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cused to obtain a pardon or commutation from the Governor of the State before his execution.
Nor was the punishment, in any substantial sense, increased or made more severe by substituting close confinement in the penitentiary prior to execution for confinement in the county jail. It is contended that “close confinement” means “solitary confinement," and Medley's Case, 134 U. S. 160, is cited in support of the contention that the new law increased the punishment to the disadvantage of the accused. We do not think that the two phrases import the same kind of punishment. Although solitary confinement may involve close confinement, a criminal could be kept in close confinement without being subjected to solitary confinement. It cannot be supposed that any criminal would be subjected to solitary confinement when the mandate of the law was simply to keep him in close confinement.
Again, it is said that the law in force when the crime was committed only required confinement, whereas the later statute required close confinement. But this difference of phraseology is not material. “Confinement” and “close confinement” equally mean such custody, and only such custody, as will safely secure the production of the body of the prisoner on the day appointed for his execution.
The objection that the later law required the execution of the sentence of death to take place within the limits of the penitentiary rather than in the county jail, as provided in the previous statute, is without merit. However material the place of confinement may be in case of some crimes not involving life, the place of execution, when the punishment is death, within the limits of the State, is of no practical consequence to the criminal. On such a matter he is not entitled to be heard.
The views we have expressed are in accord with those announced by the Supreme Court of North Dakota. State v. Rooney, 12 N. Dak. 144, 152.
We are of opinion that the law of 1903 did not alter the
situation to the material disadvantage of the criminal, and, therefore, was not ex post facto when applied to his case in the particulars mentioned.
UNITED STATES v. CROSLEY.
APPEAL FROM THE COURT OF CLAIMS.
No. 96. Submitted December 9, 1904.-Decided January 23, 1905.
While the court may not add to or take from the terms of a statute, the
main purpose of construction is to give effect to the legislative intent
as expressed in the act under consideration. The Navy Personnel Act undertook to equalize the pay of naval officers
with those officers of the Army of equal rank as to duties properly required of a naval officer, and it has no operation to provide pay for
services peculiar to the Army. A lieutenant in the Navy serving as aid to a rear-admiral is entitled to the
additional two hundred dollars allowed to a lieutenant serving as aid to a major-general under § 1261, Rev. Stat., but he is not entitled to the mounted pay allowed to the army lieutenant serving as such aid under $ 1301, Army Regulations.
This case was tried in the Court of Claims upon a petition filed to recover pay for services in the United States Navy, rendered by the defendant in error, while he was a lieutenant of the junior grade and acting as aid to Rear-Admiral Watson, then serving with the rank of rear-admiral in the nine higher numbers of that grade, and, under section 1466 of the Revised Statutes, entitled to rank with a major-general in the Army. The claimant alleges that he should have received from the first day of July, 1899, to the eighth day of September,
Statement of the Case.
Pay of a first lieutenant in the Army, being the grade
corresponding to lieutenant, junior grade, in the Navy, under Revised Statutes, $ 1261.
$1,500 Longevity pay under Revised Statutes, $ 1262, for second five years of service....
150 Pay as aid to rear-admiral of corresponding grade to
major-general, under Revised Statutes, $ 1261... 200 Mounted pay due under Army Regulations of 1895,
paragraph 1301, to “authorized aids duly appointed” 100 Longevity pay upon the last two items under Revised Statutes, $ 1262.
That from September 9, 1899, to September 8, 1900, he was
300 Pay as aid to rear-admiral of corresponding grade to
major-general, under Revised Statutes, § 1261.... 200 Mounted pay due under Army Regulations of 1895, paragraph 1301..
100 Longevity pay on the last two items under Revised Statutes, $ 1262.
He received pay during the period in controversy at the rate of $1,800 per annum, being from July 1, 1899, to September 8, 1899, the rate of pay granted by statute, Rev. Stat. § 1556, to a lieutenant, junior grade, at sea during his first five years in that rank, and for the period from September 9, 1899, to September 8, 1900, being the rate fixed by Revised Statutes, § 1261, for a first lieutenant not mounted, with the longevity allowance of the statute, $ 1262, for the third five years of service, and he claims that, in addition to the amount allowed,
Argument for the United States.
he is entitled to pay or allowance as aid to a rear-admiral; also, mounted pay due for such service, with the longevity pay arising from the items in question. In all, he claims the sum of $394.
The Court of Claims upon the hearing made the following findings of fact:
“The claimant entered service in the United States Navy on the 9th day of September, 1889, and from the 1st day of July, 1899, until the 8th day of September, 1900, was a lieutenant, junior grade, in the Navy, and an aid to Rear-Admiral J. C. Watson; Rear-Admiral Watson was at that time one of the nine higher numbers of the grade of rear-admiral, and was entitled under section 1466 of the Revised Statute to rank with a major-general in the United States Army. During said period claimant was paid at the rate of $1,800 a year.”
And as conclusions of law held:
“Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant recover judgment of and from the United States in the sum of three hundred and ninetyfour dollars ($394)."
From the judgment of that court the United States appeals to this court.
Mr. Assistant Attorney General Pradt and Mr. Special Attorney John Q. Thompson for the United States:
It is a question of rank which determines the pay and not the character of the service which the officer performs. The position of aid to either a major-general or to a rear-admiral is not a distinct rank, within the meaning of the law. The Navy Personnel Act, very likely by oversight, leaves an aid to a rear-admiral in exactly the same position as it found him, with no provision for his compensation for his services as such aid.
He is not entitled to mounted pay by reason of acting as aid to a rear-admiral if the court should find that he is not entitled to $200 pay as aid, since the mounted pay is claimed as the pay
of an aid to a major-general. But it may be contended that he should rank for the purpose of pay with a first lieutenant mounted, and that therefore he is entitled to mounted pay. The increase in pay for mounted service follows the condition where the officer is compelled to keep a horse in order to the proper performance of his duties. No such condition is possible in sea service in the Navy. The right to mounted pay depends wholly upon the condition of mounted service, or a kind of service that requires the officer performing the same to be mounted, and since claimant was in a position where he could not have performed mounted service, and where such service was palpably inappropriate to his situation, it does not come within the conditions which entitle him to mounted pay.
Mr. George A. King and Mr. William B. King for appellee:
Officers of the Navy are granted by the Personnel Act “the same pay and allowances” as officers of the Army. These words are used to describe the “entire compensation" of an officer of the Army. Emory v. United States, 19 C. Cl. 266, and the evident purpose is that with the exception named in the act (forage) naval officers shall have what army officers receive. There is no reason for the discrimination attempted to be made by the United States between pay for rank and pay for special duty and it clearly violates this principle of equality of pay. Section 1261, Rev. Stat., gives to the rank of first lieutenant two different rates of pay, "mounted” and “not mounted.” These rates of pay vary under Section 1262 according to the length of service of these officers. They may draw additional pay while serving as aids to brigadier or major-generals. On foreign service, after May 26, 1900, they may receive ten per cent increase of pay under the acts of May 26, 1900, and March 2, 1901, 31 Stat. 211, 903. Section 1265, Rev. Stat., adds another rate of pay to all officers, that is, half pay while on leave beyond thirty days a year.
First lieutenants in the Army receive pay made up of grade pay, longevity pay, foreign duty pay, mounted pay or pay for