While the intention of Congress in the Navy Personnel Act of
March 3, 1899, was to put officers of corresponding rank in the
Army and Navy on the same general footing with respect to their
general pay and to make the act prospective in its application to
any future legislation by which the general pay of army officers
might be increased, Congress may increase the pay of army officers
for services in particular places and under special circumstances
without thereby intending such increase to apply to naval
officers.
A captain in the Navy is not entitled to the ten percent
additional pay given to army officers under the acts of May 26,
1900, and March 2, 1901, for services in Philippine and Chinese
waters or for service beyond the limits of the states comprising
the Union.
The term "vessel employed by authority of law," within the
meaning of § 1571, Rev.Stat., is restricted to vessels owned or
chartered by, or otherwise engaged in the service of, the
government and while an officer is traveling on land or on a vessel
other than one so employed by authority of law he is not entitled
to pay for sea duty.
This was a petition for certain allowances claimed to be due
petitioner as a captain in the United States Navy, under Act of
March 3, 1899, 30 Stat. 1004, equalizing the pay of Army and Navy
officers, and known as the Navy Personnel Act. The findings of fact
are too long to be here reproduced, but the several items claimed
by petitioner, and from the disposition of which these appeals are
taken, are cited by counsel in their brief and by the Court of
Claims as follows:
1. From May 26, 1900, to March 1, 1901, he was paid sea pay of a
captain at $4,500 a year, and claims ten percent increase of this
pay for services in the Philippines and in China, under the Acts of
May 26, 1900, and March 2, 1901. 31 Stat. 205, 895.
2. From March 2, 1901, to June 11, 1901, he was paid the sea pay
of a captain -- $4,500 a year -- and claims ten percent
Page 195 U. S. 419
increase of this pay for service outside the United States,
under the provisions of the Act of March 2, 1901, 31 Stat. 895,
903.
3. From June 12, 1901, to September 30, 1901, he was paid sea
pay at $4,500 a year, and claims ten percent increase under the Act
of March 2, 1901, for service outside the United States. During
this time, he was in the waters of the San Francisco Bay, traveling
from San Francisco to Puget Sound, and in the waters of Puget
Sound. This claim is made provisionally in case his service in
Chinese and Philippine waters is not considered to be service "in
China" and "in the Philippine islands," entitling him to ten
percent increase from May 26, 1900, to March 1, 1901. In that
event, he would claim that his service in waters of the United
States was beyond the limits of the states comprising the
Union.
4. Between December 2, 1899, when relieved as commanding officer
of the U.S.S.
Lancaster, and ordered to report to the Navy
Department, and February 7, 1900, when he took command of the
U.S.S.
Baltimore at Hong Kong, China, he was paid only
shore pay -- $3,825 a year -- fifteen percent less than sea pay. He
claims seam pay, $4,500 a year during that time.
The last item was disallowed. The first three items were at
first disallowed, but, on a rehearing, were allowed and final
judgment rendered for $568.29. 38 Ct.Cl. 113, 719 . Both parties
appealed to this Court.
MR. JUSTICE BROWN delivered the opinion of the Court.
This case depends upon the construction given to section 13
Page 195 U. S. 420
of the Navy Personnel Act, declaring that,
"after June 30, 1899, 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 officers of corresponding rank in the
Army."
The object of this act can best be understood by considering the
prior legislation of Congress upon the same general subject, and
the circumstances under which the act was passed. By the Act of
July 16, 1862, Rev.Stat. section 1466, the relative rank of Army
and Navy officers was fixed by declaring that rear admirals shall
rank with major generals, commodores with brigadier generals,
captains with colonels, commanders with lieutenant colonels,
lieutenant commanders with majors, lieutenants with captains,
etc.
