In case of ambiguity in a statute, contemporaneous and uniform
executive construction is regarded as decisive.
The provisions of the Act of August 3, 1861, ch. 42, § 23, 12
Stat. 291, relating to the retirement of officers of the navy,
having been uniformly held, by the officers charged with their
execution, to be applicable to warrant officers, are now held to be
so applicable.
The Act of July 15, 1870, 16 Stat. 321, did not abolish the
furlough pay list, and an order after the passage of that act
retiring a naval officer on furlough pay was made in pursuance of
law.
The administrator of a retired naval officer cannot, in order to
recover from the United States an increase in the compensation of
his intestate, take advantage of an alleged defect in the
proceedings by which he was retired, and which he acquiesced in
without objection during his lifetime.
§ 1588 Rev.Stat. does not apply to officers retired on furlough
pay.
Officers of the navy on the retired list are not entitled to
longevity pay.
James Brown, the intestate of the appellant, was a boatswain in
the United States Navy. The petition in this case was filed against
the United States by the administratrix of his estate in
Page 113 U. S. 569
the Court of Claims to recover a balance of pay which she
alleged was due to Brown at his death. The Court of Claims found
the following facts:
Brown, the decedent, was appointed a boatswain in the Navy of
the United States, January 4, 1862. On October 22, 1872, the Naval
Retiring Board, before which he had been ordered by the Secretary
of the Navy under the provisions of § 23 of the Act of August 3,
1861, 12 Stat. 291, reported that he was incapacitated from
performing the duties of his office, and that there was no evidence
that such incapacity was the result of any incident of the service.
He was accordingly, upon the day last mentioned, by order of the
President, retired on furlough pay. From October 22, 1872, to June
30, 1875, Brown received pay at the rate of $900 per annum, and
from July 1, 1875, to June 6, 1879, at the rate of $500 per annum.
On the day last named, he died.
The court further found that the Acts of August 3, 1861, 12
Stat. 290, and of December 21, 1861, 12 Stat. 329, were soon after
their enactment construed by the President and Navy Department to
include warrant officers, and under that construction it had been
the uniform practice of the President to place warrant officers on
the retired list, and large numbers of these officers had been so
retired. No protest or objection was made by Brown during his
lifetime, either to his retirement or rate of pay. The accounting
officers of the Treasury had uniformly held that longevity pay to
retired officers was not authorized by § 1593 of the Revised
Statutes.
From these findings of fact the Court of Claims deduced, as a
conclusion of law, that Brown was legally placed on the retired
list, and had received the full amount of pay allowed him by law,
and was not entitled to recover, and entered judgment dismissing
the petition. The appeal of the petitioner brings that judgment
under review.
MR. JUSTICE Woods delivered the opinion of the Court. He recited
the facts in the foregoing language, and continued:
Page 113 U. S. 570
It is not denied that up to July 1, 1875, Brown received all the
pay to which he was entitled.
The first contention of the appellant is that the placing of
Brown on the retired list was unauthorized by law, and that he was
therefore entitled to the full pay of a boatswain from July 1,
1875, up to the time of his death.
§ 23 of the Act of August 3, 1861, 12 Stat. 291, by authority of
which the President assumed to retire Brown, reads as follows:
"That whenever any officer of the navy, on being ordered to
perform the duties appropriate to his commission, shall report
himself unable to comply with such order, or whenever, in the
judgment of the President of the United States, an officer of the
navy shall be in any way incapacitated from performing the duties
of his office, the President at his discretion, shall direct the
Secretary of the Navy to refer the case of such officer to a board.
. . . The board, whenever it finds an officer incapacitated for
active service, will report whether, in its judgment, the
incapacity result from long and faithful service, from wounds or
injuries received in the line of duty, from sickness or exposure
therein, or from any other incident of the service; if so, and the
President approve of such judgment, the disabled officer shall
thereupon be placed upon the list of retired officers according to
the provisions of this act. But if such disability or incompetency
proceed from other causes, and the President concur in opinion with
the board, the officer may be retired upon furlough pay, or he
shall be wholly retired from the service with one year's pay at the
discretion of the President, and in this last case his name shall
be wholly omitted from the navy register. . . ."
The appellant asserts that this section applies only to
commissioned officers, and not to warrant officers, to which latter
class Brown belonged.
It must be conceded that were the question a new one, the true
construction of the section would be open to doubt. But the
findings of the Court of Claims show that soon after the enactment
of the act, the President and the Navy Department construed the
section to include warrant as well as commissioned officers,
Page 113 U. S. 571
and that they have since that time uniformly adhered to that
construction, and that under its provisions, large numbers of
warrant officers have been retired. This contemporaneous and
uniform interpretation is entitled to weight in the construction of
the law, and in a case of doubt ought to turn the scale.
In
Edwards v.
Darby, 12 Wheat. 206, it was said by this Court
that
"In the construction of a doubtful and ambiguous law, the
contemporaneous construction of those who were called upon to act
under the law and were appointed to carry its provisions into
effect is entitled to great respect."
This case is cited upon this point with approval in
Atkins v. Disintegrating
Co., 18 Wall. 301;
Smythe
v. Fiske, 23 Wall. 382;
United States v.
Pugh, 99 U. S. 265, and
in
United States v. Moore, 95 U.
S. 763. In the case last mentioned, the Court said
that
"The construction given to a statute by those charged with the
duty of executing it ought not to be overruled without cogent
reasons. The officers concerned are usually able men and masters of
the subject. Not unfrequently they are the draughtsmen of the laws
they are afterwards called upon to interpret."
And in the case of
United States v. Pugh, the Court
said: "While, therefore, the question," the construction of the
Abandoned and Captured Property Act,
"is one by no means free from doubt, we are not inclined to
interfere at this late day with a rule which has been acted on by
the Court of Claims and the executive for so long a time."
