Prior to the enactment in the Act of February 25, 1871, 16 Stat.
431, now Rev.Stat. § 12, that "whenever an act is repealed, which
repealed a former act, such former act shall not thereby be revived
unless it shall he expressly so provided," it was the general rule
of law that the repeal of a repealing act restored the law as it
was before the passage of the latter act without formal words for
that purpose, unless otherwise provided either in the repealing act
or by some general statute.
Before the passage of the Act of March 3, 1835, forbidding it, 4
Stat. 757, it was lawful for the Secretary of the Navy to make
allowances out of appropriations in gross to officers of the Navy
beyond their regular pay, for quarters, furniture, lights, fuel
&c., and the repeal of that act by the Act of April 17, 1866,
14 Stat. 33, restored the right to make such allowances, and such
as were made by him and were settled at the Treasury Department,
between the date when the latter act went into effect and the
passage of the Act of February 25, 1871, 16 Stat. 431, were made in
accordance with the executive construction of the statutes
respecting the navy and the Navy Department prior to 1835, and this
Court will not at this late day question their validity.
The contemporaneous construction of a statute by the Executive
Department charged with its execution is entitled to great weight,
and ought not to be overturned unless clearly erroneous.
It is not decided (1) whether, after settlement of an account at
the Treasury, it can he reopened by the accounting officers on the
ground of error arising only from mistake of law; nor (2) whether
errors in accounts with the United States, stated closed and
settled by payment, can be corrected otherwise than by regular
judicial proceedings instituted by the United States.
Page 120 U. S. 53
The case is stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The appellee, Philbrick, having served as a carpenter in the
navy from July 8, 1861, to March 14, 1866, and again continuously
after November 12, 1869, filed with the Fourth Auditor of the
Treasury his claim for the benefits of the Acts of Congress of
March 3, 1883, providing, among other things, that
"All officers of the navy shall be credited with the actual time
they may have served as officers or enlisted men in the regular or
volunteer army or navy, or both, and shall receive all the benefits
of such actual service in all respects in the same manner as if all
said service had been continuous, and in the regular navy, in the
lowest grade having graduated pay held by such officer since last
entering the service."
22 Stat. 473. The claim, having been passed by the Fourth
Auditor, was forwarded to the Second Comptroller of the Treasury,
who is the reviewing officer charged with the examination of all
accounts of this class. The latter officer, while recognizing that
the appellee had a valid claim under the act of 1883, deducted from
the amount which the Fourth Auditor had ascertained to be due the
sum of $214.88. That amount was made up of two items, $169.50 and
$45.38.
In respect to the item of $169.50, which is the only one
disputed on this appeal, the Second Comptroller held that that sum
had, by mistake of law, been improperly allowed and paid to
appellee for commutation of quarters, furniture, lights, and fuel
from November 12, 1869, to July 1, 1870, although such payment was
in conformity with a general order issued by the Secretary of the
Navy on the 12th of May, 1866, in reference to allowances to
officers in that branch of the public service.
It is, however, insisted, on behalf of the United States,
that
Page 120 U. S. 54
that order was unauthorized by law and void, and consequently
that the amount allowed under it to appellee was properly
chargeable against his claim for pay under the act of 1883.
So far as we are aware, the first act of Congress providing for
special allowances or compensation to officers, seamen, and marines
beyond their regular pay, was that of April 18, 1814. The second
section of that act authorized the President
"to make an addition, not exceeding twenty-five percent, to the
pay of the officers, midshipmen, seamen, and marines engaged in any
service, the hardships or disadvantages of which shall, in his
judgment, render such addition necessary."
3 Stat. 136, c. 83. That section was, however, ever, repealed by
the Act of February 22, 1817. 3 Stat. 345, c. 13. The reasons which
led to the withdrawal of this power from the President are not
disclosed in any public document to which our attention has been
called. The practice which prevailed in the Navy Department for
many years after the passage of the act of 1817 in reference to
special allowances to or for the benefit of naval officers beyond
their regular pay -- of which practice Congress was fully informed
-- tends to show that the repeal of the act of 1814 was not
intended as a prohibition of allowances of every kind. In the
rules, regulations, and instructions prepared by the Board of Navy
Commissioners, with the consent of the Secretary of the Navy, and
published in 1818, a copy of which was transmitted to Congress by
President Monroe on the 20th of April of that year, American State
Papers, Class VI, "Naval Affairs," p. 510 -- will be found
provisions for certain allowances, graduated according to the
character of the vessel, or the rank of the officer in charge. In
the "Rules of the Navy Department regulating the civil
administration of the Navy Department," prepared under the
supervision of Secretary Woodbury, and by him published in 1832 in
what is known as the "Red Book" are provisions in reference to
allowances for cabin furniture, chamber money, furniture of
officers' houses at yards fuel, lights, servants, &c. Chapter
10. Besides, the naval appropriation acts for many years before and
after 1832, contained items in gross for all the objects
Page 120 U. S. 55
covered by these allowances; but none of them contained
directions as to the manner in which the sums appropriated should
be apportioned. The absence of such directions was no doubt due to
the fact, known to Congress, that the amounts annually appropriated
were used or apportioned by the Navy Department as indicated in the
rules prescribed by the Secretary.
