DAVID M. FULMER v. THE UNITED STATES.
[No. 16873.
Decided January 11, 1897.]
On the Proofs.
A second assistant engineer in the Navy becomes eligible for examination for promotion September 3, 1868. He is examined in April, 1874, and promoted to be passed assistant engineer to rank from December 8, 1872. April 26, 1884, he is placed on the retired list as a passed assistant engineer. In computing the amount due him under the Longevity Act, 1883, his pay p.eriod is calculated from September 3,1868, and he receives, under Revised Statutes (§ 1556), 75 per cent of the highest pay of his grade and rank at the time of his retirement. He sues for additional pay under the act 3d March, 1885.
I. The Act 3d March, 1885 (23 Stat. L., 436), in regard to naval pay is prospective. It gives future pay for future services at certain rates, but does not right wrongs or equalize pay, and leaves the question open whether a retired officer’s pay is to vary with the p'ay of the active list or to remain fixed by the law determining it at the time of retirement.
II. The Act 3d March, 188% (22 Stat. L., 286), providing that “ the rank ' and pay of officers on the retired list shall he the same that they are ivhen such officers shall he retired” is not repealed by the Act 3d March, 1885 (23 Stat. L., 436), and renders the pay of retired officers fixed and certain.
The Reporters’ statement of the case:
The following are the facts in the case as found by the court:
I. The claimant was appointed second assistant engineer in the Navy on April 21, 1863. Under the regulations of the Navy Department he became eligible for examination for promotion. to the grade of first assistant engineer on September 3,1868, having completed three years’ service at sea on the *113preceding day. He was not, however, examined for promotion until April, 1874. In February, 1874, be was ordered to report for examination, and after such examination was reported as qualified for promotion, and be was so promoted to be passed assistant engineer to rank from December 8, 1872. On tbe 26th April, 1884, tbe claimant was retired from active service as a passed assistant engineer and placed upon tbe retired list.
II. Tbe claimant was paid tbe salary attached to tbe office of passed assistant engineer from ¡September 3,1868, tbe date at which be originally became eligible to promotion, to April 26,1884, the date of bis retirement. In computing tbe amount due him under tbe Longevity Pay Act of1883 (22 Stat. L., p. 473), September 3,1868, was accepted by the accounting officers of tbe Treasury as tbe date from which bis pay periods as a passed assistant engineer should be calculated. He accordingly was allowed and has received under Eevised Statutes, section 1566, 75 per cent of $2,200, tbe sea pay of a passed assistant engineer, “after five years from” tbe date of his appointment, that being the highest pay of bis grade and rank at the time of bis retirement. He has not received or been allowed any additional pay under of by virtue of tbe Act 3d March, 1885 (23 Stat. L., p.-436).
On tbe foregoing findings of fact tbe court decides as a conclusion of law:
Tbe claimant is not entitled to additional pay under or by reason of tbe act 3d March, 1885, and bis petition should be dismissed.
Mr. John Pawl Jones and Mr. P. P. Leicees for tbe claimant.
EowelVs Case (25 C. Cls. E,, 288), in so far as Eevised Statutes, section 1562 applies, is identical with that of claimant. Both were officers of tbe Navy, passed assistant engineers; both as assistant engineers were entitled to examinations for promotion, which were deferred from no fault of theirs; in neither case does tbe Commission confer tbe rank back to tbe time when both were entitled to take rank, to wit, tbe time when they were entitled to be examined for promotion. This court has decided, under the provisions of tbe act of 3d of March, 1885, Howell was entitled to have credit in tbe rank of passed assistant engineer “from tbe time tbe law entitles him to do so, and not necessarily from tbe time be was actually *114commissioned.” The same rule would of necessity apply to claimant, and fixes the time when he was entitled to take rank as passed assistant engineer as the 3d day of September, 1868.
That the credit for service is retroactive was decided in Sowell’s Case (supra), having direct reference to said act of 1885, and is also in accord with the decisions in Sawldn’s Case (19 C. Cls. B., 661), and Bradbury’s Case (20 C. Gis. B., 187), construing the Longevity Acts of 1882 and, 1888 (22 Stat. L., 286 and 473), the principles of which have been recognized by the Supreme Court, this court, and the Departments.