See also United States v. State Bank of
North Carolina, 6 Pet. 29;
United
States v. Alexander, 12 Wall. 177;
Peabody v.
Stark, 16 Wall. 240;
Hahn v. United
States, 107 U. S. 402.
These authorities justify us in adhering to the construction of
the law under consideration, adopted by the executive department of
the government, and are conclusive against the contention of
appellant, that § 23 of the Act of August 3, 1861, did not apply to
warrant officers.
The appellant next contends that the retirement of Brown was
illegal because, at the time of his retirement, no officer could be
placed on the retired list for disability not originating in the
line of duty. The theory of this contention seems to be this: the
statute required that all officers retired for disability
Page 113 U. S. 572
or incompetency not resulting from long and faithful service or
wounds or injuries received in the line of duty or from sickness or
exposure therein should be retired on furlough pay, and, as §§ 3,
5, and 19 of the Naval Appropriation Act of July 15, 1870, 16 Stat.
321, abolished the furlough pay list, the President was only
authorized to retire Brown wholly from the service with one year's
pay. We think it is clear that the sections of the statute referred
to were not intended to abolish the furlough pay list. So far as
they refer to retired officers, they apply to the retired list, and
not the retired list on furlough pay. For thirty years, the
legislation of Congress has divided retired naval officers into two
classes. By § 2 of the Act of February 28, 1855, 10 Stat. 616, the
officers on the retired, or, as it was then designated, reserved
list were divided into those entitled to receive leave of absence
pay and those entitled to receive furlough pay. The distinction
between the two classes of retired officers has been preserved down
to the present time. Thus, in § 3 of the Act of January 16, 1857,
11 Stat. 154, it was provided that the President should be
authorized to transfer any officer from the furlough to the
reserved pay list. By § 23 of the Act of August 3, 1861, 12 Stat.
290, 291, by virtue of which Brown was retired, it was provided
that officers incapacitated for active service from long service,
wounds, etc., should be placed on the list of retired officers, but
those incapacitated from other causes should be retired upon
furlough pay. So, by § 2 of the Act approved July 28, 1866, 14
Stat. 345, it was provided that the rate of pay of officers of the
navy on the retired list and not on duty nor retired on furlough
pay, should be one-half the pay to which such officers would be
entitled if on duty at sea.
This legislation has been reproduced in the Revised Statutes,
where the distinction between officers on the retired list and
officers on the retired list on furlough pay is preserved. Thus, §§
1588 and 1592 prescribe one rate of pay for retired officers, and §
1593 a different rate for officers on the retired list on furlough
pay, and § 1594 authorizes the President, by and with the advice
and consent of the Senate, to transfer any officer of the navy on
the retired list from the furlough to the retired
Page 113 U. S. 573
pay list. It is plain, therefore, that section 5 of the Act of
July 15, 1870, relied on by appellant and which is the only one
which refers to the pay of retired officers, applies in both its
terms and meaning only to the pay of officers on the retired list,
and not to the compensation of officers retired on furlough pay, to
which class Brown belonged, and did not abolish the furlough pay
list. The order of the President retiring Brown on furlough pay was
therefore made strictly in accordance with the provisions of the
statute then and still in force.
It is next objected that the order of the President retiring
Brown was illegal and void because the retiring board, having
reported him incapacitated, did not find and report what was the
cause of his incapacity, but only that there was no evidence that
it was the result of any incident of the service. But as it is
incumbent on the officer whose case comes before a retiring board
to show, in order to secure a report which will entitle him to be
placed on the retired list rather than on the retired list on
furlough pay, that his incapacity was the result of some incident
of the service, the report of the board that there was no evidence
to support such a finding is to all intents and purposes a report
that the incapacity was not the result of an incident of the
service, and justifies an order retiring the officer on furlough
pay. But if there had been any irregularity or defect in the report
of the board, it was the duty of Brown to object to it without
unreasonable delay. After his acquiescence in the proceedings
during the remainder of his life, it does not lie with his
administratrix to object to them, even for a substantial defect,
much less for such an irregularity, if it be an irregularity, as is
set up in this case. Our opinion is therefore that the order of the
President retiring Brown was authorized by law, and was regular and
valid.
Appellant next insists that, conceding the retirement of Brown
to be valid, he did not receive, after July 1, 1875, the pay to
which he was entitled. It is contended first that he should have
been paid according to the provisions of § 5 of the Act of July 15,
1870, 16 Stat. 333, now forming the last clause in § 1588 of the
Revised Statutes. This enactment provides that officers on the
retired list shall receive one-half the sea pay
Page 113 U. S. 574
allowed to the grade or rank which they held at the date of
their retirement. But we have seen that Brown did not belong to the
general list of retired officers, but to a distinct class -- namely
officers retired on furlough pay. His case therefore fell under the
enactments embodied in § 1593 of the Revised Statutes, which fixed
his pay at one-half that to which he would have been entitled if on
leave of absence on the active list. This is the rate at which he
has been paid. It is next said that, conceding that his pay was
fixed by § 1593, he should, after his retirement, have received the
increase of pay allowed officers on the active list for length of
service by § 1556 of the Revised Statutes, page 267, commonly known
as longevity pay, which, after July 1, 1875, would have entitled
him to $600 per annum instead of the $500 which he actually
received. This last contention has been decided adversely to the
view of the appellant by this Court at the present term in the case
of
Thornley v. United States, ante, page
113 U. S. 310. We
are therefore of opinion that Brown was paid, in his lifetime, all
that he was entitled to receive under the laws then in force. The
judgment of the Court of Claims dismissing his petition was
therefore right, and is
Affirmed.