An appeal, docketed here January 7, 1888, from a judgment of the
Court of Claims which was entered February 4, 1884, is dismissed
for want of due prosecution.
Potts v. United States, ante, 125 U. S. 173,
affirmed and applied to the case.
Page 125 U. S. 177
Section 1594, Rev.Stat. authorizing the transfer of a retired
officer of the navy from the furlough to the retired pay list being
intended to afford relief from the consequences of the findings of
retiring boards, should be construed liberally, and being so
construed, it is held that the President has power under it, with
the advice and consent of the Senate, to make the transfer relate
back to a time when, in his judgment, it ought to have been
granted.
In an action in the Court of Claims by an officer to recover a
balance claimed to be due him on pay account, the United States can
set up as a counterclaim an alleged overpayment to him on that
account, and can have judgment for it if established.
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
Jabez Burchard, an assistant engineer in the navy, was examined
by a retiring board organized under § 1488 of the Revised Statutes
and the board reported that he was incapacitated from active
service, and "that his incapacity was not the result of an incident
of the service." The statutes regulating such a proceeding are
given in
Potts v. United States, ante, 125 U. S. 173,
just decided. The President approved the findings, and Burchard was
retired on furlough pay October 26, 1874. On the 1st of March,
1877, the Secretary of the Navy addressed a letter to the fourth
auditor of the Treasury stating that
"Upon a full review of all the facts in the case . . . the
department is of opinion that the causes which incapacitated him
[Burchard] for active duty were incident to the service, and that
he should have the higher rates of pay allowed to retired officers
by § 1588 of the Revised Statutes."
On the 1st of March, 1878, the President made the following
nomination:
"To the Senate of the United States:"
"In accordance with § 1594 of the Revised Statutes, I
nominate
Page 125 U. S. 178
Jabez Burchard assistant engineer, to be transferred from the
furlough to the retired pay list of the navy from the 20th of
October, 1874."
"R. B. HAYES"
On the 25th of March, 1878, the Senate advised and consented to
the appointment as follows:
"
Resolved, that the Senate advise and consent to the
appointment of assistant engineer Burchard to be transferred from
the furlough to the retired pay list from the 26th of October,
1874, agreeably to the nomination."
On the 1st of April, 1878, Burchard was notified of this
transfer.
From the 26th of October, 1874, until the 1st of April, 1878, he
has been paid 75 percent of the sea pay for the grade or rank which
he held at the time of retirement, being $1,275 a year. Since April
1, 1878, he has been paid $850 a year, under the second clause of §
1588 -- his half sea pay. He brought this suit on the 5th of
September, 1883 to recover the difference between one-half and
three-quarters of sea pay from April 1, 1878. The United States set
up by way of counterclaim that he had been overpaid $1,168.75 for
his salary from April 1, 1875, to March 31, 1878, and asked
judgment for that amount. The Court of Claims, on the 4th of
February, 1884, dismissed both the petition and counterclaim. From
that judgment both parties appealed. That of the United States was
docketed in this Court October 24, 1884, which was during the
return-term, but that of Burchard was not docketed until January 7,
1888, and he did nothing here in the meantime to make himself an
actor in that behalf. For that reason, his appeal is dismissed for
want of due prosecution, on the authority of
The S.S.
Osborne, 105 U. S. 447.
See also Hilton v. Dickinson, 108
U. S. 168;
The Tornado, 109 U.
S. 117.
We have, then, for consideration only the questions which arise
on the appeal of the United States. The suit was brought to recover
a balance claimed to be due for pay after March 31, 1878. The
counterclaim is for moneys alleged to have been
Page 125 U. S. 179
overpaid between October 26, 1874, and March 31, 1878. As the
petition of Burchard was dismissed because he had already been paid
in full for all he was entitled to after March 31, 1878, the appeal
of the United States brings up only the questions presented by the
counterclaim. These are first as to the amount which Burchard was
actually entitled to for his pay between October 26, 1874, and
April 1, 1878, after his transfer "from the furlough to the retired
pay list," and second as to the right of the United States to
recover back any amount he may have been paid over what he was
actually entitled to by law.
