The Navy Department has no power to disregard the provisions of
Rev.Stat. §§ 1556, 1571, and Pars. 1154, 1168, naval regulations
and either deprive an officer of sea pay by assigning him to a duty
mistakenly qualified as shore duty but which is in law sea duty, or
to entitle him to receive sea pay by assigning him to duty which is
essentially shore duty and mistakenly qualifying it as sea
duty.
Where, however, the assignment of an officer to duty by the Navy
Department expressly imposes upon him the continued discharge of
his sea duties and qualifies the shore duty as merely temporary and
ancillary to the regular sea duty, the presumption is that the
shore duty is temporary,
Page 196 U. S. 512
and does not operate to interfere with or discharge the officer
from
the responsibilities of the sea duties to which he is regularly
assigned, and he is entitled to sea pay during the time of such
temporary shore duty.
Somewhat condensing the facts below found, they are as follows:
in February, 1897, Chief Engineer Albert C. Engard was performing
duty as the chief engineer of the United States receiving ship
Richmond at League Island, Pennsylvania. On the eleventh
of February, he received the following order from the Navy
Department:
"NAVY DEPARTMENT"
"Washington, February 11, 1897"
"Sir: Report by letter to the president of the Steel Inspection
Board, Navy Yard, Washington, D.C., for temporary duty in
connection with the inspection of steel tubes for the boilers of
torpedo boat No. 11 at Findlay, Ohio, and at Shelby, Ohio."
"You are authorized to perform such travel between League
Island, Pa. and Findlay, Ohio, and between League Island, Pa. and
Shelby, Ohio, as may be necessary in the performance of this
duty."
"Keep a memorandum of the travel so performed by you, certifying
to its necessity, and submit the same to the Department, from time
to time, for its approval."
"This duty is in addition to your present duties."
"Very respectfully,"
"W. McAdoo,
Acting Secretary"
"Chief Engineer Albert C. Engard, U.S. Navy"
"U.S.R.S. Richmond, Navy Yard, League Island, Pa."
Complying with this order, Chief Engineer Engard made two round
trips between League Island and Ohio in order to discharge the
additional duty referred to in the order. The total number of days
in which he was engaged in this work between February 24, 1897, and
August 14, 1897, was 122. On the application to be allowed mileage
for the trips amounting to $172.80, the auditor of the Navy
Department deducted from the claim $133.70, and allowed only
$39.10. The sum
Page 196 U. S. 513
disallowed was deducted on the theory that the chief engineer
was only entitled to be paid for shore duty, instead of for sea
service, during the time referred to. This suit was brought to
recover the amount of the deduction, and the right to so recover
was sustained by the Court of Claims. 38 Ct.Cl. 712.
Page 196 U. S. 514
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
A higher rate of pay is allowed to a chief engineer as well as
to other naval officers when performing sea duty than when engaged
on shore duty. Rev.Stat. 1556. And Rev.Stat. 1571 provides as
follows:
"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."
The government did not dispute at bar, however, that, where an
officer assigned to sea duty within the purview of the foregoing
provision is called upon, without a change in his sea assignment,
to perform merely temporary service ashore, he is entitled to sea
pay. And this is in accord with the naval regulations, wherein it
is provided:
Paragraph 1154:
"(1) Officers shall be entitled to sea pay while attached to,
and serving on board of, any ship in commission under control of
the Navy Department, the Coast Survey, or the Fish Commission. . .
. "
Page 196 U. S. 515
"(3) Any officer temporarily absent from a ship in commission to
which he is attached shall continue to receive sea pay. . . ."
Paragraph 1168:
"A temporary leave of absence does not detach an officer from
duty nor affect his rate of pay."
It is settled that the Navy Department has no power to disregard
the statute, and to deprive an officer of sea pay by assigning him
to a duty mistakenly qualified as shore duty, but which is, in law,
sea duty.
United States v. Symonds, 120 U. S.
46;
United States v. Barnette, 165 U.
S. 174. And, of course, the converse is also true, that
the Navy Department has no power to entitle an officer to receive
sea pay by assigning him to duty which is essentially shore duty,
and mistakenly qualifying it as sea duty. But there is no conflict
between these rulings, and the conceded principle that, where an
officer is assigned to a duty which is essentially a sea service,
that he does not lose his right to sea pay whenever he is called
upon to perform a mere temporary service ashore. In the present
case, it cannot be denied that the officer was assigned to sea
duty, and that the order of the Department, instead of detaching
him therefrom, simply ordered him to discharge a temporary service
ashore in addition to his sea service. The whole contention of the
government is that this temporary shore service was necessarily
incompatible with the continued performance of the officer's duty
on the ship to which he continued to be attached, and therefore
that the shore duty was paramount to the sea service, and
necessarily, by operation of law, affected the detachment of the
officer so as to permanently relieve him from the sea duty to which
he continued to be regularly assigned.
There is no finding in the record, however, which justifies this
argument, and as urged at bar, it rests upon the mere assumption of
the incompatibility between the sea duty to which the officer was
regularly assigned and the temporary shore duty which he was called
upon by the Department to
Page 196 U. S. 516
discharge. In effect, the proposition is that it must be assumed
as a matter of law, in the absence of a finding to that effect,
that the temporary shore duty was of such a permanent character as
to render it impossible for the officer to continue to perform duty
under his permanent sea assignment, and therefore as a matter of
law, caused such assignment to terminate. We think the converse is
true, and that, where the assignment of an officer to duty by the
Navy Department expressly imposed upon him the continued discharge
of his sea duties, and qualified his shore duty as merely temporary
and ancillary to the regular sea duty, that the presumption is that
the shore duty was temporary, and did not operate to interfere with
or discharge the officer from the responsibilities of his sea duty,
to which he was regularly assigned.
Affirmed.
