Under § 13 of the Navy Personnel Act of March 3, 1899, 30 Stat.
1007, c. 413, and the Acts of June 7, 1900, 31 Stat. 697, c. 859,
March 2, 1907, 34 Stat. 1167, c. 2511, and May 13, 1908, 35 Stat.
127, c. 166, the pay of acting assistant surgeons was enhanced and
assimilated to that of assistant surgeons in the Army, and did not
remain fixed as regulated by § 1556, Rev.Stat.
Where an act of Congress, such as the Navy Personnel Act of
1899, provides for a standard by which to determine rank and pay of
officers, it will not be presumed that Congress intended to create
an inequality of compensation while leaving unmodified equality of
rank and duty, and so
held as to the provisions for pay of
assistant surgeons and acting assistant surgeons in the Navy.
The construction of the statutes involved in this case is the
contemporaneous construction given thereto by the Executive
Department charged with execution of the provisions thereof.
Longevity pay of officers of the Army and Navy under the Act of
May 13, 1908, 35 Stat. 127, c. 166, is computed on the sum of the
base pay, and not the base pay and previous increases thereof.
Where Congress, after a decision of this Court construing a
certain expression used in a statute, passes a statute declaring
that those
Page 224 U. S. 138
words hall be construed as having a definite meaning different
from that given by this Court, that expression, when used in a
later statute on the same subject, will be presumed to have the
meaning so given to it by Congress, and not that previously given
by this Court.
Congress having by the Act of June 30, 1882, 22 Stat. 118, c.
254, expressly provided that the current yearly pay on which
longevity pay of officers of the Army and Navy is to be computed is
base pay, and not base pay and increases, so as to overcome the
construction given to the words "current yearly pay" by this Court
in
United States v. Tyler, 105 U.
S. 44, those words will be construed in the same manner
when used in the subsequent Act of May 13, 1908, 35 Stat. 125, c.
166, and not as construed in
United States v. Tyler.
45 Ct.Cl. 614 reversed.
The facts, which involve the construction of the provisions of
acts of Congress relating to pay of acting assistant surgeons in
the Navy, are stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
This appeal is from a judgment of the Court of Claims denying
the right to recover from the United States an alleged balance of
compensation claimed to be due for services rendered as an acting
assistant surgeon at the Naval Station, Key West, Florida, from
July 1, 1903, to July 1, 1909.
Page 224 U. S. 139
By an act approved May 4, 1898, 30 Stat. 380, c. 234, the
President was authorized "to appoint for temporary service
twenty-five acting assistant surgeons, who shall have the relative
rank and compensation of assistant surgeons." When the Act of 1898
was passed, the pay of officers in the naval service was generally
regulated by § 1556, Rev.Stat., and the pay of an assistant surgeon
for shore duty was fixed at $1,400 a year. By § 13 of the Naval
Personnel Act of March 3, 1899, 30 Stat. 1007, c. 413, it was
provided that 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,"
and in a proviso it was declared: "That such officers, when on
shore, shall receive the allowances, but fifteen percentum less pay
than when on sea duty." The effect of this act was to increase the
pay of naval officers generally, and therefore to enhance the pay
of assistant surgeons.
The Act of June 7, 1900, 31 Stat. 697, c. 859, raised the rank
of assistant surgeons in the Navy by providing that "assistant
surgeons shall rank with assistant surgeons in the Army." We say
that this act raised the rank of assistant surgeons in the Navy for
the following reasons: prior to that act, the rank of assistant
surgeon in the Navy, upon entrance into the service, was that of
ensign. Rev.Stat. § 1474. As by Rev.Stat. § 1168, the lowest rank
of an assistant surgeon in the Army during the first three years of
service was that of a lieutenant of cavalry, the effect of the Act
of 1900 was therefore to give to assistant surgeons in the Navy a
higher rank -- that is, to raise them from the rank of ensign to
that of lieutenant, junior grade.
On December 29, 1902, the Surgeon General of the Navy published
a circular soliciting applications for appointment "as acting
assistant surgeons for three years
Page 224 U. S. 140
of service," and in the circular, among other things, it was
stated as follows:
"The Secretary of the Navy, in order to meet the exigencies of
the service, has authorized the appointment of twenty-five acting
assistant surgeons for three years' service, to have the same rank
and pay as assistant surgeons in the regular service."
