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Opinion of the Court.

up to the time of the passage of the resolution. If the denial of leave to temporary employés had been the subject of the inquiry, it would have been concerning the past and existing evil, and not to a mere fraction thereof.

The reply of the Public Printer to the resolution was made at the following session of Congress, in 1897, and practically consisted of a transmittal of a report to the Public Printer made by the cashier of the Government Printing Office, which was printed by the Senate as a public document, Sen. Doc. 59, 54th Congress, 2d Sess., and is largely reproduced in the brief of counsel for the appellee. The report, instead of confining itself to the years from 1890 to 1894, both inclusive, which were inquired about, proceeded to call attention to the subject of unpaid leave of absence claims prior to the year 1890, as follows: "In view of the anticipated legislation looking forward to the liquidation of the unpaid leave of absence claims of present and former employés of this office, as indicated by Senate resolutions, it would seemingly appear in the interest of justice and equity that the scope of such legislation should not be limited or confined simply to the fiscal years of 1890 to 1894, inclusive, but that its provision should also embrace such accrued and unpaid leave of absence claims which were also lost and forfeited during the fiscal years of 1887, 1888 and 1889, and to that end I would respectfully submit for your further consideration a supplemental statement, in detail covering such leaves of absences as were unpaid in the fiscal years of 1887, 1888 and 1889."

This was followed by a statement of the amount which would be needed to pay such prior claims.

Now, it cannot be that the report had in view the refusal to give leave or pay for leave to merely temporary employés, since such claims, if they existed, would have covered a much longer period than that embraced in the report. It could not moreover have covered such claims, inasmuch as at that very time such leaves were not being allowed and could not be allowed under the rules of the office. What the report contemplated was loss of leave in the past sustained by permanent employés of the Government Printing Office, through a con

Opinion of the Court.

struction of the statute which no longer obtained or for failure of appropriations in particular fiscal years or other cause. Acting upon the report, an act was passed by Congress, which became a law on July 19, 1897, 30 Stat. 134, authorizing the Public Printer to pay employés, former employés and the legal representatives of deceased former employés of the Government Printing Office such sums as may be due said employés and former employés, for accrued and unpaid leaves of absence for the fiscal years 1887 to 1894, both inclusive, and appropriating a sum of money therefor.

Now we think from what has already been said concerning the resolution of inquiry, and the report made in answer thereto, which were the foundations of the act in question, that it is impossible to construe this act as at all affecting temporary employés without assuming that both Congress and the Public Printer, and indeed everybody concerned, were engaged at one and the same time in rectifying a wrong and in perpetuating the wrong for the future. The act, however, lends itself to no such deduction. Its provisions become clear, when the review of the legislation which we have made is considered. From that review it results that the exclusion of temporary employés from the right to leave of absence had prevailed from the beginning, and the rule so excluding had been ratified and approved by Congress over and over again, whenever it considered the subject. But it was also true that, from 1886 to 1894, in which latter year the legislation as to leave of absence in the Government Printing Office crystallized, except as to a minor provision, added by the law of 1896, Congress had been called upon in each successive step when it considered the subject to broaden in favor of the permanent employés entitled to leave, the construction placed upon its prior action on the subject. Thus, permanent employés, at each successive consideration by Congress of the subject, had become entitled thereafter to leaves of absence, which had been denied the employés prior thereto. And the purpose of the appropriation act of 1897 was first, as an act of grace to equalize this condition where it had resulted from a change of legislation, and, second, by an act of justice to provide for the cases, where, by

Opinion of the Court.

lack of appropriations, which the review we have made shows may have sometimes been the case, leaves of absence to permanent employés had not been provided for.

Without going into detail, it suffices to say, we repeat, that the confining of the appropriation in the act of 1897 to the years covered by the act, causes the conclusion just stated we think to be irresistible, since it conflicts with the conception that the act was intended to or did embrace temporary employés who had been denied leave from the beginning, including the period down to the time of the passage of the appropriation act in question.

