(dissenting).

The appellants contend that under rule 6, as amended by the arbitration, the men who worked on 12-hour assignments should be deemed to be working upon a straight 8-hour assignment (instead of 12), and, consequently, should have the full monthly wage for the 8 hours worked, and, in addition, an hourly wage for 4 of the 12 *777 hours as overtime. 1 In short, if they worked 20 12-hour periods in a month, they were to have in addition to the monthly wage, payment'for 80 hours, or 10 days.

The appellees contend that rule 6, as amended by arbitration, is not applicable to the situation which arose during the pendency of the arbitration proceedings and the appeal from the award, except where the men work for 8 hours per day for 6 successive days. It is agreed that men on 12-24 hour assignments did not work at any time for 6 successive days. 2 Consequently, the appellees contend that other portions of the agreement must be examined for the purpose of determining the contract rule applicable to the situation. They find in rule 2 a provision concerning broken assignments which they contend is applicable. 3 This rule, it *778 will be observed, remains in the contract, which is modified only in so far as the rate of pay and the hours of service fixed by rule'6 were changed by the arbitration proceedings. The appellants’ reply to this argument is that the employers were bound by their agreement to put the arbitration into effect immediately, and that, having failed to do so, and having assigned a portion of the men to work 12-24 hour shifts as theretofore, these crews should be deemed to be serving regular straight-time, assignments within the meaning of rule 8, and, consequently, entitled to overtime under that rule. . Appellants claim that the fact that the assigned crews did not work 6 successive days as required by rule 6 should be ignored because the failure of the crews to work 6 successive days of 8 hours each was the fault of the employer. Appellants’ whole case is predicated upon this proposition.

The employers contend that the award was suspended during the proceedings for the impeachment of the award in the District Court and in the Circuit Court of Appeals. The statute is silent as to the effect of the appeal upon the award. The agreement of the parties to put the award into immediate effect must be read in the light of the right of either party to appeal. 4 So far as this case is concerned, however, that question becomes academic, for the parties entered into an agreement during the appeál that the provisions of the award with relation to hours of labor should relate retroactively, not to November 1, 1927, the first day of the first month after the making of the award, but should relate to the 1st of March, 1928. This agreement was made May 19, 1928. (See footnote 1.) If we assume, as appellants contend, that the carrier violated its original agreement to put the hours of labor into effect on November 1, 1927, the agreement of May 19th validated that assignment (12 hours) at least up to the date of May 19, 1928, and left in doubt only the wages that should be paid during that period. That question was also considered in the contract of May 19th, which provided that the salary increase should be effective from and after January 1, 1927. The increased payment was to be made to all employees who served between January 1, 1927, and April 30, 1928, payment to be made “not later than June 15, 1928.” (See footnote 1.)

It is clear that this contract could not have contemplated that the (12-24 hour) employees should serve on the 8-16 hour basis after the effective date of the award, March 1, 1928, because 2% months had elapsed under the old assignments at the time the agreement was made (May 19). It seems equally clear that it was the intent of the parties to this stipulation of May 19th that the men would continue to work on 12-hour shifts until the final decision in the case, subject, of course, to such salary adjustments as the contract and award provided.

It cannot justly be said under these circumstances that the award was ignored, fo.r the employers contend that the award was suspended by the impeachment proceedings, and this view was acquiesced in by the employees who continued' to work on the old assignments and who ' in effect agreed to continue so to do until the decision on appeal.

The appellants state that the appellees gambled upon the question as to whether or not the award as to hours of service would be affirmed, and that as a part of this gamble they neglected to secure 6 successive days’ labor from the employees, and that, having lost the gamble, they should be correspondingly punished by paying for overtime, although the hours worked over what they would have worked on the 8-hour assignments have already been paid for, as appellees contend, in accordance with the terms of the award. 5 This is not the question involved. It is *779 a simple question of the interpretation of a contract as amended by the award. The features of the contract which were not submitted to arbitration could not have been changed by the arbitration and by the express agreement of the parties were continued in force. It is perfectly clear that the employees did not work on the kind of straight-time assignment fixed by the board of arbitration; that is, the 8-16 hour assignments on 6 successive days.

Rule 8 is relied upon as a basis of a charge for overtime. Rule 8 was not changed by the board of • arbitrators. The only question submitted to them with reference to that rule was whether or not it should be amended by giving SO per cent, additional for overtime. The board denied this claim of the employees, and that denial took the form of the approval of rule 8 as it then stood. Rule 8 as originally adopted by the parties did not recognize any overtime in.a 12-24 hour assignment. Under that rule a 12-24 hour assignment included no overtime except that in addition to the 12 hours.

The assumption of the appellants is that, by the amendment of rule 6, rule 8 has a new and altogether different significance. This, however, violates the fundamental rule of construction; namely, that the provisions of the contract shall be construed as of the time of its adoption. In my judgment, there was no overtime within the meaning of rule 8 under a 12-24 hour assignment. The fact that rule 6 was changed did not make overtime where none theretofore existed. The appellants contend that, if this is a' true construction of the situation, they were not entitled to the additional pay that the employers have already given in compliance with the award that having worked the straight time assignment of 12-24 hours, and, having received the full- monthly wage; they are not entitled to any additional’ payment unless they are entitled to that payment in the form of overtime. 6 It is true that the employers might have taken this position, but the answer to it is plain. Some consideration must be given to the express agreement that the hours of labor should have retroactive effect. Such an agreement could have retroactive effect only in the adjustment of pay.