The act of 1885 is amendatory to section 1556 Bevised Statutes, relative to the pay of passed assistant engineers, and necessarily applies to section 1588 Bevised Statutes, which fixes the pay of retired officers. It is, however, in no respect a repeal of any of the provisions of such sections; it simply gives additional credit for service rendered; it neither adds to nor diminishes the service; there is no promotion; the rank and grade remain the same; it only gives additional credit to all alike for services actually rendered; the relative pay remains the same — that is to say, 75 or 50 per cent, as the case may be.
The act of 1885 gives an additional credit for active service rendered prior to the date of its passage, which is as legally and equitably applicable to the retired officer as to the one in active service.
Under this construction of the act of 1885, which does not appear to be controverted, claimant has asked to be credited with fifteen years seven months and twenty-three days of active service, from the time he took rank as passed assistant engineer to the date of retirement (under the decision in SoioelVs Case, supra). This placed him, at the time of retirement, in the fourth lustrum of pay, and entitles him to $2,025 per annum, instead of $1,650, which he is at present receiving.
The general application of the act to the case at bar is not controverted, but the additional payment is refused upon the ground that claimant is not within its provisions, for the reason that he was on the retired list at the time of its passage, and that under the Act of March 3,1882 (22 Stat. L., 286), the promotion of or increased pay to retired officers is prohibited. The clause in the act referred to is as follows:
“Hereafter there shall be no promotion or increase of pay in the retired list of the Navy, but the rank and pay of officers *115on the retired list shall be the same that they are when such officers shall be retired.”
This act must be interpreted under the general rules of construction, viz, by the words of the act itself, by reference to other clauses in the same act, by conditions existing at the time of its passage, by its legislative history, and by decisions of the court on the same or analogous acts. It must be considered in connection with the contemporaneous clause relating to longevity pay contained in the same act, and the subsequent acts of 1883 and 1885, supra.
This act was a general appropriation act, but contained some important legislation touching upon the question of rank, precedence, and promotion. It was under this act the famous Cadet cases arose in this court. In certain grades (notably the Engineer Corps) promotion was limited and changed. In no single instance, however, was the initial pay of any grade, either line or staff, as fixed by sections 1556 and 1588 Devised Statutes, changed. So far as any changes were sought to be made, they related to the right to promotion, with one exception, to which reference will hereafter be made.
At that time the general policy of the Government was to limit promotion. It was a common saying that the Navy was “ top heavy,” and it was frequently the case that it was difficult to fill the lower assignments to duty because of the scarcity of officers of appropriate rank. This was the evil to be remedied, with regard to the active list, and not anything relating to pay.
Another evil had, however, grown up with relation to the retired list, viz, the custom of promotion from one grade to another, at the discretion of the Secretary. Such promotion, being merely an honorary designation, was probably not illegal, and although the laws in force at that time, as subsequently construed in Thornley’s Oase( 18 C. Cls. B., Ill and 113; U. S., 310), prohibited any increase of pay on the retired list. Congress thought wise to settle the question at least for the future; hence the prohibition above quoted. Indeed, when the act of 1882 was passed, the Supreme Court had already decided that retired army officers were entitled to increase of pay for service on the retired list (Tyler’s Case, 105 U. S., 244), and cases to enforce a similar construction of the naval laws were pending in this court. Congress, however, emphasized its disapproval *116of increase of pay for tbe navy for any length of service on the retired list by a positive prohibition as to the future, and the Supreme Court disavowed it as to the past. (Thornley’s Case, supra.)
It is apparent, therefore, that the legislative intent in this prohibitory clause was threefold; first, to prevent further promotions, of any kind whatsoever, on the retired list, and the consequent increased pay incident thereto; second, if the decision in- Tyler’s Case (supra) should be held to affect retired naval officers, to render it inapplicable as to them for the future; and third, in any event to prohibit increase of pay resulting from promotion upon the retired list from a lower to a higher office.
It was not the intention to change or limit the pay of a retired officer, or to deprive him of the full benefits and emoluments incident to the office he held at the time of retirement.