"The pay is as follows:"
At sea . . . . . . . . . . . . $1,650.00 a year
On shore, with quarters. . . . 1,402.50 a year
On shore, without quarters . . 1,690.50 a year
Plummer applied for appointment, and was commissioned by the
President as an acting assistant surgeon in the naval service, to
serve for three years from July 1, 1903. After the expiration of
the first appointment, he was reappointed for another term of three
years, and his commission under the first and second appointment
stated his rank to be that of lieutenant, junior grade.
During Plummer's second three-year period of service, two acts
were passed which it is claimed enhanced the compensation of
assistant surgeons, viz.: an act approved March 2, 1907, 34 Stat.
1167, c. 2511, and an act approved May 13, 1908, 35 Stat. 127, 128,
c. 166. By the act of 1907, assistant surgeons were allowed heat
and light for quarters and commutation for the same. By the act of
1908, the pay of a lieutenant, junior grade, the relative rank of
an assistant surgeon, was fixed at $2,000.
During the term of both services, Plummer was paid not at the
rate provided by law for the pay of assistant surgeons at the time
his services as acting assistant surgeon were rendered, but at the
rate of pay which was fixed for assistant surgeons at the time the
Act of 1898 was passed. That is to say, despite the change in rank
and pay of assistant surgeons in the Navy brought about by the
legislation subsequent to 1898, Plummer was paid
Page 224 U. S. 141
upon the theory that those changes had no effect upon the pay of
acting assistant surgeons, and therefore they were entitled only to
the sum which was allowed by law (Rev.Stat. § 1556) at the time the
appointment of acting assistant surgeons was provided for.
By an express finding of the court below, as to which there is
no dispute, if Plummer had been paid at the rate fixed by law for
assistant surgeons at the time his services as acting assistant
surgeon were rendered, he would have been entitled, irrespective of
the question of longevity pay, as to which there is dispute, to
$1,814.78 more pay than he received; to $2,007.20 as commutation of
quarters, and to $341.88 for heat and light for quarters, under the
Act of March 2, 1907; in all, $4,213.86. Whether therefore an
acting assistant surgeon under the legislation to which we have
referred was entitled to be paid as his services were performed at
the rate then fixed by law as the pay and allowance of an assistant
surgeon, and what was the proper basis for the calculation of
longevity pay, are the two questions requiring solution.
The court below based its conclusion that the acting assistant
surgeon was only entitled to the pay which was allowed assistant
surgeons at the time of the passage of the act authorizing the
appointment of acting assistant surgeons, and, hence that acting
assistant surgeons got no benefit from subsequent increases of the
pay of assistant surgeons, upon two previous decisions to that
effect --
James S. Taylor, 38 Ct.Cl. 155, and
Hugh T.
Nelson, 41 Ct.Cl. 157.
The reasoning of the court was thus expressed in the
Taylor case:
"In the Act of March 3, 1899, we fail to find any express
provision applying to officers of the Navy in the temporary
service. That was 'An Act to Reorganize and Increase the Efficiency
of the Personnel of the Navy and the Marine Corps of the United
States,' evidently referring
Page 224 U. S. 142
to the officers of the regular Navy, as it certainly could not
be contended that the Congress had in view the reorganization of
the officers in the temporary service, or that, by that act, they
intended to incorporate them into the permanent service. On the
contrary, it was not until the Act of June 7, 1900, that provision
was made for continuing them in the service by permanent
commissions. Those who received commissions in the permanent
service prior to that act did so presumably after a proper
examination and approval by the board of naval surgeons designated
by the Secretary of the Navy under the Act of May 4, 1898."
But, conceding the correctness of the premise upon which the
reasoning just quoted rests -- that is, the purpose of the Naval
Personnel Act to deal with the standard of pay of the regular naval
establishment -- we think it is not conclusive or even in any
degree persuasive of the question here for decision, which is not
what was the purpose of Congress in fixing a standard for the pay
of the regular naval establishment, but whether that standard, as
fixed, must be resorted to for the purpose of determining the pay
of acting assistant surgeons. The solution of that question must
primarily be found within the text of the act of 1898, and as that
text expressly gives to the acting assistant surgeons whose
appointment it provides for the relative rank and compensation
allowed by law to assistant surgeons, it must follow that, in the
absence of an express provision or a necessary implication to the
contrary in the statute fixing the pay of assistant surgeons, such
standard became the measure by which the pay of the officers
provided for in the act of 1898 was to be ascertained and allowed.