As to the first of these questions, it was settled in the case
of
Potts, ante, 125 U. S. 173,
that he was in no event entitled to more than half sea pay, and
that all he got over that was by a mistake of the accounting
officers. Whether he was entitled to more than half of leave of
absence pay before April 1, 1878, depends on the effect of the
action of the President, with the advice and consent of the Senate,
in antedating the transfer so as to make it relate back to October
26, 1874, when the nomination to the Senate was not actually made
until March 1, 1878.
What is now § 1594 of the Revised Statutes was originally
enacted as part of § 3 of the Act of January 16, 1857 (c. 12, 11
Stat. 134), "to amend an act of February 28, 1855 (c. 127, 10 Stat.
616), being
An act to promote the efficiency of the navy,'" and
it was evidently intended to enable the President, with the advice
and consent of the Senate, to relieve a deserving officer to a
limited extent from the consequences of the findings of retiring
boards. Under such circumstances, it should in our opinion be
liberally construed in favor of justice. This case may fairly be
taken for illustration. The law requires a record of the
proceedings and decision of the retiring board to be made and
transmitted to the Secretary of the Navy, and by him laid before
the President for his approval or disapproval, or orders in the
case. At first the findings in this case were approved and orders
made thereon, but afterwards the department became satisfied on
reexamination that the findings were wrong, and that the incapacity
was actually the result of causes incident to the service.
Neither
Page 125 U. S.
180
the department nor the President could then change the
findings, as they had already been approved, and were no longer
open to review. The action of the President was equivalent to the
judgment of an appropriate tribunal upon the facts as found. That
judgment, as a judgment, could not be disturbed, but under this
statement it was just within the power of the President, with the
advice and consent of the Senate, to relieve the officer to some
extent from its consequences by transferring him from furlough to
retired pay. There is no prohibition against antedating such a
transfer. The statute simply says that the President, by and with
the advice and consent of the Senate, may make it, and in our
opinion he may, with like advice and consent, determine whether it
shall operate only in the future or relate back to a time when in
his judgment it ought to have been granted. It follows that
Burchard, by this action of the President and Senate, became
entitled to half sea pay from October 26, 1874. He has thus been
overpaid only to the extent of one-fourth of sea pay from October
26, 1874, to March 31, 1878, or at the rate of $425 a
year.
It only remains to consider whether the amount which has thus
been paid, or as much thereof as is embraced in the counterclaim
case, can be recovered back in this action, and we are of the
opinion that it can. The action was brought by Burchard to recover
a balance claimed to be due on pay account from the date of his
retirement. He had been paid according to his present claim until
April 1, 1878, and consequently there was nothing to complain of
back of that date. But in reality the account had never been
closed, and was always open to adjustment. Overpayments made at one
time by mistake could be corrected and properly charged against
credits coming in afterwards. His pay was fixed by law, and the
disbursing officers of the department had no authority to allow him
any more. If they did, it was in violation of the law, and he has
no right to keep what he thus obtained. Whether the government can
in any case be precluded from reclaiming money which has been paid
by its disbursing and accounting officers under a mistake of law is
a question which it is not now necessary to decide, any more than
it was in
Page 125 U. S. 181
McElrath v. United States, 102 U.
S. 426,
102 U. S. 441,
when it was suggested. This is a case where the disbursing
officers, supposing that a retired officer of the navy was entitled
to more than it turns out the law allowed, have overpaid him.
Certainly, under such circumstances, the mistake may be corrected.
It follows that the judgment against the United States upon the
counterclaim must be reversed, and the cause remanded for further
proceedings not inconsistent with this opinion. It is consequently
so ordered.
Reversed.