That these allowances were habitually made, and that Congress
was aware of this practice, appears from a report to President
Monroe by the Secretary of the Navy, transmitted to Congress on the
4th of March, 1822. That report was accompanied by a statement
showing the number and grade of the officers attached to each navy
yard or station, with the amount allowed each for pay, subsistence,
emoluments, or extra compensation. The Secretary in his report
says:
"The allowances to officers attached to the navy yards have, I
understand, been made to them since the commencement of these
establishments, and vary in some instances according to the expense
of living, house rent, etc., in the different places at which they
are located. The pay and rations authorized by law to officers are
understood to be for their maintenance on board ship, in which they
are accommodated with rooms, fuel, candles, etc.; but when placed
on shore at naval stations, they have not such accommodations. . .
. The allowances now made are regulated by a table, making them all
equal, or as nearly so as practicable. . . . The allowances have in
most instances been made by the auditor in the settlement of
accounts, without any reference to this department; he considering
himself authorized so to do by the usage of the service, from the
commencement of the naval establishment, with the approbation and
sanction of the Secretary of the Navy."
American State Papers, Class VI, "Naval Affairs," Vol. 1, p.
797. The subject was subsequently brought to the attention of
Congress by the report of the Secretary of the Navy to the Senate,
January 1, 1825, American State Papers, Naval Affairs, Vol. 2, 40;
by the letter of the Secretary to the Chairman of the House
Committee on Naval Affairs, February 2, 1826,
ib., 626; by
the communication of the Fourth
Page 120 U. S. 56
Auditor of the Treasury, May 28, 1830, which was transmitted to
Congress,
ib., Vol. 3, p. 685, the latter being
accompanied by a table showing every kind of allowance made under
the regulations and orders of the Navy Department. The same facts
are disclosed by the report of Amos Kendall, the Fourth Auditor of
the Treasury, February 5, 1835, to the Secretary of the Navy, and
transmitted by the latter to the House of Representatives in
conformity with a resolution of that body. The latter report
embodies a statement in detail showing the regular pay, rations,
and allowances of all commissioned officers of the navy according
to the laws and regulations then in force. Ex.Doc. 192, H.R. Navy
Department, 23d Congress, Second Session.
Thus matters stood until the passage of the Act of March 3,
1835, regulating (and increasing) the pay of the navy, by which
allowances of every description were prohibited. The second section
of that act provided that
"No allowance shall hereafter be made to any officer in the
naval service of the United States for drawing bills, for receiving
or disbursing money, or transacting any business for the government
of the United States, nor shall be allowed servants, or pay for
servants, or clothing or rations for them, or pay for the same; nor
shall any allowance be made to him for rent of quarters, or to pay
rent for furniture, or for lights or fuel or transporting baggage.
It is hereby expressly declared that the yearly allowance provided
in this act is all the pay, compensation, and allowance that shall
be received, under any circumstances whatever, by any such officer
or person, except for traveling expenses when under orders, for
which ten cents per mile shall be allowed."
4 Stat. 757.
This prohibition of allowances continued in force until the Act
of April 17, 1866, making appropriations for the naval service. The
fourth section of that act provided
"That so much of the second section of an act entitled 'An act
to regulate the pay of the navy of the United States,' approved
March 3, 1835, as prohibits any allowance to any officer in the
naval service to rent of quarters, or for furniture, or for lights
or fuel, or transporting baggage, and all acts or parts
Page 120 U. S. 57
of acts authorizing the appointment of navy agents, be, and the
same are hereby, repealed."
14 Stat. 33, 38, c. 45.
After the passage of that act, Secretary Welles issued the order
which the government now assails as unauthorized by law. It is as
follows:
"
[General Order, No. 75]"
"NAVY DEPARTMENT, May 23, 1866"
"Congress having, in view of the call for increased compensation
for officers of the navy, repealed the law which prohibited any
allowance to them 'for rent of quarters, or to pay rent for
furniture, or for lights and fuel,' etc., the Department, in order
to prevent a recurrence of the irregularities, abuses, and
arbitrary allowances which occasioned the prohibition, deems it
proper to establish a fixed rate of compensation in lieu of the
extra allowances which were prohibited by the law now repealed.