In other words, as the act of 1898 provided for a standard by which
to determine the rank and pay of the acting assistant surgeons --
that is, the rank and compensation allowed assistant surgeons -- in
the nature of things it provided not for the application
Page 224 U. S. 143
of a nonexisting or obsolete standard, but for an existing
standard -- that is, the rank and pay in force at the time when the
services of the acting assistant surgeons were rendered. Looked at
from a broader point of view -- that is, testing the subject from a
consideration of the obvious intent and purpose of the Act of 1898
-- the same conclusion becomes necessary. It may not be doubted
that the relation which the act of 1898 established between the
rank and pay of acting assistant surgeons and assistant surgeons in
reason must rest upon the substantial identity of the services to
be rendered by the incumbents of both offices. This being true, it,
of course, necessarily also is true that a mere increase of the
compensation of assistant surgeons without any change between the
duties of those officers and the duties of acting assistant
surgeons cannot justify the implication, unless there was a clear
manifestation of the purpose to do so, that it was the intention of
Congress to create an inequality of compensation while leaving
unmodified equality of rank and duty.
That the view which we take of the act of 1898 was also the
contemporaneous administrative construction given to the act
plainly results from the circular of the Surgeon General under
which Plummer was appointed, since the pay stated in that circular
was not that fixed in § 1556, Rev.Stat., but was the sum fixed as
the pay of assistant surgeons in the Navy at the time the circular
was issued. Indeed, that such also must have been the view
entertained by the President when Plummer was commissioned
obviously is shown by the fact that Plummer was commissioned as a
lieutenant, junior grade, the rank of an assistant surgeon at the
time of his appointment, and not as an ensign, the rank accorded to
assistant surgeons at the time when the act of 1898 was
adopted.
The controversy as to the sum of longevity pay arises from a
portion of the text of the Act of May 13, 1908, 35 Stat. 128, c.
166, reading as follows:
Page 224 U. S. 144
"There shall be allowed and paid to each commissioned officer
below the rank of rear admiral ten percentum of his current yearly
pay for each term of five years' service in the Army, Navy, and
marine corps. The total amount of such increase for length of
service shall in no case exceed forty percentum on the yearly pay
of the grade as provided by law."
It is insisted that as the words "current yearly pay," as
employed in Rev.Stat. § 1262, were construed in
United States
v. Tyler, 105 U. S. 244, to
require that the calculation of the longevity pay should be made
not upon the sum of the base pay, but on the base pay and previous
increases thereof, that the same rule must be applied to the words
as used in the provision of the statute above quoted. But,
subsequent to the
Tyler case, by the Act of June 30, 1882,
22 Stat. 118, c. 254, Congress expressly directed that the ten
percent longevity increase provided for in § 1262, Rev.Stat.,
should be "computed on the yearly pay of the grade. . . ." That
this act was passed for the express purpose of commanding a method
of computation which would render inapplicable the construction
adopted in the
Tyler case is not open to controversy.
United States v. Miller, 208 U. S. 32,
208 U. S. 38.
Indeed, that from the date of the Act of 1882 down to the present
time, the longevity pay of Army officers has been computed by the
method directed by the Act of 1882 is not controverted. In view of
the purpose of Congress to equalize as far as possible the pay of
Army and Navy officers, manifested by the adoption of the navy
personnel Act of 1899, and in all subsequent legislation as to such
pay, we think it plainly results that the provision relied upon
must be held to have been adopted with reference to the settled
rule prevailing for so many years, a rule consequent upon the Act
of 1882. In other words, we think it may not be doubted that the
intention of Congress in the provision relied upon was that the
longevity pay therein prescribed should be computed
Page 224 U. S. 145
according to the methods then prevailing, and which had resulted
from the enactment of the statute of 1882.
Judgment reversed and cause remanded, with a direction to
enter judgment in favor of claimant for $4,213.86.