Under § 1444, Rev.Stat., and § 11 of the Navy Personnel Act of
March 3, 1899, a captain in the navy who is retired as a rear
admiral receives three-fourths of the pay of rear admirals in the
nine lower numbers of the eighteen rear admirals provided for by
the act, and not three-fourths of the pay of those in the nine
higher numbers.
Page 194 U. S. 183
While repeals by implication are not favored where the same
subject matter is covered by two acts which cannot be harmonized
with a view to giving effect to the provisions of each, the latter
act prevails, to the extent of the repugnancy between them when it
is apparent that the latter act was intended as a substitute for
the earlier one.
District of Columbia v. Hutton,
143 U. S. 18.
Provisions as to allowances which are fixed for naval officers in
the Navy Personnel Act of March 3, 1899, supersede the statutory
provisions as to the same allowances in the earlier statutes.
This is an appeal from the Court of Claims. The claimant is a
retired rear admiral. This action was prosecuted to recover the
difference between three-fourths the pay of a brigadier general and
that of a major general of the Army, accorded by statute to retired
rear admirals. The Court of Claims dismissed the petition, holding
the claimant entitled to three-fourths the pay of a brigadier
general. Upon the hearing in that court, the following facts were
found:
"I. The claimant, William C. Gibson, was duly appointed a
captain in the Navy, to rank from February 18, 1900. While serving
in that grade, then being an officer of the Navy, with a creditable
record, who served during the Civil War, he was retired by the
following order:"
"Navy Department"
"Washington, June 30, 1900"
" Sir: On July 23, 1900, you will regard yourself transferred to
the retired list of officers of the U.S. Navy, in accordance with
the provisions of section 1444 of the Revised Statutes, and with
the rank and three-fourths of the sea pay of the next higher grade,
i.e., rear admiral, in accordance with the provisions of
section 11 of the Naval Personnel Act, approved March 3, 1899."
" Respectfully,"
"John D. Long"
"
Secretary"
"Captain William C. Gibson, U.S. Navy, commanding U.S.S.
Texas"
"II. Since his retirement, he has received pay at the rate
of
Page 194 U. S. 184
four thousand one hundred and twenty-five dollars ($4,125) a
year, being three-fourths of five thousand five hundred dollars
($5,500) the pay fixed by section 1261 of the Revised Statutes of
the United States, as that of a brigadier general in the Army."
"If paid at the rate fixed by said section 1261 for a major
general in the Army, he would receive pay at the rate of
three-fourths of seven thousand five hundred dollars a year, being
five thousand six hundred and twenty-five dollars ($5,625) a year,
a difference of over and above what he has been receiving of one
thousand five hundred dollars ($1,500) a year."
"III. From January 22, 1900, to July 3, 1900, inclusive,
claimant was, by regular assignment, in command of the U.S.S.
Texas, a seagoing vessel in commission. During that
period, he was, prior to the 18th of February, a commander, in
receipt of pay at the rate of four thousand dollars ($4,000) a
year, and from and after that date a captain, receiving pay at the
rate of four thousand five hundred dollars ($4,500) a year. He did
not, while so attached to and in command of said vessel, receive
any sea ration or commutation therefor, under Revised Statutes,
sections 1578 and 1585."
"The commutation therefor, at the rate of thirty cents per day,
would amount to forty-eight dollars and ninety cents ($48.90).
"
Page 194 U. S. 186
MR. JUSTICE DAY delivered the opinion of the Court.
The first question presented is whether a captain in the Navy,
retired as a rear admiral, under section 1444 of the Revised
Statutes of the United States and section 11 of the Navy Personnel
Act, shall receive three-fourths of the pay of the rear admirals in
the nine higher numbers in the list of rear admirals or the like
proportion of the pay of the nine lower numbers of the eighteen
rear admirals.
Section 1444 of the Revised Statutes provides:
"When any officer below the rank of vice admiral is sixty-two
years old, he shall, except in the case provided in the next
section, be retired by the President from active service."
Section 11 of the navy personnel act reads:
"That any officer of the Navy, with a creditable record, who
served during
Page 194 U. S. 187
the Civil War, shall, when retired, be retired with the rank and
three-fourths the sea pay of the next higher grade."
30 Stat. 1004, 1007.
Section 13 provides:
"That after June thirtieth, eighteen hundred and ninety-nine,
commissioned officers of the line of the Navy and of the medical
and pay corps shall receive the same pay and allowances, except
forage, as are or may be provided by or in pursuance of law for the
officers of corresponding rank in the Army."
In the first proviso of section 7 of said act, provision having
been made for eighteen rear admirals in the active list of the line
of the Navy, it is enacted as follows:
"
Provided, That each rear admiral embraced in the nine
lower numbers of that grade shall receive the same pay and
allowances as are now allowed a brigadier general in the Army."
