The assimilating clause of § 13 of the Navy Personnel Act of
1899 applies only to officers on the active list, and does not
repeal the prior laws respecting the pay of officers compulsorily
retired under § 1454, Rev Stat., for incapacity not resulting from
any incident of the service.
A statute will not be so construed under an assimilation clause
as to destroy legislation which Congress incorporated into the act
after having it called to its attention.
The Personnel Act emphasizes the plain intent of Congress not to
destroy the then existing standards of retirement for Navy
officers, but to retain and add to those standards, as
distinguished from the standards of retirement fixed for the
Army.
43 Ct.Cl. 320 affirmed.
The facts are stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
By an order dated October 22, 1900, the President approved the
finding of a retiring board, and directed
"that Lieutenant William G. Hannum, U.S. Navy . . . be retired
from active service and placed on the retired list on furlough pay,
in conformity with the provisions of § 1454 of the Revised
Statutes."
Thereafter, Lieutenant
Page 226 U. S. 437
Hannum was paid the compensation fixed by § 1593 of the Revised
Statutes, viz.: "One-half of the pay to which they [officers placed
on the retired list on furlough pay] would have been entitled if on
leave of absence on the active list."
Upon the contention that, in virtue of the opening clause of §
13 of the Personnel Act of March 3, 1899, 30 Stat. 1007, c. 413,
providing that officers of the line of the Navy shall receive the
same pay and allowances as officers of corresponding rank in the
Army, this action was brought to recover the difference between the
sums actually paid to Lieutenant Hannum and the pay fixed by
Rev.Stat. § 1274 of an officer of corresponding rank in the Army
when placed on the retired list --
viz., 75 percent of the
pay of the rank upon which retired.
The Court of Claims held that the assimilating clause of § 13 of
the Personnel Act applied only to officers on the active list of
the Navy, and did not repeal the prior law respecting the pay of
that particular class of officers compulsorily retired under §
1454, Revised Statutes, for incapacity not resulting from any
incident of the service. In other words, the court decided that
growing out of the differences between the distinct classifications
made for the retirement of Navy officers, and the pay allowed to
such retired officers depending upon the causes for retirement, and
the differences in this respect existing between statutory
regulations as to the retirement of Army officers, that the
provision of the Personnel Act had not repealed the specific
provisions as to the retirement of Navy officers and the retired
pay to which such officers were entitled. Applying the construction
which it thus gave to the statute, the court denied the relief
claimed, except for the sum of $31.42, balance of pay due for a
short period of active service after retirement, and the government
has acquiesced in such allowance. 43 Ct.Cl. 320.
We think the court was right in the view which it took
Page 226 U. S. 438
of the so-called Personnel Act. The provisions of §§ 8, 9, and
11 of the act not only created a new class of retired officers of
the Navy, but § 9 contains an express reference to "the provisions
of law now in force," relating to retirements in the Navy. As said
by counsel for the government:
"By those laws, the pay of all officers retired for age, or
incapacity resulting from long and faithful service, or wounds or
injuries received in the line of duty, or from sickness and
exposure therein, receive seventy-five percentum of the sea pay of
their rank at the time of retirement, while all other officers on
the retired list receive one-half the sea pay of the rank held by
them at the time of retirement (Rev.Stat. § 1588), except officers
retired on furlough pay for incapacity not of service origin, who
receive only one-half the pay to which they would have been
entitled if on leave of absence on the active list (sections 1454
and 1593)."
It thus being plain that the attention of Congress, when it
adopted the Personnel Act, was specially drawn to the existing
statutory regulations relating to the retirement of Navy officers
and to the causes for which retirement should be allowed, and the
amount of the retired pay of such officers, and that provision was
made as to these subjects varying radically from the system of Army
retirement, by providing different proportions of pay for different
causes of Navy retirement, it is not open, in reason, to hold that
Congress intended by the provision in question of the Personnel Act
to destroy the legislation which it sedulously incorporated and
made a part of that act. In other words, as the Personnel Act
itself emphasizes the plain intention of Congress not only not to
destroy the standards of retirement fixed for Navy officers, but,
on the contrary, to retain and add to those standards, as
distinguished from the standards of retirement fixed for the Army,
we think the claim here made was properly disallowed.
Page 226 U. S. 439
Nothing could more aptly illustrate the necessity for this
conclusion than by directing attention to the result which would
inevitably follow from taking another view. Thus, it may not be
doubted that the express object of the Personnel Act was to give a
right of retirement for long and distinguished services, for wounds
contracted in the course of the service, as distinguished from the
ordinary right to retire. And yet, if the construction of the
statute now urged were to be upheld, it would follow that an
assimilation was made by the Personnel Act not only between the pay
of officers on the active list of the Navy and those of the Army,
but also between officers of the Navy themselves, by putting on a
parity as to retirement and retired pay all officers of the Navy,
irrespective of the meritorious or nonmeritorious character of
their services, and despite the clear distinction in that regard
expressly provided for by the terms of the Personnel Act.
Affirmed.