The percentage allowed to officers of the Navy under General
Order No. 75 of May 23, 1866, in lieu of all allowances except for
mileage or traveling expenses, is to be calculated on the amount
statedly received by the officer as statutory pay at the time the
order was in force, and is not to be increased by the additional
compensation allowed by the Act of March 3, 1883, 22 Stat. 473.
United States v. Philbrick, 120 U. S.
52, explained.
Appeal from the Court of Claims. The following were the findings
of fact.
This case having been heard by the Court of Claims, the court,
upon the evidence, finds the facts to be as follows:
First. Robert W. Allen is an officer of the Navy, to-wit, a
paymaster thereof, and he has served as such since the 1st day of
February, 1868.
Second. In the adjustment of his claim for the benefits of the
Act of March 3, 1883, the accounting officers of the Treasury
deducted from the settlement made in his favor the sum of
$1,112.75, being the amount paid him, under General Order No. 75,
issued by the Secretary of the Navy, May 23, 1866.
Third. Said accounting officers refused in the settlement of
Page 123 U. S. 346
said claim to allow claimant the further sum of $206.04, which
said amount would have accrued to him if he had been credited at
that time with his service prior to the date of his commission as
paymaster.
Fourth. The following is General Order No. 75, referred to in
Finding II:
"
[General Order No. 75]"
"NAVY DEPARTMENT, May 23, 1866"
"Congress having, in view of the call for increased compensation
for officers of the Navy, repealed the law which prohibited any
allowance to them 'for rent of quarters or to pay rent for
furniture, of for lights and fuel, &c.,' the Department, in
order to prevent a recurrence of the irregularities, abuses, and
arbitrary allowances which occasioned the prohibition, deems it
proper to establish a fixed rate of compensation in lieu of the
extra allowances which were prohibited by the law now repealed.
Accordingly, from and after the first day of June proximo, officers
who are not provided with quarters on shore stations will be
allowed a sum equal to 33 1/3 percent of their expenses under
orders, and those provided with such quarters, 20 percent of their
pay in lieu of said allowances."
"The Act of March 3, 1885, having increased the pay of
midshipmen and mates, the allowances hereby authorized will not be
extended to them."
"GIDEON WELLES"
"
Secretary of the Navy"
On these facts, the court gave judgment against the defendant
for $1,318.79, from which judgment this appeal was taken.
Page 123 U. S. 347
MR. JUSTICE HARLAN delivered the opinion of the Court.
The appellee is a paymaster in the Navy, having served in that
capacity since February 1, 1868. In the adjustment of his claim for
the benefits of what is known as the longevity Act of March 3,
1883, 22 Stat. 473, the accounting officers of the Treasury
deducted the sum of $1,112.75, the amount paid the claimant under
General Order No. 75, issued by the Secretary of the Navy under
date of May 23, 1866, in relation to allowances "for rent of
quarters, or to pay rent for furniture, or for lights and fuel,"
etc. The object of the order, as appears upon its face, was to
establish a fixed rate of compensation in lieu of the extra
allowances prohibited by the Act of March 3, 1835, 4 Stat. 753,
which last act was repealed by that of April 17, 1866, 14 Stat. 33,
38. That order made an allowance to officers not provided with
quarters on shore stations of
"a sum equal to 33 1/3 percentum of their pay in lieu of all
allowances, except for mileage and traveling expenses under orders,
and those provided with such quarters, 20 percentum of their pay in
lieu of said allowances."
It also stated: "The Act of March 3, 1865, having increased the
pay of midshipmen and mates, the allowances hereby authorized will
not be extended to them."
The findings of fact further state that
"Said accounting officers refused, in the settlement of said
claim [under the act of 1883], to allow claimant the further sum of
$206.04, which said amount would have accrued to him if he had been
credited at that time, with his service prior to the date of his
commission as paymaster."
The court below, following the decision in
United States v.
Philbrick, 120 U. S. 52, which
sustained the validity of the said general order, held the
deduction of $1,112.75 to be unauthorized by law, and, without
considering the merits of the question made as to the item of
$206.04, adjudged -- upon the ground that, in its opinion, the
decision in
Philbrick's Case required it to be done --
that the appellee should also have been allowed the latter sum in
the settlement of his claim under the act of 1883.
It is possible that the findings in
Philbrick's Case,
although
Page 123 U. S. 348
very meager and obscure, involved the question now presented.
But no such point was suggested by counsel, and it was not
considered by this Court. The only question actually disputed in
that case was as to the validity of general order No. 75, and this
Court was led to believe that if that order was sustained as a
proper exercise of authority by the Secretary of the Navy, the
affirmance of the judgment below would follow as a matter of
course.
We are not at all certain from the pleadings and findings in the
present case what is the precise question raised in respect to the
item of $206.04. The Act of March 3, 1883, provides that
"All officers of the Navy shall be credited with the actual time
they may have served as officers or enlisted men in the regular or
volunteer Army or Navy, or both, and shall receive all the benefits
of such actual service, in all respects, in the same manner as if
all said service had been continuous and in the regular Navy in the
lowest grade having graduated pay held by such officer since last
entering the service,
provided that nothing in this clause
shall be so construed as to authorize any change in the dates of
commission or in the relative rank of such officers;
provided
further that nothing herein contained shall be so construed as
to give any additional pay to any such officer during the time of
his service in the volunteer Army or Navy."
22 Stat. 473, c. 97. The question which counsel for the appellee
contend is presented by the record is whether appellee is entitled,
in the settlement of his account under the act of 1883, "to the
longevity increment of his 33 1/3 percent of salary allowed in lieu
of fuel, quarters, etc., under Navy General Order No. 75, of May
23, 1866." It is perfectly clear, they argue, that if the act of
1883 had been in force in 1866, the salary of appellee would have
been larger than it actually was by reason of the credit for prior
service which the act of 1883 now directs to be given to them --
that is, their salaries being larger, the 33 1/3 percent allowance
would have been correspondingly larger, and they should now receive
the difference in that item.
We do not concur in this interpretation of the statute. The
allowances provided for in the general order of 1866 were
Page 123 U. S. 349
made pursuant to rules and regulations established for the
apportionment from time to time of sums appropriated in gross by
Congress for specific objects connected with the naval service.
They constituted no part of the pay proper of officers, and were
designed to meet certain expenses they would necessarily incur in
the discharge of their duties. The Secretary used their regular pay
simply as a basis upon which to calculate the percentage allowed
for commutation of quarters, etc. That percentage is to be
ascertained by reference to the amount statedly received by the
officer, as statutory pay at the time General Order No. 75 was in
force, and is not to be increased by the additional compensation
allowed by the act of 1883, as the result of giving him the
benefits of actual service, as if it "had been continuous and in
the regular Navy in the lowest grade having graduated pay held by
such officer since last entering the service."
These views lead to a reversal, with directions to enter
judgment in favor of the claimant, only for the sum of
$1,112.75.