30 Stat. 1005.
The claimant, at the time of his retirement, was a captain in
the United States Navy who had served during the Civil War and was
retired, by order of the Secretary of the Navy, pursuant to section
1444 of the Revised Statutes, with the rank and with three-quarters
of the sea pay of the next higher grade, in accordance with section
11 of the Navy Personnel Act above quoted.
By section 1466 of the Revised Statutes of the United States, it
is provided:
"The relative rank between officers of the Navy, whether on the
active or retired list, and officers of the Army, shall be as
follows, lineal rank only being considered:"
"The vice admiral shall rank with the lieutenant general"
"Rear admirals with major generals"
"Commodores with brigadier generals"
"Captains with colonels"
"Commanders with lieutenant colonels"
"Lieutenant commanders with majors"
"Lieutenants with captains"
"Masters with first lieutenants"
"Ensigns with second lieutenants "
Page 194 U. S. 188
Section 1261 fixes the pay of the officers of the Army:
"The officers of the Army shall be entitled to the pay herein
stated after their respective designations:"
"The general: thirteen thousand five hundred dollars a year"
"Lieutenant general: eleven thousand dollars a year"
"Major general: seven thousand five hundred dollars a year"
"Brigadier general: five thousand five hundred dollars a
year"
"Colonel: three thousand five hundred dollars a year"
The claim of the appellant is, in substance, that the pay of the
next higher grade above captain, the three quarters of which the
appellant is to receive, is the full pay of a rear admiral -- that
of a major general -- and not what is claimed to be the exceptional
pay for the nine lower numbers of that grade, who are to receive
the pay and allowance of a brigadier general.
It is admitted in the discussion that the provision fixing the
pay of the nine rear admirals to correspond with the pay of a
brigadier general arose from the fact that the relative rank of
officers of the Army and Navy had been so adjusted by statute as to
rank commodores with brigadier generals, and the rank of commodore
being dropped from the service, the pay of a brigadier general was
given to the nine lower numbers of the rear admirals, who would
otherwise have had the rank of commodores, with the corresponding
pay of brigadier generals.
The argument for the appellant insists that the language is
plain and so explicit as to need no construction; but the fact that
the rear admirals are divided into two classes for the purposes of
pay, and the statute not specifically pointing out which class of
pay shall be given those situated as the claimant is, leads us to
consider the objects to be attained by the new law, the
circumstances under which it was enacted, and to construe the
language used in view of the purpose of Congress in enacting the
statute.
There is no question that, had the claimant been promoted in the
active service from captain to rear admiral, he would have passed
into the lower grade of rear admirals, so far at least, as his pay
was concerned, and would have received, so
Page 194 U. S. 189
long as within that number, the pay of a brigadier general,
notwithstanding that, for all other purposes, he was entitled to
the rank and privileges of a rear admiral.
The appellant was promoted, and almost immediately retired; when
thus retired, having served during the Civil War, he was given the
rank of the next higher grade and three-fourths of the sea pay of
that grade. Congress had already created, for the purposes of pay,
a division in the rank or grade of rear admiral, with higher pay
for those of higher number and lower pay for others in the rank. It
seems to us that it was the object of Congress, when retiring an
officer under the circumstances stated, that he should receive the
pay of the next higher rank, and, but for the division made in the
pay of rear admirals, he would receive the three quarters of the
full pay of that rank; but, taking one step upward for the purpose
of pay, he passes into, and not over, the next pay grade, which is
that of the nine lower numbers.
In regular gradation in the active service, a rear admiral, for
the purposes of pay, must first serve through the nine lower
numbers of the grade. So with a retiring officer; it is the purpose
to give him, as compensation in the regular order of promotion, the
pay of the "next higher grade." This conclusion is in harmony with
the decision of this Court in
Rodgers v. United States,
185 U. S. 83, in
which MR. JUSTICE BREWER, speaking for the Court, said of this
statute:
"The individuals thus raised in rank were not so raised on
account of distinguished services or for any personal reason, but
simply in consequence of the abolition of the official rank they
had held. Is it unreasonable to believe that Congress thought it
unwise to give to those officers (who had neither by length of
service or by personal distinction become entitled to the position
of rear admiral as it had stood in the past) all the benefits of
such position? Would it be unnatural for Congress to bear in mind
those who, by length of service, or by personal distinction, had
already earned the position, and provide that, in at least the
matter of pay, there should be some recognition
Page 194 U. S. 190
of the fact? Again, is it unreasonable to believe that Congress
intended that those officers whose past services placed them
according to the prior relative rank side by side with brigadier
generals of the Army should not, by a mere change of statute, be
given a benefit in salary which was not at the same time accorded
to brigadier generals in the Army? May not this explain its action
in so dividing the rear admirals into two classes -- one composed
substantially of former rear admirals, equal both in rank and pay
with major generals in the Army, and the other of those who in the
past were only commodores, to whom was given the rank of rear
admirals, but the pay of brigadier generals in the Army?"
