A court is not always confined to the written words of a
statute; construction is to be exercised, as well as
interpretation, and a statute will not be construed as giving
higher pay to the inferior officer. Under the Navy Personnel Act of
March 3, 1898, 30 Stat. 1007, and § 1466 Rev.Stat., passed
assistant surgeons of the Navy, as well as assistant surgeons, rank
with captains in the Army, and are entitled to the pay of a captain
mounted.
41 Ct.Cl. affirmed.
MR. JUSTICE McKENNA delivered the opinion of the Court.
The appellee filed a petition in the Court of Claims to recover
from the United States the sum of $282.66 for the difference he
alleged he was entitled to as a passed assistant surgeon in the
Navy, with the rank of lieutenant, for mounted pay from December
26, 1900, to July 27, 1901, with ten percent increase for service
outside of the limits of the United States. He was given judgment
for $141.33. The ten percent increase was not allowed.
A statement of the case is well expressed in the findings and
conclusion of the court, as follows:
"The claimant, Ammen Farenholt, entered the naval service as an
assistant surgeon May 29, 1894, and was promoted to the grade of
passed assistant surgeon May 29, 1897. He attained the rank of
lieutenant on December 26, 1900, and was a passed assistant surgeon
in the Navy with the rank of lieutenant during all of the time
covered by this petition."
"From December 26, 1900, to April 12, 1901, he was on sea duty
attached to the U.S.S. 'Concord.' From April 12, 1901, to July 27,
1901, he was on sea duty attached to the U.S.S. 'Oregon.'"
"The claimant has already received pay at mounted rates for the
periods before December 26, 1900, and after July 27, 1901, under
the decisions of the Court of Claims in
Richardson v. United
States, 38 Ct.Cl. 182, as applied by the Comptroller of the
Treasury in
Brownell's Case, 9 Comp.Dec. 676, but the
Treasury Department declines to allow him mounted pay between these
dates only because it considers that it is deprived of jurisdiction
over the claim therefor by reason of a prior allowance and
settlement of pay for the same period."
"If entitled to Army pay at mounted rates for this period, the
amount due would be as follows:"
Pay of a lieutenant of the Navy,which corresponds
in rank with a captain in the Army, mounted,
from December 26, 1900, to July 27, 1901, with
Page 206 U. S. 228
increased pay for length of service, 7 months
and 2 days at $2,400.00 per annum . . . . . . . . .
$1,413.33
Less amount received for same period at
$2,160.00 per annum . . . . . . . . . . . . . . . . 1,272.00
---------
Difference . . . . . . . . . . . . . . . . . . $ 141.33
"Before the date of the decision of this Court in the case of
Richardson v. United States, supra, January 5, 1903,
assistant surgeons in the Navy received only the pay of an officer
of corresponding rank in the Army 'not mounted.' By that decision,
it was held that they are entitled to the pay of such an officer
'mounted.' This decision was not appealed from, and has been
accepted as the proper interpretation of the law. It has been
applied by ruling of the Comptroller of the Treasury to passed
assistant surgeons."
"All officers of the medical corps in grades for which there is
in the Army pay table, a distinction between 'mounted' and 'not
mounted' pay have ever since been paid at mounted rates of pay for
their service from the date the personnel act took effect, July 1,
1899, to the present time."
"
Conclusion of Law"
"Upon the foregoing findings of fact, the court decides as a
conclusion of law, on the authority of
Richardson v. United
States, supra, that the claimant is entitled to recover
against the United States the sum one hundred and forty-one dollars
and thirty-three cents ($141.33)."
"By a majority of the court."
Section 13 of the Act of March 3, 1899, 30 Stat. 1007, called
the Navy Personnel Act, 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
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."
Section 1466, Revised Statutes, assimilates in rank lieutenants
in the Navy with captains in the Army. And § 1261
Page 206 U. S. 229
fixes the pay of a captain, mounted at $2,000 a year and a
captain not mounted at $1,800 a year. Section 1262 gives ten
percent increase for each term of five years' service.
The appellee is a lieutenant in the Navy; he ranks with a
captain in the Army, but the question is, of which class, mounted
or not mounted?
The government contends with captains not mounted. Its argument
is that the extra pay that mounted officers receive is not
compensation, but reimbursement for expenses incurred, and to give
it to a naval officer who does not bear such expenses would produce
the inequality that the Navy Personnel Act was passed to prevent.
United States v. Crosley, 196
U. S. 332. Counsel, however, concedes that
Richardson v. United States, supra, was correctly decided,
and that the rule has been extended by the Comptroller of the
Treasury to passed assistant surgeons, but attacks the practice of
the Comptroller and rejects the application of the
Richardson case upon the distinction between an assistant
surgeon, which Richardson was, and a passed assistant surgeon,
which appellee is.
The Act of June 7, 1900, 31 Stat. 697, provides that
"the active list of surgeons shall hereafter consist of
fifty-five, and that of passed assistant and assistant surgeons of
one hundred and ten. Assistant surgeons shall rank with assistant
surgeons in the Army."
Commenting on this statute, the government says:
"Assistant surgeons in the Army being mounted, the court very
justly granted mounted pay to Richardson, who ranked with assistant
surgeons in the Army."
In other words, the government contends it was the purpose of
Congress to give the inferior officer the better pay. The Assistant
Attorney General ventures on no explanation of this anomaly, but
insists upon the written word. A court is not always confined to
the written word. Construction sometimes is to be exercised, as
well as interpretation. And
"construction is the drawing of conclusions respecting subjects
that lie beyond the direct expression of the text, from elements
known from and given in the text -- conclusions which are in the
spirit, though not within
Page 206 U. S. 230
the letter, of the text."
Lieber 56. The application of this rule is clear. Consideration
of the provisions relative to the rank and pay of officers of the
Army and Navy make it evident that Congress used the words
"assistant surgeon" as descriptive of the whole class of assistant
surgeons, passed as well as those not passed.
Judgment affirmed.
MR. JUSTICE MOODY took no part in the decision of this case.