This is manifest from the fact that the same act, which, it is said, prohibits any increase of pay on the retired list, provided specifically for increased pay by giving credit for prior service. It is true that this object was not fully attained by the Act of 1882 (22 Stat. L., 286) owing to the imperfection of the language employed, but the intent was evident, and in fact in some cases the act was operative. With slight amendment the language used is identical with the Act of March 3, 1883 (22 Stat. L., 473), so often construed by this court, the Supreme Court, and the Departments. Whenever applicable that act was held to increase an officer's pay and to carry with it back pay. The accounting officers at first refused to allow credit under these acts to retired officers for their prior active service, exactly as they do in this case.
This question was raised in Bractbury’s Case (20 C. Cls. B., 187). Bradbury had served eight years in the Navy as a mate. Be was commissioned a master on the retired list of the Navy March 28, 1871, in accordance with the special Act of March 3, 1871 (-16 Stat. L., 601). He claimed credit for his prior service as mate under the provisions of the Act of March 3, 1883 (supra). The accounting officers rejected his claim, and he brought suit in this court. The only difference between that case and the one at bar is that Bradbury was retired simultaneously with his appointment or commission as master, never having served a day in that grade, and claimant was *117retired after many years of honorable service in bis grade. This court held that Bradbury must be credited with bis service as mate on bis retired commission of master, and gave him back pay to 1871, together with a future increase of pay of $150 per annum; and this notwithstanding the -provisions of the Act of August 5,1882 (supra), then in force. In the case at bar no back pay is involved; this claimant asks only the increased pay provided for his office from and since the passage of the act of 1885.
The purpose of the act of 1885 was to relieve, to some extent, passed assistant engineers from the burden of long-continued service without promotion or increase of pay, by giving credit for service actually rendered, to take effect from the passage of the act. Such actual service is to be computed “after the date from which they take rank.” The actual service rendered by a retired officer previous to retirement is beyond controversy as meritorious as that rendered by the officer on the active list at the time of the passage of the law. What superior claim for service has the officer retired on the 4th of March, 1885, over the officer retired on the 2d of March of that year?
To illustrate: A ranks as a passed, assistant engineer from March 2,1870, and is retired on March 4, 1885, after fifteen years and two days active service in that grade. B ranks as a passed assistant engineer from February 28, 1870, and is retired March 2,1885, after fifteen years and two days active service in that grade. According to the construction of the accounting officers, A receives $2,025 per annum and B receives only $1,650 per annum for identically the same length of service.
Again, suppose C ranks from March 3,1865, and is retired March 2, 1885, having served nineteen years three hundred and sixty-four days. He also would receive only $1,650 per annum, and A, having served only fifteen years and two days, would receive $2,025 per annum.
This is illustrative of the case at bar, where claimant has actually served seven months and twenty-one days longer than in the case of A above stated, and is entitled to $375 per annum less pay, provided the accounting officers are sustained.
So inequitable a construction of the statute, it is submitted, will not be entertained by any court if it can be avoided. *118The Supreme Court, this court, and the Departments have liberally construed longevity pay acts, crediting actual service. (Thornley, 18 C. Ols. B., 117; Young, 19 0. 01s. B., 115; Hendee, 124 U. S. B., 309.)
A difference of construction arising from the nature of the claim is exemplified in the cases of Mouat (124 U. S. B., 303) and Hendee (supra). Both were paymaster’s clerks; Mouat claimed mileage as an officer traveling on public business under Act of June 30, 1876 (19 Stat. L., 65), while Hendee claimed the benefit of the Longevity Pay Act of 1883 as an officer of the Navy. Both cases were decided in the Supreme Court, and opinions rendered by the same judge on the same day. ' Mouat was declared not to be an officer of the Navy within the meaning of the Constitution, while Hendee was declared to be an officer because he rendered service as an officer. And yet the act of 1883 limits the benefits of the act to “ officers of the Navy.” In the matter of payment of mileage a strict construction of the law was required, while on the question of longevity pay for actual service the liberal rule was adopted. The act of 1885 is .equally a longevity pay act with that of 1883, and the same rules of construction should be followed.
