1. The words, "after date of appointment" and "from such date,"
which occur in sec. 1556 of the Revised Statutes, fixing the annual
pay of passed assistant surgeons of the navy, refer not to the
original entry of the officer into the service as an assistant
surgeon, but to the notification by the Secretary of the Navy that
he has passed his examination for promotion to the grade of
surgeon, and will thereafter, until such promotion, be considered
as a passed assistant surgeon.
2. A passed assistant surgeoncy is an office, and the
notification of the Secretary of the Navy is a valid appointment to
it.
This was an action in the Court of Claims by Andrew M. Moore
against the United States to recover certain pay which he alleged
was due him as an officer in the navy.
That court found the following facts:
1. On the 12th of April, 1869, the claimant was appointed and
commissioned an assistant surgeon in the navy of the United
States.
2. On the 24th of February, 1874, after examination, he was
found qualified for promotion to the grade of surgeon. He was, on
the following day, notified by the Secretary of the Navy that the
report of the board of examiners, before whom he had appeared for
examination, was approved by the department, and that from that
date he would be regarded as a passed assistant surgeon, and from
that date up to the date of the institution of this suit, May 3,
1876, he received pay as passed assistant surgeon in the first five
years after appointment as such.
3. From the 12th of April, 1874, till May 3, 1876, the
claimant's service was as follows: on-shore duty, four hundred and
thirty eight days, for which he was paid at the rate of $1,800 per
annum; on leave or waiting orders, three hundred and twenty three
days, for which he was paid at the rate of $1,500 per a num.
Upon the foregoing facts, the court, being equally divided in
opinion, held
pro forma, for the purposes of an appeal,
that the claimant was entitled to the rate of pay established by
law for a passed assistant surgeon, after five years from the date
of
Page 95 U. S. 761
appointment -- that is to say, when on shore duty, at the rate
of $2,000 per annum, and when on leave or waiting orders, at the
rate of $1,700 per annum; and that the claimant was therefore
entitled to receive, for the seven hundred and sixty one days
specified, the additional sum of $409.5, for which judgment was
entered.
The United States appealed.
Mr. JUSTICE SWAYNE delivered the opinion of the Court.
On the 12th of April, 1869, the appellee was appointed an
assistant surgeon in the Navy of the United States. On the 24th of
February, 1874, he was examined for promotion to the grade of
surgeon. On the following day, he was notified by the Secretary of
the Navy that the report of the board of examiners was approved by
the department, and that from that date he would be regarded as a
passed assistant surgeon. From that time up to the institution of
this suit, he received the pay fixed by law for passed assistant
surgeons during the first five years after their appointment as
such.
The statutes of the United States provides as follows:
"The active list of the medical corps of the navy shall consist
of fifteen medical directors, fifteen medical inspectors, fifty
surgeons, and one hundred assistant surgeons."
Rev.Stat., sec. 1368.
"No person shall be appointed surgeon until he has served as an
assistant surgeon at least two years on board a public vessel of
the United States at sea, nor until he has been examined and
approved for such appointment by a board of naval surgeons
designated by the Secretary of the Navy."
Id., sec. 1370.
"The commissioned officers and warrant officers on the active
list of the navy of the United States, and the petty officers,
seamen, ordinary seamen, firemen, coalheavers, and employees in the
navy, shall be entitled to receive annual pay at the rates herein
stated after their respective designations. . . . Passed assistant
surgeons, passed assistant paymasters, and passed assistant
engineers, during the first five years after date of appointment,
when at sea, $2,000; on shore duty, $1,800; on leave or waiting
orders, $1,500; after
Page 95 U. S. 762
five years from such date, when at sea, $2,200; on shore duty,
$2,000; on leave or waiting orders, $1,700. Assistant surgeons,
assistant paymasters, and second assistant engineers, during the
first five years after date of appointment, when at sea, $1,700; on
shore duty, $1,400; on leave or waiting orders, $1,000; after five
years from such date, when at sea, $1,900; on shore duty, $1,600;
on leave or waiting orders, $1,200."
Id., sec. 1556.
The appellee claims that the phrases, "after date of
appointment" and "from such date," touching passed assistant
surgeons, refer to the date of his original appointment, when he
entered the service as assistant surgeon, and not to the time of
the notification by the Secretary of the Navy that he would
thereafter be regarded as a passed assistant surgeon. The question
arising from these conflicting constructions is the one presented
for our determination. The government entertains the latter view,
and we think correctly. It has always heretofore obtained in the
Navy Department.
The place of passed assistant surgeon is an office, and the
notification by the Secretary of the Navy was a valid appointment
to it.
United States v.
Hartwell, 6 Wall. 385; Const.U.S., art. 2, sec.
2.
The context in which the phrases occur shows clearly that they
relate to the appointment of passed assistants, and not to that of
assistants who have not passed. The former are there expressly
named and provided for. The latter are neither named nor alluded
to. They belong to distinct classes, and separate and distinct
provision is made for the pay of each.
According to the construction contended for by the appellee, if
a passed assistant did not become such until ten years after he
entered the service as an assistant, he would receive pay five
years as a passed assistant before he reached that grade. This is a
necessary consequence of the appellee's proposition, and sets its
error in a strong light. Such a result could not have been intended
by Congress. It would make the law in all such cases retrospective.
A statute is never to be so construed as to have this effect, if it
can be reasonably avoided. The presumption, until rebutted, is the
other way. Sedgw.Const. 161 and notes.
Page 95 U. S. 763
The construction given to a statute by those charged with the
duty of executing it is always entitled to the most respectful
consideration, and ought not to be overruled without cogent
reasons.
Edwards v.
Darby, 12 Wheat. 210;
United
States v. State Bank of North Carolina, 6 Pet. 29;
United States v.
MacDaniel, 7 Pet. 1. The officers concerned are
usually able men, and masters of the subject. Not unfrequently they
are the draftsmen of the laws they are afterwards called upon to
interpret.
The appellee insists that he was not appointed by the Secretary
of the Navy, because sec. 1369 of the Revised Statutes requires
that "all appointments in the medical corps shall be made by the
President, by and with the advice and consent of the Senate."
It is retorted, in effect, in behalf of the government, that
this proposition, if sound, proves too much for the appellee's
case, and that, if there was no appointment by the Secretary, then
the appellee could not be a passed assistant surgeon, because, in
addition to the Secretary's notification, he was not nominated by
the President and confirmed by the Senate.
There is certainly as much foundation for the second theory as
for the first one; but neither is correct. The place has every
ingredient of an office, and, as we have seen, the appellee was
legally appointed to it. The difficulty has arisen from the
collators not having been careful to harmonize the language of the
sections. Hence the seeming conflict. But the intention of Congress
is clear, and that intention constitutes the law. A thing may be
within the letter of a statute, and not within its meaning, and it
may be within the meaning, though not within the letter.
Slater
v. Cave, 3 Ohio St. 85; 9 Bac.Abr., pp. 244, 247, tit, Statute
I, 5;
United States v.
Babbit, 1 Black 55. In cases like this, the
construction should be such that both provisions, if possible, may
stand. The clause in question was obviously as much intended to
have effect as the section with which it is in seeming conflict. It
may well be held to be an exception, though not so expressed, to
the universality of the language of the latter. This obviates the
difficulty, harmonizes the provisions, and gives effect to both. We
cannot doubt that the phrases, "after date of appointment" and
Page 95 U. S. 764
"from such date," have reference to the action of the action of
the Secretary, and to nothing else.
Judgment reversed, and cause remanded with directions to
dismiss the petition.