It was, however, a source of dissatisfaction to Navy officers
that some of them did not receive the same pay as corresponding
officers of the Army, although others received a larger pay. Thus,
by sections 1261 and 1556, the highest pay of a rear admiral, when
at sea, was $6,000, while a major general received $7,500; a
commodore received $5,000 when at sea, while a brigadier general
received $5,500. A captain, however, when at sea received $4,500,
while a colonel received but $3,500.
To remove this dissatisfaction Congress passed the Navy
Personnel Act, assimilating the pay of Navy officers to Army
officers of corresponding rank, with a proviso, however,
"that no provision of this act shall operate to reduce the
present pay of any commissioned officer now in the Navy, and in any
case in which the pay of such an officer would otherwise be reduced
he shall continue to receive pay according to existing law."
The effect of this legislation was to raise the pay of certain
Navy officers to that received by Army officers of corresponding
rank and to leave undisturbed the present pay of certain other Navy
officers, who were already receiving higher pay than Army officers
of the same rank.
The intention of Congress was evidently to put officers of
Page 195 U. S. 421
the Army and Navy on the same footing with respect to their
general pay, and to make the act prospective in its application to
future legislation, so that, if Congress should thereafter raise
the general pay of Army officers as fixed by Revised Statutes,
section 1261, a like increase should apply to Navy officers. It
does not, however, follow that Congress may not increase the pay of
Army officers for services in particular places or under special
circumstances without thereby intending that the same increase
shall apply to naval officers performing the same service under
like circumstances. Thus, if the act should allow Army officers
increased pay when ordered to sea or to a foreign port, it would
not follow that naval officers would be entitled to a like
increase, since such service would be wholly exceptional in the
case of Army officers, while it is the natural and normal duty of
Navy officers to engage in sea service, cruise in foreign waters,
and lie up in foreign ports. It never could have been the intention
of Congress to disable itself from awarding to a particular class
of Army officers an increase of pay for exceptional services
without thereby increasing the pay of Navy officers, whose lives
are largely passed in performing like services.
Confirmation of this view is found in the second proviso of
section 13,
"that, when naval officers are
detailed for shore duty
beyond seas, they shall receive the same pay and allowances as
are or may be provided by or in pursuance of law for officers of
the Army detailed for duty in similar places."
Here is a distinct recognition of the fact that, when naval
officers are detailed for a special or unusual duty beyond seas,
they shall receive the same pay as Army officers detailed for the
same duties. This provision, however, would be wholly unnecessary
if the act were given the broad application contended for, since
the increased pay allowed to Army officers for duty beyond seas
would apply to naval officers without a special proviso to that
effect. Shore duty beyond seas being an exceptional duty both to
officers of the Army and Navy, and being probably attended by
increased expenditures and dangers incident to
Page 195 U. S. 422
a tropical climate, it is very natural that Congress should
award them both increased compensation.
The principal questions in this case, however, arise from the
Army appropriation bills of May 26, 1900, and March 2, 1901, making
appropriation for the support of the Army for the year ending June
30, 1901, and 1902, the first of which contains the following
proviso:
"
Provided, That hereafter the pay proper of all
officers and enlisted men serving in Porto Rico, Cuba, the
Philippine islands, Hawaii, and in the Territory of Alaska, shall
be increased ten percent for officers and twenty percent for
enlisted men, over and above the rates of pay proper as fixed by
law in time of peace."
31 Stat. 211.
Here is an increase of ten percent allowed to Army officers
serving in certain designated places. Doubtless if naval officers
were detailed for shore duty in any of these islands, they would
receive a like increase of pay, under the proviso of section 13 of
the Personnel Act, heretofore quoted. But, unless they are detailed
for shore duty, it is impossible to hold that they are entitled to
extra pay without treating as obsolete the above proviso requiring
such detail.
