Under the Act of March 3, 1583, c. 97, 22 Stat. 473, an officer
in the navy who resigns one office the day before his appointment
to a higher one, though in a different branch of the service, is
only entitled to longevity pay as of the lowest grade having
graduated pay held by him since he originally entered the
service.
United States v. Alger, 151 U.
S. 362, and
United States v. Stahl,
151 U. S. 366,
reaffirmed.
These were petitions for a rehearing of two cases decided
January 22, 1894, and reported in 151 U.S.
151 U. S. 362 and
151 U. S. 366.
In Alger's case, the petition said:
"In this case, the claimant was appointed cadet midshipman
September 22, 1876, graduated June 22, 1882, and promoted to
midshipman the same day, commissioned ensign June 26, 1884. He
resigned November 10, 1890, and on November 11, 1890, was appointed
professor of mathematics, to rank from November 1, 1890. The
claimant was given credit on his commission as ensign for his
service as cadet midshipman and midshipman, and was paid the pay of
an ensign after five years of service, from June 26, 1884, to the
date of his resignation, but claims that he has not been allowed
credit under the Act of March 3, 1883, in the lowest grade having
graduated pay since he entered the Navy as professor of
mathematics. The claimant sues for the pay of a professor of
mathematics in the third five years
Page 152 U. S. 385
from the date of appointment by reason of his prior service in
the Navy, to-wit from September 22, 1876, to November 10, 1890, by
virtue of the provisions of the Act of March 3, 1883, and the Court
of Claims gave him judgment for the amount claimed, but this court
has reversed this judgment as erroneous."
In Stahl's case, the petition set forth a resignation August 10,
1887, of the office of assistant engineer and the appointment of
the petitioner August 11, 1887, as assistant naval constructor.
Page 152 U. S. 396
MR. JUSTICE GRAY delivered the opinion of the Court.
These two cases were decided at the present term in favor of the
United States upon the ground that, under the Act of March 3, 1883,
c. 97, 22 Stat. 473, an officer of the navy who resigns one office
the day before his appointment to a higher one, though in a
different branch of the service, is only entitled to longevity pay
as of the lowest grade having graduated pay held by him since he
originally entered the service. 151 U.S.
151 U. S. 362,
151 U. S. 366.
The principal grounds of the petitions for rehearing, and the
only ones which require to be noticed, were not suggested in the
briefs upon which the cases were submitted for decision. Those
grounds are that by the settled practice of the Navy Department (as
shown by documents now laid before the court for the first time),
officers in one branch of the service are required to resign from
the navy before accepting an appointment in any other branch of the
service. The longevity pay of officers so transferred from one
branch of the service to another is computed upon the theory that
the new appointment is a new entry into the service, and the names
of such officers are placed, without regard to their previous rank
at the foot of the list of officers of the same grade in the new
corps.
As it now appears that the resignation of every officer under
such circumstances is absolutely required by the Navy Department,
it is evident that no case of the kind could be open to the
suggestion made, by way of hypothesis only, and not as applicable
to either of these claimants, in the former
Page 152 U. S. 397
opinion in
Alger's Case, that if such a formal
resignation were sent in for the purpose of eluding the statute and
claiming longevity pay on the higher scale, the attempt would be
unbecoming in the officer or his advisers.
But the habitual requirement of such a resignation by the Navy
Department as a preliminary to the new appointment puts beyond
doubt -- what was before in some degree a matter of inference from
the specific facts found -- that each resignation was tendered with
no intention of leaving the service, and confirms us in the
opinion, heretofore announced, that the actual service of each
claimant from the time he first entered the Navy was for a single
and continuous period, within the meaning of the longevity pay
act.
If the meaning of that act were doubtful, its practical
construction by the Navy Department would be entitled to great
weight; but, as the meaning of the statute, as applied to these
cases, appears to this Court to be perfectly clear, no practice
inconsistent with that meaning can have any effect.
Swift Co.
v. United States, 105 U. S. 691,
105 U. S. 695;
United States v. Graham, 110 U. S. 219;
United States v. Tanner, 147 U. S. 661.
This case does not present for judicial determination (if it
could be so presented in any form) the question whether the
practice of the Navy Department with regard to the rank and
precedence of such officers conforms to section 1485 of the Revised
Statutes, which directs that
"the officers of the staff corps of the navy shall take
precedence in their several corps and in their several grades, and
with officers of the line with whom they hold relative rank,
according to length of service in the Navy."
In the petitions for rehearing, illustrations are given of the
inequality of the operation of the longevity pay act, as construed
by this Court; but as that act, upon any possible construction,
distinguishes the case of continuous from that of interrupted
service, it is impossible that there should not be some cases of
apparent disproportion in the allowances for length of service. The
duty of the courts is to apply the general rule prescribed by
Congress. If injustice attends the application of the rule in
particular cases, Congress alone can
Page 152 U. S. 398
afford a remedy by changing the rule for the future, of granting
additional compensation for the past.
Petitions for rehearing denied.
MR. JUSTICE WHITE, not having been a member of the Court when
this case was argued, took no part in its decision.
