Section 5 of the Act of April 16, 1908, 35 Stat. 61, c. 345,
providing for rank and pay of retired officers of the
Revenue-Cutter Service
held not to give in this case an
additional step forward to a retired officer who had already been
advanced one step gratuitously.
The Court in this case follows the construction of the statute
by the officers of the Treasury Department.
46 Ct.Cl. 393 reversed.
The facts, which involve the construction of the Act of April
16, 1908, and the amount of pay due thereunder to an officer in the
Revenue-Cutter Service, are stated in the opinion.
Page 227 U. S. 487
Memorandum opinion, by direction of the Court, by MR. JUSTICE
LURTON:
This is an appeal from a judgment of the Court of Claims,
allowing the executor of the late Captain Thomas Mason the
difference between his pay as retired junior captain in the revenue
cutter service and the pay of a senior captain in the same service,
for the time between the passage of the Act of April 16, 1908, 35
Stat. 61, c. 145, and his death September 10, 1910.
The provision of the fifth section of the act referred to is in
these words:
"That any officer of the revenue-cutter service with a
creditable record, who served during the Civil War in the land or
naval forces of the United States, shall, when retired, have the
rank and receive three-fourths of the duty pay and increase of the
next higher grade, and the provisions of this section shall apply
to officers of the said service now on the retired list."
Mason had served with credit during the Civil War in the naval
service of the United States. He was therefore within the provision
of the section set out, and the only question is whether, under
that provision, his advance in grade and in pay is to be made upon
the grade he held when he was retired, or upon the grade and pay he
had when this act was approved.
He had been retired as of May 3, 1895, while holding the rank of
first lieutenant in the revenue-cutter service, with one-half of
the pay of a first lieutenant on the active list, under the Act of
March 2, 1895, 28 Stat. 920, c. 189. By the Act of April 12, 1902,
ยง 9, 32 Stat. 101, c. 501, he and all other officers upon the
retired or permanent waiting list were give seventy-five percent of
the duty pay of the rank they had when retired. By a special act of
February 25, 1905, 33 Stat. 813, c. 796, he was advanced "one grade
from first lieutenant
Page 227 U. S. 488
to that of captain" for meritorious acts while in the service of
the Navy and of the revenue-cutter service of the United States,
but with no increase in pay by the advance in grade thereby
authorized.
The only trouble about the meaning of the act arises out of the
exceptional fact that the decedent had, after his retirement, been
advanced one grade in rank, but without any advance in pay by
reason of that advancement. The act obviously meant to provide that
every revenue-cutter officer then on the active list should, upon
retirement, advance one step in grade, with three-fourths of the
duty pay of the advanced grade. The same benefit was also extended
to officers already on the retired list. But, in both cases, the
advance in grade is to be based upon that held at the date of
retirement, with three-fourths of the pay of the advanced
grade.
The claim that the decedent's advance in grade and pay is to be
upon the grade to which he had been advanced without additional pay
is without merit. To concede it would be to conclude that Congress
intended to advance him not upon the grade he had at retirement,
but upon the gratuitous advancement, and that Congress purposed to
advance him one other step over that which he had at retirement,
and two steps in pay. The basis of the gratuity of Congress was the
grade and pay at retirement. This was the construction placed upon
the act by the Auditor of the Treasury Department and the
Comptroller of the Treasury.
Judgment reversed and case remanded, with direction to
dismiss the petition.