We cannot believe that it was the intention of Congress that an
officer upon retirement, and whose promotion shortly before his
retirement was made for the purpose of giving him an increase of
pay as well as rank, was intended to be given the higher grade of
pay reserved for those of distinction or long service in the grade
to which the retiring officer was promoted, leaving those in the
active service who earned the right to promotion to receive the
lower grade of pay. In short, we believe it was the intention of
Congress to promote a retiring officer for the purposes of pay into
the next grade above that in which he served before retirement. In
this case, such compensation was that provided for rear admirals of
the lower grade. If this were not so, a retiring rear admiral would
receive, under the circumstances now before us, more pay upon
retirement than is given to the rear admirals in active service in
the lower pay grade. It is urged that the promotion and retirement
of those who had rendered valuable service in the Civil War was the
object of Congress, which purpose is best subserved by construing
the statute to give in case of such promotions the full rank and
pay of the grade to which the officer is promoted. This reasoning
may be adequate to furnish a motive for such legislation, but we
can only give effect to purposes expressed or necessarily implied
in the terms of the statute.
Page 194 U. S. 191
But it is urged that, in sections 8 and 9 of the Navy Personnel
Act, Congress, in providing for retirement of naval officers, has
included the grade of commodores, and provides that captains within
their terms shall be retired with three-fourths the pay of the next
higher grade, "including the grade of commodore, which is retained
on the retired list for this purpose," thus evincing the purpose of
Congress to retain the rank and pay of commodores in express terms
when such is the purpose. But this reservation is for officers
retired under these sections who are not to rank above commodores,
while officers who served in the Civil War and are retired are to
have the full rank of admirals, with the pay of the lower grade of
the rank.
We agree with the Comptroller of the Treasury and the Court of
Claims in the construction to be given this statute. If the purpose
of Congress has been mistaken, the law can be corrected by a new
enactment making clear the intention to give the more liberal
treatment contended for by the appellant.
The question remains as to the right of this officer to receive
commutation for the sea ration provided for by 1578 and 1585 of the
Revised Statutes. These sections are:
"SEC. 1578. All officers shall be entitled to one ration, or to
commutation therefor, while at sea or attached to a sea-going
vessel."
"SEC. 1585. Thirty cents shall in all cases be deemed the
commutation price of the navy ration."
The provision of section 13 of the Navy Personnel Act is:
"Officers of the line of the Navy . . . shall receive the same
pay and allowances, except forage, as are or may be provided by or
in pursuance of law for the officers of corresponding rank in the
Army."
30 Stat. 1007.
The claim upon this branch of the case is that sections 1578 and
1585 are not repealed in express terms by section 13 of the Navy
Personnel Act, and, as repeals by implication are not favored, it
is argued that, notwithstanding the later law, the allowance for
sea rations still remains for naval officers. But
Page 194 U. S. 192
the later act distinctly provides that, after June 30, 1899,
commissioned officers of the line of the Navy and of the medical
and pay corps shall receive the same compensation and allowance,
except forage, as are or may be provided by or in pursuance of law
for the officers of corresponding rank in the Army. This section
was intended to cover, and in exact terms provides for, all pay and
allowance for naval officers except forage. Where it is the
intention of the statute to make a distinction or exception in
allowance, that exception is expressly stated. The subject matter
of the later act provides for allowances to such officers, and it
is to be the same as is now provided by law for Army officers of
corresponding rank. Had Congress intended that such allowances as
theretofore given should be continued, or to reserve, the right to
commutation as to the sea ration, it would have been very easy to
have inserted apt words which would have rendered effectual this
purpose. But the terms of the law undertaking to revise former laws
upon the subject make no such reservation as is contended for, and
we think we are not at liberty to add to the statute by inserting
it.
It is true that repeals by implication are not favored, but
where the same subject matter is covered by two acts which cannot
be harmonized with a view to giving effect to the provisions of
each, to the extent of the repugnancy between them the latter act
will prevail, particularly in cases where it is apparent that the
later act was intended as a substitute for the earlier one.
District of Columbia v. Hutton, 143 U. S.
18,
143 U. S.
26.
It is admitted that a change in the compensation of naval
officers was made by the enactment of the new law, and, while
section 13 provided that such officers should not be reduced in
pay, there is no provision retaining the allowances of the former
act. Moreover, section 26 of the Navy Personnel Act provides that
all acts and parts of acts, so far as they conflict with its
provisions, shall be repealed. For the reasons stated we think the
allowance of the previous statute cannot stand
Page 194 U. S. 193
consistently with the express provision upon the same subject of
the later act.
We find no error in the judgment of the Court of Claims, and the
same is
Affirmed.
MR. JUSTICE BREWER took no part in the consideration or decision
of this case.