel or other conveyance was be-
cause the services were rendered for the owner's con-
venience, it follows that the members of the border
patrol do not come within the provisions of the Act
of March 2, 1931, providing for this extra compen-
sation, because the owner or consignee of the vessel
or conveyance never required the services of the
members of the border patrol but only the services
of inspectors or other employees at ports of entry.
O'Rourke v. United States, 109 C. Cls. 33, and
Taylor v. United States, 114 C. Cls. 59, distinguished.
Id.
V. In a suit by plaintiff, a section foreman on the Alaska
Railroad, owned and operated by the United States
Government, for overtime compensation for work
in excess of 40 hours per week, under the Act of
March 28, 1934 (48 Stat. 522), it is held that plaintiff
is entitled to recover. Judgment suspended for
further proceedings. Poggas. 385.
VI. So-called wage board employees of the Government are
mechanical employees who perform the same kind
of work for the Government that others of the same
trade perform for private enterprise, and whose
wages are not set by statute in the Classification
Acts, as are those of other Government employees,
for the reason that the Government is in direct
OVERTIME PAY-Continued
competition with private employers for their serv-
ices and must keep their wages more nearly on a
level with those paid by private enterprise in the
area where they work, but whose wages are set by a
board or administrator empowered by statute or
otherwise to do so. In the instant case the Secre-
tary of the Interior was the "wage-fixing authority"
contemplated by Section 23 of the 1934 Act. Id.
United States 39 (1).
VII. That there was discussion, which might be called bar-
gaining, preceding the decision of the Secretary of
the Interior, did not alter the fact that the power
and authority to fix the wages in question was
placed with the Secretary by the statute. Id.
VIII. The fact that if Section 23 was applicable to the
Alaska Railroad its application would produce
difficulties of computation in some cases does not
show that Congress did not intend to cover em-
ployees of the railroad when it used language which
did cover them. Id.
IX. Where it is conceded by the parties that the plaintiff
was covered by the War Overtime Pay Act of 1943,
until the Act expired on June 30, 1945, but the
plaintiff urges that his overtime was not computed
on the proper basis; and where it is found that in the
instant case the plaintiff was not covered by the
Act of October 21, 1940, or by the Joint Resolution
of December 22, 1942; it is held, following the
decision in Barker v. United States, 117 C. Cls. 221,
that the plaintiff is not entitled to "true overtime"
as determined by the formula set forth in the
opinion in Townsley v. United States, 101 C. Cls.
237 (affirmed 323 U. S. 557). Id.
X. The Federal Employees Pay Act of 1945 (59 Stat.
296), provides "true overtime" which is computed
on the basis of 2,080 hours per year, which is 1731⁄2
hours per month, or approximately twenty-eight
8-hour days. It was applicable to the monthly
wage-board employees of the Alaska Railroad, such
as the plaintiff. The plaintiff, having been paid
overtime pursuant to this Act, may not recover
more for the period covered by it. Id.
XI. The Government's contention that the evidence of the
plaintiff's Sunday work is inadequate is not sus-
tained by the Court. Id.
XII. Under the Act of November 1, 1949 (63 Stat. 1062),
conferring on the United States Court of Claims
jurisdiction to adjudicate the claims of present or
former employees of the Alaska Railroad for over-
time pay under the provisions of the Act of March
28, 1934, "notwithstanding any other provision of
law," it is held that it was the intent of Congress to
waive the defense of laches as well as the statute of
limitations. Id.
I. In a suit for the alleged infringement by the defendant
of United States patent No. 1,899,264, issued Febru-
ary 28, 1933, to Robert Faries, now deceased, and
now held by the plaintiffs, it is held that there is
shown no reasonable basis for the claim that the
patent has been infringed by the defendant and
plaintiffs are not entitled to recover. Faries, 594.
United States
II. The patent in suit relates to spikes such as are used in
railroad construction and more particularly to a
spike which, when used in combination with a track
rail tie plate and a wooden tie, will limit the extent
of the penetration of the spike into the wooden ties
and will provide predetermined working clearances
between the overhang of the spike heads and the
base flange of the rail. Id.
III. The Pennsylvania Railroad Company held a license
to use the patented spike and to authorize others
to manufacture it for the use of the company. Id.
Patents 211 (1).
IV. In planning to construct the Conemaugh River
Reservoir in Pennsylvania, where portions of the
Pennsylvania Railroad lines ran across the land
covered by the proposed project, the Government
entered into a contract with the railroad for the
relocation of such railroad lines and in turn agreed
to convey to the railroad the land required for the
track relocations; and where the defendant, pursuant
to this agreement, entered into a contract with a
construction company to perform the necessary
work for the relocation of the tracks in accordance
with the specifications supplied by the railroad
company; and where in constructing the new
trackage the construction company used the spikes
and related materials covered by the Faries patent;
it is held that the license issued to the Pennsylvania
Railroad Company was broad enough, when read in
the light of the contracts and the background of the
facts, to cover the use of the Faries patent by
the construction company.
Id.
V. The terms of the license to the Pennsylvania Railroad
Company for the use of the Faries patent are very
broad, and while the Pennsylvania Railroad was not
a party to the construction contract, the relocated
track was not built for the Government but for the
exclusive use of the Pennsylvania Railroad, and
there is no reasonable basis for the claim that the
patent has been infringed by the Government. Id.
United States
See also Contracts VII, VIII, IX, X, XI; Eminent Domain XLII
XLIII, XLIV, XLV.
PAY AND ALLOWANCES.
I. Where plaintiff, then an enlisted man, sergeant, in
the Army on temporary duty on Wake Island, was
captured by the enemy in December 1941 and held
as a prisoner of war until August 1945, sues for per
diem allowance in lieu of quarters and rations, under
Section 2 of the Missing Persons Act, as amended;
it is held that plaintiff is entitled to recover for the
period of his captivity from December 23, 1941, to
August 14, 1945, the subsistence and quarters of
which he was in receipt, according to the applicable
regulations, at the time of his capture. Entry
of judgment suspended pending the filing of a
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