It remains only to consider the fifth finding made by the court below. When the text of that finding is analyzed, we think it but embodies an inference of law deduced by the court from its consideration of the report of the Public Printer made in answer to the Senate inquiry and the court's construction of the provisions of the act of 1897. But the matters from which such legal inference was drawn, as we have seen, are in conflict with the import which we have given them. For instance, the language quoted in the finding and taken from the letter of the Public Printer in answering the resolution of inquiry of the Senate heretofore referred to, in full is as follows:

"Your attention is also called to the fact that during the fiscal years of 1890 to 1893, inclusive, many employés whose terms of service in the office were only for periods of less than one year have never received any pro rata leave of absence, with pay, which appears to have been the practice of the office during that period.”

The construction adopted by the court below that this clause necessarily referred to temporary employés is dispelled by the history of the legislation and practice to which we have referred. That clause embraced only the permanent employés during the years in question to whom leave of absence had not been given, owing to the construction prevailing at the time named, which was either departed from by express changes made in subsequent acts of Congress, or by a construction thereafter placed upon the same. This is the result of the concluding words of the passage relied on, viz., " which appears to VOL. CLXXXVIII-38

Opinion of the Court.

If

have been the practice of the office during that period," excluding therefore temporary employés, since not only at that period but at all times from the beginning, and at the time the report was made, temporary employés were excluded from a right to leave of absence by the express rule of the office. we were to treat the finding as one of fact, in view of the history of the legislation, the absence of any appropriation at any time to pay temporary employés for leaves of absence, the ever presence of the rule forbidding leave to such employés, and the findings as a whole of the court below, and what we deem to be the only implication deducible from the act of 1897, and the communication upon which the court below rested its construction, we should be obliged to say that the ultimate fact which the fifth finding embodies is not consistent with the other findings, and is not entitled to weight.

Our conclusion that temporary employés are not entitled to leaves of absence under the acts of Congress renders it wholly unnecessary to consider the second question which we at the outset proposed, that is, whether, if such employés were entitled to leave with regular pay, they had a claim for pay without leave against the United States because of the rule adopted for the government of the Printing Office by which no leave was allowed. However, whilst not deciding this question, we deem it our duty to direct attention to the fact that the significance which the court below attached to the language found in the act of 1896, and the statement that that language was new in the legislation on the subject, was, we assume, caused by overlooking the various appropriation acts between 1888 and 1894, which the court did not allude to in its opinion, where the language in question is to be found.

The decree of the Court of Claims is reversed, and the cause is remanded to that court with directions to dismiss the claimant's petition.

Statement of the Case.

WAGGONER v. FLACK.

ERROR TO THE COURT OF CIVIL APPEALS FOR THE SECOND SUPREME JUDICIAL DISTRICT OF THE STATE OF TEXAS.

No. 28. Argued December 8, 1902.-Decided February 23, 1903.

While this court is not bound by the construction placed by the state court upon statutes of that State when the impairment of contract clause of the Constitution is invoked, yet when the true construction of a particular statute is not free from doubt considering former legislation of the State upon the same subject, this court feels that it will best perform its duty in such case by following the decisions of the state court upon the precise question, although doubts as to its correctness may have been uttered by the same court in some subsequent case.

By the Laws of Texas of 1883, c. 58, as amended by the Laws of 1885, c. 12, p. 13, a purchaser was bound to pay the notes given in payment for public land as they matured, and it was the duty of the commissioner to issue a patent for the land on payment of the notes and interest. In November, 1885, the laws of Texas did not give the State the right to forfeit lands for non-payment of installments due from purchasers, although at various periods prior thereto there had been provisions in the law to that effect. In 1897 and 1895 laws were enacted providing for forfeiture in case of such non-payment, but giving the purchaser the right to be heard in a court of justice pursuant to certain forms of procedure prescribed in the law upon the question of whether he was actually in default. Held, as to a purchaser of lands in 1885 (after the passage of the act of that year) and who from 1893 to December, 1897, (after the passage of the act of that year) had failed to make any of the payments due under his contract, that the act of 1897 was not repugnant to the Federal Constitution on the ground that it impaired the obligation of the contract, as there was no promise expressed in the legislation existing when the land was purchased to the effect that the State would not enlarge the remedy or grant another on account of the violation by the purchaser of his contract, and no such promise is to be implied. There is a plain distinction between the obligation of a contract and a remedy given by the Legislature to enforce that obligation.

THE plaintiff in error brought his action against the defendant in error in a District Court of Texas to recover as owner certain land described in his petition, and of which he alleged the defendant to be in possession. The defendant denied the

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