The Act of March 2, 1901, 31 Stat. 895, 903, making
appropriation for the support of the Army for the fiscal year
ending June 30, 1903, contains the following proviso:
"
Provided, That hereafter the pay proper of all
officers and enlisted men serving beyond the limits of the states
comprising the Union, and the territories of the United States
contiguous thereto, shall be increased ten percentum for officers
and twenty percentum for enlisted men, over and above the rates of
pay proper as fixed by law for time of peace, and
the time of
such service shall be counted from the date of departure from said
states to the date of return thereto:"
"
Provided further, That the officers and enlisted men
who have served in China at any time since the twenty-sixth day of
May, 1900, shall be allowed and paid for such service the same
increase of pay proper as is herein provided for. "
Page 195 U. S. 423
Under this proviso, an Army officer ordered to the Philippine
Islands receives an increase of pay from the day he leaves San
Francisco until he returns there. This allowance was undoubtedly
based upon the consideration that service, both in the Philippines
themselves and upon the voyage going and returning, was an
exceptional service, attended by peculiar hardships; but to say
that Navy officers shall be entitled to the same increase is
practically to add ten percent to their sea pay from the moment
they leave a port of the United States until they return thereto --
in other words, to increase their normal sea pay ten percent
whenever they are serving beyond the limits of the states.
So far as applied to naval officers, it goes further than this.
The act of 1901 does not, as did the act of 1900, limit the
increase of pay to officers serving in our island possessions and
in Alaska, but extends it to all serving beyond the limits of the
United States, so that, if applied to naval officers, whenever a
vessel is ordered to sea beyond the three-mile limit, be it only
upon a practice cruise or a voyage from Pensacola to New York,
every officer on such vessel is entitled to a ten percent increase
of his ordinary pay from the day he sets sail until the day he
returns.
It is not for a moment to be supposed that Congress contemplated
any such sweeping innovation. This construction would not only
render nugatory and obsolete the proviso of the Personnel Act that
officers, to be entitled to Army pay, shall be detailed for shore
duty, but largely discriminates in favor of naval officers by
adding ten percent to their pay for their normal sea duties without
a corresponding addition to the pay of Army officers for the
performance of
their normal duties, which are upon land --
in other words, instead of assimilating the pay of Army and naval
officers, it actually dissimilates them.
In our opinion, the proviso that naval officers shall be
entitled to Army pay "when detailed for shore duty beyond seas" is
not repealed or rendered inoperative by anything contained
Page 195 U. S. 424
in the Acts of May 26, 1900, and March 2, 1901, and that naval
officers are not entitled to an increase of pay while discharging
their ordinary sea duties.
It is significant in this connection to notice that, in the
appropriation Act of March 2, 1901, for the support of the Army for
the fiscal year of 1902, there was an item of $500,000, for an
"additional ten percentum increase on the pay of officers serving
at foreign stations." 31 Stat. 903. This was followed by a similar
provision in the Appropriation Act of June 30, 1902, for the year
of 1903, the amount appropriated being $451,456, 32 Stat. 507, 512,
and in the Army Appropriation Act of March 2, 1903, for the year
1904, there was also an item of $200,000, for the same purpose. 32
Stat. 933. So also in the appropriation Act of April 23, 1904, 33
Stat. 259, 266, for the year 1905, there is an item for an
additional ten percentum increase on the pay of commissioned
officers serving in the Philippine Islands, the Island of Guam,
Alaska, China, and Panama, of $167,426.30.
Notwithstanding these repeated provisions for the increase of
Army pay, Congress has never made an appropriation for the largely
increased pay to which naval officers would be entitled under the
acts of 1900 and 1901, or otherwise recognized their claim for
increased pay to which such officers would be entitled upon the
theory of the petitioner in this case. This omission lends support
to the theory that Congress supposed that the ordinary sea services
of naval officers were sufficiently compensated by the addition of
fifteen percentum to their shore pay.