The men who worked 12-hour shifts worked 8 hours more per week than the men who worked 8-hour shifts. Clearly, it was intended that they should be paid for this additional time from and after the date fixed for enforcing the new rule concerning hours of labor (rule 6). If there were no provision in the contract controlling the question, it would be a fair basis to give the 12-hour men the same pay per hour as the 8-hour men had received per hour for the additional hours of service. This was done. While the employers contend that this was a fair interpretation of the award, they base their estimates not alone upon the contention of a fair result, but also upon .the contention that the contract expressly provided for just such a condition if rightly construed in connection with the award. The rule they rely upon is that set out in rule 2 for broken assignments. That rule was originally adopted in thé light of the agreement for two straight assignments, 8-16 and 12-24 hour watches (rule 6), and full-time service of either type of watch would not be a broken assignment. Thus neither rule 2 nor rule 8, *780 if construed strictly with reference to the original purpose of the contract of 1925, would be applicable to the situation in hand. Reading the contract as an entirety as reformed by the arbitration proceedings, thus omitting the provision of rule 6 permitting 12-24 hour assignments, it is clear that the employees did not serve a straight-time assignment within the meaning of that term as used in the contract as modified, for the reason that théy did not serve 6 consecutive days, but that period was broken by 24-hour periods when no labor was performed. The contract as amended recognized only two sorts of assignments, straight time and broken assignments.

With reference to broken assignments, it provides that the employees shall receive full compensation for all the time served based upon the monthly wage. We must either adopt this provision of the contract as applicable to the rights of the parties or hold that there was no agreement between the parties as to the wages which should be paid under the peculiar conditions that arose during the pendency of the arbitration proceedings as to the 12-24 hour shift, because under rules 6 and 8 the monthly wage applied to a straight-time assignment, where the amount of labor performed was 8 hours per day for 6 successive days. The monthly wage was not applicable to any lesser time except by application of the wage as agreed upon for broken assignments. In view’ of the fact that the parties had a written agreement which they believed covered the whole subject of their employment and wages, and which by their subsequent conduct they recognized as controlling as to their wages, and in view of the fact that this case is brought upon the theory that the contract expressly regulated the wages, and for an amount claimed to be due under the contract, we agree with the parties that we must find the appropriate wage scale in the contract. The employers find that agreement in the provision in regard to the payment for broken assignments. It seems to me that this is a reasonable construction of the contract. The appellants admit that they do not bring themselves within the express terms of rules 6 and 8, but they attribute this failure to the wrongful conduct of the employers. This, I think, is a false quantity in the case.' The employees worked, and it must be assumed that they worked voluntarily under the terms of the agreement. They are entitled to the pay provided in that agreement, and the only difficulty is in determining, under the complicated situation which has resulted by reason of the delays involved in the litigation, what the proper interpretation of the agreement may be.

Another consideration which in my judgment bears strongly upon the question involved is the fact that the arbitrators were not empowered by the agreement to consider the question of overtime in any way except to determine whether or not time and a half should be allowed for overtime. The board was not empowered by the parties to define overtime or in any way modify the definition of overtime, and, if the award (as to rule 9) be construed to make the last 4 hours of a 12-hour day overtime, it extends the award beyond the limitations of the agreement under which the award was made. This consideration merely leads to the conclusion, which is an ordinary rule of construction applicable to statutes, that those portions of the statutes re-enacted without change are deemed to speak, not from the time of re-enactment, but from the time of the original adoption. 36 Cyc. 1165, § 10. 7

The law fixes the penalty for such delay in the form of interest which I agree with my associates would be applicable to any unpaid amounts due under the contract. They were liquidated.

I agree with my associates that there was no accord and satisfaction, for the reason that there was no clearly defined controversy prior to the payment of the supplemental amounts by the carrier. However, if there had been an accord, that is, an agreement to settle such a controversy, the payment by way of satisfaction of the accord would be upon a sufficient consideration. Accord and Satisfaction, 1 C.J. p. 131, § 7; p. 132, § 8; 1 C.J.S. p. 462, § 1; p. 466, § 2.

I think the judgment should be affirmed.

The final judgment on the arbitration award states:

It appearing further that on May 19, 1928, the parties hereto entered into a stipulation which was filed herein on May 22, 1928. reading in part as follows:

Of this contract the appellants state in their brief:

Appellants state their proposition in the brief as follows:

Rates of pay.

Rule 2. Passenger and car ferries and tugs towing car floats:

Note: Employes working broken assignments will be paid in the following manner:

(a) On 8 and 16 watches, allow for number of days worked on basis of 12 times the monthly salary, divided by 313.

(b) On 12 and 24 watches, allow one and one-half days for each watch worked, on basis of 12 times the monthly salary divided by 365.

(c) On 12 and 24 watches, with one *778 watch off per month, allow one and one-half days for each watch worked, on basis of 12 times the monthly salary, divided by 347.

Above applies to employes, whose monthly assignment is broken as well as to relief employes and those in extra service.

The agreement to arbitrate contains the following clause:

Appellants state the matter thus in their brief:

The decision on appeal, however, does not indicate that the award as to rule 6 was attacked on appeal. Atchison, T. & S. F. R. Co. v. Ferryboatmen’s Union (C.C.A.) 28 F.(2d) 26 .

Appellants’ reply brief states:

“The original provisions appearing in the amended act are to be regarded as having been the law since they were first enacted and as stUl speaking from that time.”