A person who was appointed a midshipman in the navy in
September, 1867, and an ensign in July, 1872, and as to whom the
lowest grade having graduated pay held by him since last entering
the service was, under the Act of July 15, 1870, c. 295, 16 Stat.
330, § 3, that of ensign, is entitled to be credited, under the Act
of March 3, 1883, c. 97, 22 Stat. 473, with the time he so served
as a midshipman, on the ground that service as a midshipman at the
Naval Academy was service as an officer in the navy.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an appeal by the United States from a judgment of the
Court of Claims awarding to the claimant $836.71 on the following
facts:
Page 125 U. S. 647
On the 30th of September, 1867, the claimant was appointed a
midshipman in the navy by a form of appointment which stated that
he was "appointed to the grade of midshipman in the United States
Navy." By § 12 of the Act of July 15, 1870, c. 295, 16 Stat. 334,
it was provided that "the students in the Naval Academy shall
hereafter be styled cadet midshipmen," and that
"when cadet midshipmen shall have passed successfully the
graduating examination at said academy, they shall receive
appointments as midshipmen, ranking according to merit, and may be
promoted to the grade of ensign as vacancies in the number allowed
by law in that grade may occur."
After the passage of that act, the form of appointment was
changed by striking out the words "appointed to the grade of
midshipman" and inserting the words "appointed a cadet midshipman,"
but no appointment in the amended form was issued to the claimant.
After completing his academic course at Annapolis, the claimant
was, on the 14th of July, 1872, promoted to the grade of ensign; on
the 6th of December, 1876, to that of master; and, on the 10th of
January, 1884, to that of lieutenant, in which grade he was serving
when his petition was filed.
By the Act of March 3, 1883, c. 97, 22 Stat. 473, it was
provided as follows:
"And 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."
The claimant alleged in his petition that the lowest grade
having graduated pay held by him since last entering the service
was, under the Act of July 15, 1870, c. 295, 16 Stat. 330, § 3, now
§ 1556 of the Revised Statutes, that of ensign, and that he was,
under the act of 1883, entitled to have credit given to him upon
his grade of ensign for all of his service prior to the date of his
commission as ensign, namely, 4 years, 9 months, and 14 days, from
September 30, 1867, to July 14, 1872, which included all of the
time of his service as
Page 125 U. S. 648
midshipman. The question is as to whether he is entitled to the
difference of pay resulting from such credit. The Court of Claims
decided in his favor, awarding to him for that pay the sum of
$836.71.
The single question involved is whether the claimant, while he
was a midshipman, was serving as an officer or enlisted man in the
navy within the meaning of the act of 1883. The contention on the
part of the United States is that the claimant, while a student at
the Naval Academy, did not, in the sense of the act of 1883, serve
either as an officer or an enlisted man, and that, in that view, it
is immaterial whether, as a student, he is or is not to be regarded
as an officer of the navy. It is denied by the United States that
the entry of a pupil into the academy is his entry into the naval
service, and that the period of his pupilage is actual service
within the meaning of the act of 1883, and it is argued that he
does not enter into actual service until he is appointed either in
the line of the navy, the marine corps, or the engineer corps; that
as a student he does not serve, but is preparing to serve; that he
does not render service to the government, but is receiving favors
from it; that he can only commence service after his graduation,
such service depending upon his graduating merit, and that the
compensation of $500 a year given to him is not a payment for
service rendered, but is a gratuity and an allowance made to him
for his support in his preparation for service to be rendered.
When the claimant was appointed a midshipman in the navy on the
30th of September, 1867, the Act of July 16, 1862, c. 183, 12 Stat.
583, was in force. The first section of that act divides the active
list of line officers of the navy into nine grades, the first of
which is "rear-admirals," the eighth of which is "ensigns," and the
ninth of which is "midshipmen." The eleventh section of that act
provides that the students at the Naval Academy shall be styled
midshipmen until their final graduating examination, when, if
successful, they shall be commissioned ensigns, ranking according
to merit. Thus, § 1 of that act creates the grade of midshipman as
one of the nine grades of the active list of line officers of the
navy, and § 11 declares that the students at the Naval Academy
Page 125 U. S. 649
shall be styled midshipmen. If these statutory provisions were
not varied as respects the claimant prior to July 14, 1872, when he
was promoted to the grade of ensign, he was all the time an officer
in the line of the navy, and serving as such officer.
Section 12 of the Act of July 15, 187, c. 295, 16 Stat. 334,
provides that the "Students in the Naval Academy shall hereafter be
styled cadet midshipmen," and that, when they
"shall have passed successfully the graduating examination at
said academy, they shall receive appointments as midshipmen,
ranking according to merit, and may be promoted to the grade of
ensign as vacancies in the number allowed by law in that grade may
occur."
The provisions of that section do not seem to have been applied
to the case of the claimant. He did not thereafter receive an
appointment as cadet midshipman, nor does he appear to have
received an appointment as midshipman after he passed successfully
the graduating examination at the academy, but he was promoted to
the grade of ensign after he had completed his academic course at
Annapolis.
It is very questionable whether the twelfth section of the act
of 1870 applies to persons who had been theretofore appointed
midshipmen. It would rather seem to be limited in its provisions to
persons thereafter to be appointed to the distinct grade of cadet
midshipmen, and therefore not to include the case of the claimant.
But even if § 12 of the act of 1870 applies so far to those who
were then students in the Naval Academy that they were thereafter
to be styled cadet midshipmen, yet they were still to discharge the
same duties as before, and be subject to the same naval discipline
and control as before, and to receive the same pay as before. We
see nothing in the act of 1870 to exclude the claimant from the
position which he occupied prior to the passage of that act as a
member of a grade in the active list of line officers of the navy
so far as respected his service at the Naval Academy after the date
of the passage of that act, whether he was thereafter to be styled
a cadet midshipman or to continue to be styled a midshipman.
Page 125 U. S. 650
No legislation which took place after the 14th of July, 1872,
can affect the question arising under the act of 1883, as to his
service as an officer in the navy prior to the 14th of July, 1872.
Section 15 of the act of 1862 provided that the "annual pay of the
several ranks and grades of officers of the navy on the active
list," thereinafter named, comprehending the nine grades mentioned
in the first section of the same act, should be as thereinafter
specified in the fifteenth section, and the last provision was
this: "Midshipmen shall receive five hundred dollars."
It is impossible not to conclude that the claimant continued to
be, after the passage of the act of 1870, as he was prior to its
passage, an officer of the navy on the active list and serving as
such an officer by virtue of his having been appointed a midshipman
and continuing to be a student in the Naval Academy, even though he
might have been properly styled, after the passage of the act of
1870, a cadet midshipman.
The judgment of the Court of Claims is affirmed.