2. Different considerations apply to the claim of petitioner to
sea pay from December 2, 1899, to February 7, 1900. Claimant was
relieved as commanding officer of the
Lancaster, then at
Barbadoes, December 2, 1899, and ordered to report to the Navy
Department, where he arrived, by merchant steamer, December 12,
1899. Upon the following day he was ordered to proceed to Hong
Kong, for duty on the Asiatic station, and sailed by merchant
steamer from San Francisco,
Page 195 U. S. 425
January 6, 1900. He reported in obedience to his orders, and was
assigned to the command of the
Balitmore at Hong Kong,
February 7, 1900. Between December 2, 1899, and February 7, 1900,
petitioner was occupied in traveling on duty, partly on merchant
steamer and partly on land, and in reporting to the Navy
Department. During this time, his pay was reduced fifteen percent
from the regular sea pay, in accordance with the first proviso of
the Personnel Act, which declares that "such officers, when on
shore, shall receive the allowances, but fifteen percentum less pay
than when on sea duty."
The order detaching him from the
Lancaster was as
follows:
"Sir: You are hereby detached from duty in command of the
U.S.T.S.
Lancaster, will proceed immediately to
Washington, D.C., and report at the Navy Department at that place,
for special temporary duty."
"Hold yourself in readiness for orders to sea duty."
"This employment on shore duty is required by the public
interest."
"Respectfully,"
"(Sgd.) A. S. Crowninshield,"
"
Acting Secretary"
"Captain Charles M. Thomas, U.S. N."
"
U.S.T.S. Lancaster"
The next day, after reporting to the Navy Department under this
order, he was ordered to proceed to San Francisco, California, and
thence to Hong Kong. It thus appears that, while he was not
regularly detailed for shore duty, he was ordered to report at the
Navy Department for a special temporary duty, and the final
sentence of the letter indicates that it was regarded as an
employment on shore duty. He was allowed by the Department fifty
dollars traveling expenses from Barbadoes to New York, but was not
allowed either mileage or sea pay. The Court of Claims, however,
allowed him mileage under section 13 of the Navy Personnel Act,
and
Page 195 U. S. 426
a clause of the Army Appropriation Act of March 3, 1899, 30
Stat. 1064, 1068, providing
"that hereafter the maximum sum to be allowed and paid to any
officer of the Army shall be seven cents per mile, distances to be
computed over the shortest usually traveled routes,"
but mileage seems not to have been claimed for his traveling
from Washington to Hong Kong, by reason of the further provision of
the same act "that actual expenses only shall be paid to officers
when traveling to and from our island possessions in the Atlantic
and Pacific Oceans." The government apparently acquiesced in this
allowance of mileage, as it made no appeal therefrom.
But the Court of Claims further held that, under Rev.Stat.
section 1571, he was not entitled to sea pay, because, by that
section,
"no service shall be regarded as sea service except such as
shall be performed at sea, under the orders of a department, and in
vessels employed by authority of law."
This construction must necessarily be correct unless we are
prepared to hold that a steamer upon which a navel officer takes
passage under the orders of the department is a "vessel employed by
authority of law." Obviously, it does not admit of this
construction. A person who takes passage upon a steamer or a seat
in a railway carriage does not "employ" such steamer or carriage in
any just sense. We think the term "vessels employed by authority of
law" is restricted to vessels owned or chartered by the government,
or otherwise engaged in the service of the United States.
Sea duty being duty at sea upon such vessels, an allowance for
mileage is obviously inconsistent with such duty, as the pay of the
officer necessarily includes travel upon such vessels, while it is
appropriate to shore duty, since travel upon such duty is performed
either upon land or upon vessels not engaged in government
service.
There is nothing in the Navy Personnel Act inconsistent with or
repealing Rev.Stat. section 1571, and the case of
Gibson v.
United States, 194 U. S. 182, is
not in point. In that case, it was held that the Personnel Act did
repeal sections 1578
Page 195 U. S. 427
and 1585, allowing sea rations, because the later act covered
the same subject, and superseded the provisions of those sections.
There is no such conflict between section 1571 and the Personnel
Act.
The ruling of the Court of Claims in this last particular was
correct; but for the error in the previous ruling the decree must
be reversed.