But it is submitted that under the most technical rules claimant is entitled to the credit for the service claimed. Unlike Hendee, there is no question as to his position as an officer of the Navy; unlike Bradbury, who received compensation in a rank in which he had never served on the active list, his claim is based on service actually performed by him while an officer on the active list in his present grade. He claims nothing for promotion since retirement, or any pay incident to promotion, nor does he claim credit for any service since retirement. He claims credit for the rank and length of service at the time of retirement.
That the rank of claimant as passed assistant engineer dates back to the 3d of September, 1868, is not only established by the decision of this court in HoioelVs Case (supra), but has been fully recognized by the Treasury Department. He has been paid as passed assistant engineer and received the benefit of the Longevity Pay Act of 1883 from that date.
*119Mr. George H. Gorman (witb whom was Mr. Assistant Attorney- General Dodge\for tbe defendants: .
Claimant was never commissioned as first assistant, nor was be examined for promotion to passed assistant until after tbe act of March 3,1871. Under that act tbe claimant could not be promoted until a vacancy existed in that grade. Sucb vacancy did not arise until December 8,1872, and it seems to me that it is only from that date that be can be credited for service as passed assistant. He can not be credited witb any service as first assistant, for be was never commissioned as sucb officer, and all bis service up to December 8,1872, was as second assistant only. This does not conflict witb tbe decision in Howell’s Case. That decision is complied witb by giving' claimant pay from 1872 (when tbe vacancy first occurred), although be was not examined until 1874. Tbe decision does not require that be shall receive tbe pay for an office that be has never at any time held any commission for.
Tbe obvious, and, it seems to me, tbe conclusive, answer to this claim is that tbe act of March 3,1885, refers only to tbe officers on tbe active list of tbe Navy, and has no reference whatever to those upon tbe retired list; and that inasmuch as tbe claimant was on the retired list at tbe date of tbe enactment, tbe benefit of its provisions do not extend to him.
Nott, Ch. J.,
delivered tbe opinion of tbe court:
Tbe claimant, a retired naval officer, has been paid at tbe rate of pay prescribed by law at tbe time of retirement. He has also received all of the pay to which be has since been entitled, unless bis pay as a retired officer has been increased by tbe Act 3d March, 1885 (23 Stat. L., p. 436). In. other words, if tbe act of 1885 bad never been passed there would be no case before tbe court.
That act. is in these words:
“Be it enacted, etc., That from and after tbe passage of this act, tbe passed assistant engineers of the Navy shall receive during the third five years after tbe date from which they take rank as passed assistants, when at sea, two thousand four hundred and fifty dollars; on shore duty, two thousand two hundred and fifty dollars; on leave or waiting orders, one thousand nine hundred and fifty dollars. During tbe fourth five years from such date, when at sea, two thousand seven hundred dollars; on shore duty, two thousand three hundred and fifty *120dollars; on leave or waiting orders, one thousand nine hundred and fifty dollars.
“And section fifteen, hundred and fifty-six of the Revised Statutes is hereby amended accordingly.”
When the claimant was retired in 1884 as passed assistant engineer he had completed his “fourth five years” of service; and if the act of 1885 had then been the law he would have been retired upon the rate of pay which is the basis of his present action. The first question, therefore, is whether the act was intended to be retroactive in the case of a retired officer, giving him something to which he was not entitled at the time when he left the active service.
The act of 1885 is prospective in terms — “that from and after the passage of this act the passed assistant engineers of the Navy shall receive,” etc. It does not refer to the retired list — that is, to officers already on the retired list when it became a law. There is nothing in it indicative of a purpose to right wrongs or equalize pay; nothing which will authorize a court to say that it was intended to act by relation to any previous event in an officer’s official life. All that it does is to give future pay for future services to certain engineers at certain rates. The court therefore can not say that it should operate retroactively and affect the claimant’s pay as of the time when he was placed upon the retired list.
The case then presents a broader question, whether the pay of naval officers on the retired list varies with the pay of officers on the active list — i. e., whether the pay of each retired officer remains irrevocably fixed at the rate which he was entitled to on the day when he was transferred to the retired list.
