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special duty, besides allowances. The supposed "pay for rank" cannot be the "pay and allowances" intended by the Navy Personnel Act.
As to mounted pay the defense is based upon a misunderstanding. Section 1301, Army Regulations, under which aids to major-generals draw mounted pay provides mounted pay whether the officer is or is not mounted. Section 1272, Rev. Stat., gives forage to officers only for horses actually kept by them in service, but mounted pay is granted without regard to the question whether an officer has or has not a horse in service.
Engineer officers of the Army receive mounted pay although they in time of peace are to superintend river and harbor improvements and do not require horses.
The Navy Personnel Act gives to naval officers the pay of army officers "provided by or in pursuance of law." This includes not only the pay granted by direct statute but the pay allowed under the Army Regulations, in pursuance of law.
The equality of pay between the Army and Navy as fixed by the Personnel Act is intended to be a substantial equality, which cannot exist unless under equivalent conditions in the two branches the same pay is received. Army "pay and allowances" is made up of many different items. All these items (except forage) must be paid to the naval officer, or he will not have "the same pay and allowances" as given to the army officer.
MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.
The decision of this case turns upon the answers to two questions arising under the facts stated. First, was the claimant entitled to the extra two hundred dollars, the same as allowed an aid to a major-general in the Army? Second, was he entitled to the "mounted pay" as allowed to the majorgeneral's aid?
The Navy Personnel Act, so called, has been so frequently before this court in recent cases as to require little general discussion of its objects and purposes. Rodgers v. United States, 185 U. S. 83; White v. United States, 191 U. S. 545; Gibson v. United States, 194 U. S. 182; United States v. Thomas, decided at this term, 195 U. S. 418.
As pointed out in the opinion in the last-named case, while the act of July 16, 1862, Revised Statutes, § 1466, had fixed the relative rank of army and naval officers, no provision for similarity of pay was made until the passage of the Navy Personnel Act, 30 Stat. 1004, which act, while providing against a reduction of then existing pay of commissioned officers of the Navy, undertook to equalize the pay of naval officers (theretofore generally below that paid to officers of corresponding rank in the Army) with that of officers in the Army of equal rank. Under the act of July 16, 1862, rear-admirals ranked with major-generals. Section 13 of the Navy Personnel Act provides:
"That after June 30, 1899, commissioned officers of the line of the Navy and of the Medical Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army."
The claimant, as lieutenant of the junior grade in the Navy, corresponded in rank with a first lieutenant in the Army (Revised Statutes, § 1466), the rank of "master," named in § 1466, being subsequently changed to lieutenant, junior grade, 22 Stat. 472. By section 1098 of the Revised Statutes it is provided that each major-general shall have three aids, who may be chosen by him from the captains or lieutenants of the Army. First lieutenants, officers of the Army, under section 1261 of the Revised Statutes, are entitled to pay as follows:
"The officers of the Army shall be entitled to pay herein stated after their respective designations: First lieutenant, mounted: sixteen hundred dollars a year; first lieuten
ant, not mounted: fifteen hundred dollars a year;
to major-general: two hundred dollars a year, in addition to the pay of his rank."
For each five years of service it is provided in section 1262: "There shall be allowed and paid to each commissioned officer below the rank of brigadier-general, including chaplains and others having assimilated rank or pay, ten per centum of their current yearly pay for each term of five years service."
The contention of the Government is that, while the pay of naval officers is made to correspond with that of army officers of like rank, the naval officer assigned to duty as aid may not receive the $200 additional pay, as it is not pay on account of rank, but on account of service. But we think this is too narrow a construction of the terms of the act, in view of its intent and purpose. For while we 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. An aid to a rear-admiral renders services similar to those rendered by an aid to a major-general in the Army. The naval aids are appointed under paragraphs 343 and 345 of the Naval Regulations of 1895, which are:
"SEC. 343. The chief of staff, flag lieutenant, clerk and aids shall constitute the personal staff of a flag officer.”
