[208 U.S. 32, 33] Solicitor General Hoyt, Assistant Attorney General Van Orsdel, and Mr. John Q. Thompson for appellant.
Messrs. George A. King and William B. King for appellee.
Mr. Justice Day delivered the opinion of the court:
This case is an action in the court of claims, brought by William G. Miller, a lieutenant in the Navy, and who served as flag lieutenant on the personal staff of Rear Admiral Kautz from July 1, 1899, to March 2, 1900, for which period he claims that he is entitled to recover pay at the additional rate of $200 a year, as an aid to the rear admiral, and, secondly, and additional sum for longevity increase, based upon this additional allowance. The facts were found by the court of claims and judgment rendered in favor of the claimant upon both branches of his claim. 41 Ct. Cl. 400. From this judgment the United States appeals.
It is the contention of counsel for the appellee, claimant below, that this case is ruled by the decision of this court in United States v. Crosley, 196 U.S. 327 , 49 L. ed. 497, 25 Sup. Ct. Rep. 261, upon both branches.
From the findings of fact, it appears that the claimant was a lieutenant in the Navy from July 1, 1899, to March 2, 1900, of more than fifteen years' service. On October 15, 1898, he reported, by order of the Secretary of the Navy, to Rear Admiral Kautz, commander in chief of the Pacific division, [208 U.S. 32, 34] for such duty as might be assigned him on the flagship. On that day he was assigned to duty on the personal staff of the commander in chief as flag lieutenant, where he continued to serve until March 2, 1900. During that time the personal staff of Rear Admiral Kautz consisted of two officers, one, the claimant, Miller, designated as flag lieutenant, and the other, flag secretary or clerk.
In the findings of fact the duties of the officers constituting the personal staff are set forth in a letter from the Secretary of the Navy, which we shall have occasion to notice later.
The claim for additional pay, as aid to Rear Admiral Kautz was predicated upon 1098 and 1261 of the Revised Statutes, U. S. Comp. Stat. 1901, pp. 807 and 893, providing aids to major generals, and fixing an allowance of $200 a year in addition to the pay of the rank of such aid, and the opening clause of the Navy personnel act of March 3, 1899 (30 Stat. at L. 1004, chap. 413, U. S. Comp. Stat. 1901, p. 982), giving to commissioned officers of the line of the Navy and of the Medical and Pay Corps the same pay and allowances, except forage, as are or may be provided for officers of corresponding rank in the Army. These sections of the statutes were considered in United States v. Crosley, supra, and it was held that the allowance of extra pay was due to the aid of the rear admiral, corresponding to the extra pay allowed to the aid of the major general in the Army. The difference in this respect between the Crosley Case and the one now under consideration is, that the claimant in that case was designated as an aid, while in the present case the claimant was assigned to duty on the personal staff of the commander in chief as flag lieutenant; it is therefore claimed that he is not entitled to the extra compensation due only to an aid to the rear admiral. This argument is predicated on 343, 344, and 345 of the regulations of the government of the Navy, 1896, which are as follows:
It is the contention of the counsel for the government that this language clearly indicates that a flag lieutenant on the staff of a rear admiral, designated in paragraph 1, 345, is to be distinguished from aids junior to the flag lieutenant designated in paragraph 2 of the section. But we think it would be giving a too narrow interpretation of the purpose of Congress to give naval officers the same pay as officers of corresponding rank in the Army, to construe this regulation to deny such pay to a flag lieutenant because he may not have been technically designated as an aid. And, taking the regulation literally, it does not necessarily follow that because the rear admiral may select a junior to the flag lieutenant to serve on his personal staff as aid, that the one designated as flag lieutenant or clerk might not also be regarded as an aid. Be this as it may, we think the statute should be construed so as to effect the purpose of Congress, and that a determination of who are aids should be arrived at by a consideration of the nature and character of the duties of the officers constituting the personal staff of a flag officer. Referring to the letter of the Secretary of the Navy, embodied in the finding of facts, we find:
... * *
In view of the character of the duties thus required of a flag lieutenant, who is to all intents an aid to the rear admiral, we are of opinion that the court of claims did not err in its decision on this branch of the case, that the claimant was entitled to the increased pay awarded to the aid of a major general, at the rate of $200 a year.
As to the contention that longevity pay should be computed on the whole amount of the claimant's pay, including this allowance as aid, we think the court of claims was in error. Indeed, there is a strong indication in the opinion of the learned [208 U.S. 32, 37] judge delivering the opinion in that court that this allowance would not have been made but for the supposed ruling in United States v. Crosley, supra. It is true that in Crosley's Case the longevity pay, as computed, was based upon the $200 additional allowance on account of services as aid, but the correctness of this method of computation was not disputed. Two questions were made in that case: First, as to the right of the claimant to the extra $200 allowed to the aid of a major general in the Army; second, as to whether he was entitled to 'mounted pay' allowance to major generals' aids. Upon well-settled principles the case could not be authority for a point neither made nor discussed nor directly decided, and only incidentally involved, therein.
Considering the question as one of first impression, we think the statute makes it perfectly plain that longevity pay is not to be based upon the increased allowance to an aid. The Revised Statutes, 1262, U. S. Comp. Stat. 1901, p. 896, provides:
In the case of United States v. Tyler, 105 U.S. 244 , 26 L. ed. 985, this court held that current yearly pay upon which longevity increase was to be computed should include previous longevity increases, and in United States v. Mills, 197 U.S. 223 , 49 L. ed. 732, 25 Sup. Ct. Rep. 434, it was held that the 10 per cent increase upon 'pay proper' of the compensation of officers serving beyond the continental limits should be computed upon the total amount which the officer was entitled to receive at the time of such service, both for longevity pay and the pay provided by 1261 of the Revised Statutes. But we have to deal in this case with the statute of June 30, 1882 (22 Stat. at L. 118, chap. 254, U. S. Comp. Stat. 1901, p. 896), which provides:
This statute was doubtless passed to prevent the computation of longevity pay by compounding previous pay for that purpose, which had the effect to give the increase on the pay of the grade, and also on the previous longevity increase. This amendatory act distinctly limits the computation of increase pay for length of service to yearly pay of the grade or rank of the officer entitled thereto. The allowance of $200 a year under 1261, Revised Statutes, in 'addition to the pay of his rank,' is manifestly not the yearly pay of the grade. The purpose of the additional allowance is to compensate the officer during the time he is designated for a special service as aid. His longevity pay is to be computed on the yearly pay affixed by law to the grade or rank to which the officer belongs.
The judgment of the Court of Claims, based upon computation of longevity pay upon the additional allowance for pay as aid, cannot be sustained, in view of the statutory provision, and to that extent the judgment of the Court of Claims must be modified, and, as so modified, affirmed.
[ Footnote 1 ] U. S. Comp. St. 1901, p. 896.
[ Footnote 2 ] U. S. Comp. St. 1901. p. 893.