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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