"SEC. 345. (1) A flag officer may select any officer of his command to serve as flag lieutenant or clerk, provided his grade accords with the rules laid down in Article 344. (2) He may also, when necessary, select other line officers junior to the flag lieutenant to serve on his personal staff as aids, but shall not assign naval cadets to such duty."
They are selected for like service, and it is admitted that there would have been reason for a like express statutory provision in their favor as to compensation. The sum of $200 is allowed to an aid to a major-general in addition to the regular pay of his rank. It is allowed as payment for the additional service imposed. Bearing in mind the purpose of the act to give the same compensation to corresponding officers of the
Army and Navy, and that it is expressly provided that officers of the Navy shall receive the same pay and allowances, except for forage, as are or may be provided by law for officers of the Army of corresponding rank, we think it does no violence to, but rather carries out, the purpose of Congress to construe this section so as to give to an aid of a rear-admiral, in addition to the regular pay of his rank, pay similar to that allowed an aid to a major-general. We reach the conclusion that the Court of Claims was right in its allowance of this item.
The solution of the question as to mounted pay depends upon whether such pay is given to an officer whose duty requires him to be subject to mounted duty, or whether it is a term used to designate the pay of aids whether they are required to render mounted service or not. Section 1301 of the Army Regulations of 1895 provides:
"The following officers, in addition to those whose pay is fixed by law, are entitled to pay as mounted officers: Officers of the staff corps below the rank of major, officers serving with troops of cavalry, officers of a light battery duly organized and equipped, authorized aids duly appointed, officers serving with companies of mounted infantry, and officers on duty which, in the opinion of the department commander, requires them to be mounted and so certified by the latter on their pay vouchers." The contention of the appellee is that aids, duly appointed under this section, serving in the Army, are entitled to this compensation, whether required to be mounted or not. And further, that the language "pay as mounted officers" is used in the paragraph rather with a view of fixing the amount to be paid than to characterize the service required. It is doubtless true that the terms mounted pay may be used in this sense. Richardson v. United States, 38 C. Cl. 182, is cited as an illustration of this use of the phrase. In that case it was held that an assistant surgeon in the Navy was entitled to mounted pay under the Navy Personnel Act, because an assistant surgeon in the Army was entitled thereto. Under section 1168 of the Revised Statutes, an assistant surgeon in the Army ranked
with a lieutenant of cavalry for the first three years of service, and with a captain of cavalry after the expiration of that period. Under these provisions the assistant surgeon was held entitled to mounted pay.
We are further cited to a decision of the Comptroller of the Treasury, 10 Comp. Dec. 523, holding that officers of the Pay Corps of the Navy are entitled to mounted pay, as officers of the Pay Corps of the Army are given by law cavalry or mounted pay. It may well be that in these cases mounted pay was descriptive of the compensation to be paid, and an officer may therefore be entitled to it, although he renders no mounted service.
But the right of mounted pay to an aid to a rear-admiral, assuming that the Navy Personnel Act assimilates the compensation of an admiral's aid to that of an aid to a majorgeneral in the Army, depends upon whether an aid to a majorgeneral under section 1301 of the Army Regulations above quoted, although he renders no mounted service, and may not be required to be mounted, is entitled to such compensation. We think sections 1302 and 1303 of the Army Regulations may also be noticed in this connection. They are:
"SEC. 1302. Department commanders will announce, in orders, the authority obtained from the Secretary of War for mounting companies of infantry, giving the date from which such mounted service commences, and termination of the same.
"SEC. 1303. Muster rolls and returns of light batteries and companies of mounted infantry will show the number, date and source of order authorizing mounted service. The pay accounts of officers charging mounted pay will contain the same information. A copy of the order will be attached to the first muster rolls prepared after the battery or company has been equipped or mounted; a copy of the order discontinuing such service will appear on the first muster rolls prepared after its discontinuance."
We think these sections, with § 1301 of the Army Regulations above quoted, read in the light of the statute (Rev. Stat.