Accordingly, from and after the first day of June proximo, officers
who are not provided with quarters on shore stations will be
allowed a sum equal to thirty-three and one-third percent of their
pay in lieu of all allowances, except for mileage or traveling
expenses under orders, and those provided with such quarters,
twenty percent of their pay in lieu of said allowances."
"The Act of March 3, 1835, having increased the pay of
midshipmen and mates, the allowances hereby authorized will not be
extended to them."
"GIDEON WELLES"
"
Secretary of the Navy"
This order was no doubt issued in the belief that the legal
effect of the repeal of that part of the act forbidding allowances
"for rent of quarters, or for furniture, or for lights or fuel or
transporting baggage," was to reinvest the Department with the
authority it had prior to the act of 1835. That act, upon its face,
recognized the fact that such allowances had theretofore been made,
and its object was to forbid them in the future. When the act of
1866 simply removed the prohibition contained in the act of 1835,
the effect was, without formal
Page 120 U. S. 58
words for that purpose, to restore the law as it was before the
passage of the latter act. Such is the rule where the effect of the
repealing statute is not by its own terms, or by some general
statute, limited to the abrogation of the act repealed. 1
Blackstone 90; 1 Kent.Com. 460; Bouvier's Bacon's Abridgement Title
Statute, D;
Commonwealth v. Churchill, 2 Met. 122;
Van
Denburgh v. Village of Greenbush, 66 N.Y. 1. The general rule
was never modified by Congress until the passage of the Act of
February 25, 1871, now § 12 of the Revised Statutes, which declared
that, "whenever an act is repealed which repealed a former act,
such former act shall not thereby be revived, unless it shall be
expressly so provided." 16 Stat. 431, c. 71. It is scarcely
necessary to say that the act of 1871 cannot control the present
case, for the order of Secretary Welles, and the settlement under
it with Philbrick, both occurred before its passage. And for the
same reason, this case is unaffected by the 4th section of the Act
of July 15, 1870 (now § 1558 of the Rev.Stat.), which provides that
the pay prescribed therein for officers of the navy shall be their
full and entire compensation, and that (with certain exceptions not
material to be here noticed)
"no additional allowance shall be made in favor of any of said
officers on any account whatever, and all laws or parts of laws
authorizing any such allowances shall, on the first of July, 1870,
be repealed."
16 Stat. 332, c. 295.
Notwithstanding the order of Secretary Welles was in harmony
with the long established practice of the Navy Department for many
years prior to the passage of the act of 1835, it is contended that
such a practice never has had support in an act of Congress and
that, without legislative sanction, the Secretary of the Navy was
without authority to establish an arbitrary rule for the
distribution of moneys appropriated in gross for specified objects
connected with the naval service, and could in no event make
allowances beyond the actual cost incurred by the officer in whose
behalf they were made. It is a sufficient answer to these
propositions to say that the power of the Secretary to establish
rules and regulations for the apportionment of the sums set apart
by Congress, in gross,
Page 120 U. S. 59
for such objects as those involved in the allowances here in
dispute having been frequently exercised prior to 1835, without
objection by the legislative branch of the government, and since
that act, as well as the one of 1866, is an implied recognition of
the practice established in the Navy Department prior to 1835, we
are not disposed at this late day, to question the validity of the
order of May 23, 1866. That order was in accordance with the
construction which the executive department, for many years prior
to 1835, placed upon the various statutes relating to the naval
establishment and defining the powers of the Secretary of the Navy.
A contemporaneous construction by the officers upon whom was
imposed the duty of executing those statutes is entitled to great
weight; and since it is not clear that that construction was
erroneous, it ought not now to be overturned.
See Hahn v.
United States, 107 U. S. 405,
and
Brown v. United States, 113
U. S. 571, and authorities cited in each case.
As these views lead to an affirmance of the judgment, it is
unnecessary to consider whether, after the account of the appellee
for commutation of quarters, furniture, lights, and fuel, between
November 12, 1869, and June 30, 1870, had been finally stated and
closed, and after he had been paid the amount allowed him, the
Second Comptroller had authority to open it upon the ground of
error therein arising from mere mistake of law; nor need we
determine whether errors in accounts so stated, closed and settled
by payment, could be corrected otherwise than by regular judicial
proceedings instituted for that purpose by the United States
against the appellee.
Judgment affirmed.