The plaintiff was a commander in the navy of the United States,
with the following record of entry and promotion: in the volunteer
service, acting master's mate, May 7, 1861; acting ensign, November
27, 1862; acting master, August 11, 1864: in the regular service,
master, March 12, 1868; lieutenant, December 18, 1868;
lieutenant-commander, July 3, 1870; commander, March 6, 1887. He
had never received any benefit of longevity pay under that clause
in the Act of March 3, 1883, 22 Stat. 473, c. 97, providing
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
Page 138 U. S. 294
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."
Held that, as he was a lieutenant during some days
succeeding June 30, 1870, when the Act of July 15 took effect, the
lowest grade he held having graduated pay was that of
lieutenant.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This is an action to recover longevity pay under the clause of
the Act of March 3, 1883, providing 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 plaintiff is a commander in the navy of the United States,
with the following record of entry and promotion: in the volunteer
service, acting master's mate, May 7, 1861; acting ensign, November
27, 1862; acting master, August 11, 1864. In the regular service,
master, March 12, 1868; lieutenant, December 18, 1868; lieutenant
commander, July 3, 1870; commander, march 6, 1887. He has never
received any benefit of longevity pay under the Act of March 3,
1883. The court below held that his prior service should be
credited on
Page 138 U. S. 295
his grade of lieutenant commander, not on that of lieutenant,
and gave judgment in his favor for $796.08. If such prior service
had been credited on his grade of lieutenant, the judgment would
have been for only $4.17.
By section 3 of the Act of July 15, 1870, making appropriations
"for the naval service for the year ending June 30, 1871, and for
other purposes," 16 Stat. 321, 330, 332, c. 295, it was
provided
"That from and after the thirtieth day of June, eighteen hundred
and seventy, the annual pay of the officers of the navy on the
active list shall be as follows: . . . lieutenant commanders,
during the first four years after date of commission, when at sea,
two thousand eight hundred dollars; on shore duty, two thousand
four hundred dollars; on leave or waiting orders, two thousand
dollars; after four years from such date, when at sea, three
thousand dollars; on shore duty, two thousand six hundred dollars;
on leave or waiting orders, two thousand two hundred dollars.
Lieutenants, during the first five years after date of commission,
when at sea, two thousand four hundred dollars; on shore duty, two
thousand dollars; on leave or waiting orders, one thousand six
hundred dollars; after five years from such date, when at sea, two
thousand six hundred dollars; on shore duty, two thousand two
hundred dollars; on leave or waiting orders, one thousand eight
hundred dollars."
And section 4 provided
"That the pay prescribed in the next preceding section shall be
the full and entire compensation of the several officers therein
named, and no additional allowance shall be made in favor of any of
said officers on any account whatever, and all laws or parts of
laws authorizing any such allowance shall, on the first day of
July, eighteen hundred and seventy, be repealed; . . . and from and
after the thirtieth day of June, eighteen hundred and seventy, so
much of the fourth section of the act approved July fourteen,
eighteen hundred and sixty-two, 'making appropriations for the
naval service for the year ending June thirty, eighteen hundred and
sixty-three, and for other purposes,' as allows to persons in the
naval service five
Page 138 U. S. 296
cents per day in lieu of the spirit ration is hereby repealed,
and from and after that day, thirty cents shall in all cases be
deemed the commutation price of the navy ration."
By the same act, appropriations were made for the payment of
officers and seamen at the designated rates, and all acts or parts
of acts inconsistent with that act were thereby repealed.
Under the statute of July 16, 1862, 12 Stat. 583, 586, in force
up to June 30, 1870, the pay of lieutenants was not graduated, but
by the Act of July 15, 1870, their pay, and that of lieutenant
commanders and other officers therein mentioned, was graduated from
and after June 30, 1870. The lawful pay of lieutenants ceased to be
what it had been during the prior fiscal year and years preceding,
and became for the fiscal year commencing July 1, 1870, as
prescribed by the Act of July 15. Claimant accordingly received pay
for his services on July 1, 2, and 3, 1870, under the latter act,
which furnished the measure of his compensation. There was no other
statute and no other appropriation in accordance with which his pay
was regulated, disbursed, and received. Nearly thirteen years after
this, the act of 1883 was passed, and the extent to which the
claimant could avail himself of it depends upon what was the lowest
grade having graduated pay held by him since last entering the
service, and as he was a lieutenant during some days succeeding
June 30, 1870, when the Act of July 15th took effect, we are
constrained to hold that the lowest grade he held having graduated
pay was that of lieutenant. If the act had been passed ten days
before June 30, to take effect on that day, and claimant had become
lieutenant commander within the ten days, the lowest grade held by
him having graduated pay attached would have been that of
lieutenant commander, notwithstanding when the act was passed he
held a lower grade, and, though this act was passed after June 30,
yet, as Congress directed that it should take effect as of that
date, the result must be the same.
In
United States v. Rockwell, 120 U. S.
60, Rockwell reentered the service as master in March,
1868, and subsequently during that year became lieutenant, and
continued in such position until 1878. The government contended
that the
Page 138 U. S. 297
lowest grade having graduated pay held by him was that of
master, masters being entitled to graduated pay under the act of
1870, but it was held that this view was incorrect and that the act
of 1883 referred to the lowest grade having graduated pay held by
the officer after the act providing for graduated pay took effect.
Rockwell had ceased to be a master for nearly two years before the
act in respect to graduated pay was passed, and consequently that
act became operative as to him when he was holding the rank of
lieutenant. In this case, the only law under which claimant could
receive pay after June 30, 1870, was the Act of July 15, 1870, and,
as it took effect as of June 30, he was holding the grade of
lieutenant at that time, and that fact disposes of this
controversy.
It is suggested that the Act of July 15, 1870, operated in
reduction of earned compensation for services rendered during the
15 days succeeding June 30, and to that extent was invalid, upon
the ground that, while the pay of a lieutenant as fixed by the act
of 1862 was in terms increased by the act of 1870, yet part of his
prior compensation given in lieu of allowances was cut off, and
that his total compensation by reason of the equivalent for
allowances was larger during the fiscal years prior to June 30,
1870, than that fixed by the Act of July 15. But the payments
referred to were made in accordance with an order of the Secretary
of the Navy of May 23, 1866, which established a fixed rate of
compensation in lieu of prior extra allowances at a sum equal to
thirty-three and one-third percent of the pay, and the validity and
force of the order depended on the appropriation by Congress of
moneys for specified objects connected with the naval service, to
the distribution of which the order related. It was upon this view
that the opinion of the Court, delivered by MR. JUSTICE HARLAN,
proceeded in
United States v. Philbrick, 120 U. S.
52,
120 U. S. 58,
where the
"power of the Secretary to establish rules and regulations for
the apportionment of the sums set apart by Congress in gross for
such objects as those involved in the allowances here in
dispute"
was sustained. The order was not a contract with the naval
officers by the department, and independent of congressional
action.
Page 138 U. S. 298
The appropriation by Congress in this instance was by the Act of
July 15, 1870, and that act in terms prohibited any extra
allowances from and after June 30, so that the act increased the
actual pay, and did not so disturb any vested rights of the
claimant as to give force to his position in this regard, if it
would in any aspect have affected the conclusion reached.
The judgment of the Court of Claims is reversed, and the
cause remanded, with directions to enter judgment for $4.17 in
favor of claimant.