The law regulating the pay of retired officers in the Navy is the Revised Statutes, section 1588, which provides in such cases as this officer’s that it shall be “ equal to seventy-five per centum of the sea pay provided by this chapter for the grade or rank which they held, respectively, at the time of their retirement.” The language is somewhat ambiguous. The statute does not say that each officer shall receive 75 per cent of the sea pay which he was actually receiving or entitled to receive at the time of his retirement, but that he shall receive 75 per cent of the sea pay of the “ grade or rank ” which he then held. It is contended that this officer is entitled to three fourths, of the pay now *121attached by law (i. e., by the act of 1885) to the “ grade or rank” which he held at the time of his retirement. It is conceded that he would not be entitled to the pay of a higher grade or rank. It is admitted that the Department can not advance him on the retired list, and thereby increase his pay; but it is insisted that he is entitled to the benefit of whatever increase of pay Congress may attach to his grade or rank.
The act of 1885, as has been said, does not assume to change the law with regard to the pay of retired officers; it leaves the question open whether a retired officer’s pay is to vary with the pay of the active list or whether it is to remain fixed as determined by the law governing it at the moment of retirement.
The Act 3d March, 1882 (22 Stat. L., p. 280), seems to answer that question:
“Hereafter there shall be no promotion or increase of pay in the retired list of the Uavy, but the rank and pay of officers on the retired list shall be the same.that they are when such officers shall be retired.”
It appears to the court that this statute was intended to meet such questions as are presented by this case, and to render the pay of retired officers fixed and certain. The last clause of the statute of course can not bind the legislative power; and of course it will always be witbin the power of Congress to increase the pay of officers on the retired list, notwithstanding this clause of the statute. But that raises the question whether this act of 1885 has done so — whether it was within the legislative intent that it should do so; and that question we have already answered in the negative. The act of 3882 laid down a general rule applicable to all officers; the act of 1885 did not repeal it. in terms or declare its provisions to be an exception to the general rule of the previous statute, or prescribe anything which can not be construed in harmony with the then existing law. The two statutes are not in any of their provisions irreconcilable. Moreover, longevity pay is a consideration given for increased experience and as an inducement to experienced officers to remain in the service. (Young’s Case, 19 C. Cls. R., 145.) There can be no good reason for ingrafting an increase of longevity pay upon the retired list unless the terms of a statute clearly indicate that such was the legislative intent.
*122The counsel for the claimant has relied on the decision of this court in the case of Bradbury (20 C. Cls. R., 187). But that case rested not on this act of 1885, but upon two different and entirely distinct statutes. The first was a special enactment authorizing the President “ to appoint upon the retired list of the Navy, with the rank of master, Edward E. Bradbury, now a mate on the retired list.” The second was The Naval Appropriation Act, 3d March, 1883 (22 Stat. L., p. 473), directing that “all officers of the Navy shall be credited with the actual time they may have served as officers or enlisted men in the Begular or Yolunteer Army or Navy, or both.” The former act changed the officer’s position on the retired list and in effect placed him there anew. The latter act declared that all officers should receive “all the benefits of such actual service” in either the Army or Navy. Its purpose was to rectify an injustice which had been done to some naval officers and to place all officers of the Navy, in the matter of longevity pay, upon the same plane of actual service. Before the decision in Bradbury it had been held that this statute was retroactive, and that the actual service which it designated should be credited to an officer as of the time when he would have been entitled to have received the credit if the act had then been in force. (Hawkin’s Case, 19 C. Cls. R., 661.) It necessarily followed in the Bradbury Case (inasmuch as the officer had not been credited with his former service when he should have been credited with it) that he had not been allowed at the time of his retirement (or appointment as master upon the retired list) three-fourths of the pay to which he was then entitled. In this case the retroactive element is wanting in the act of 1885. The claimant was allowed when he was retired all that he was entitled to; no subsequent statute has specifically changed. the rate of his retired pay; and the question is simply whether the Bevised Statutes intended that his retired pay should vary with subsequent changes in the pay of his grade or rank, or remain fixed as the law existing at the time of his retirement fixed it. The answer to that question, as we have before said, is to be found in the act of 1882.
The judgment of the court is that the petition be dismissed.