Messrs. George A. King and William B. King for appellant.
Assistant Attorney General Thompson and [224 U.S. 132, 133] Mr. Frederick De C. Faust for appellee.
Mr. Chief Justice White delivered the opinion of the court:
The office of Admiral of the Navy was re-established by the act of March 2, 1899, 30 Stat. at L. 995, chap. 378, U. S. Comp. Stat. 1901, p. 981, re-enacted in identical terms by a portion of the naval appropriation act of March 3, 1899, 30 Stat. at L. 1045, chap. 421. By another provision of the same act (30 Stat. at L. 1024, 1025, chap. 421, U. S. Comp. Stat. 1901, p. 1073), the Admiral was given the same pay and allowances as had been received by the last General of the United States Army.
From October 17, 1904, until February 29, 1908, the claimant performed the duties prescribed by an order of the Secretary of the Navy, dated October 1, 1904, which directed him to 'report to the Admiral of the Navy, . . . President of the General Board, . . . for duty as aid to the Admiral of the Navy, and for duty in connection with the General Board.' During the period within which these services were performed the claimant received the pay belonging to his rank in the Navy, which, for the earlier portion of the time, was that of Lientenant Commander, and during the remainder of the time that of Commander. He demanded the pay and allowances [224 U.S. 132, 134] of a Captain of the Navy, upon the theory that the Admiral of the Navy corresponded in rank with the General of the Army; that by Rev. Stat. 1096, the General of the Army was entitled to aids, who received increased compensation as such aids by reason of the pay attached to the higher rank conferred upon them while serving as aids to the General, which higher pay the aid to the Admiral became entitled to receive by virtue of the clause of 13 of the naval personnel act of March 3, 1899, 30 Stat. at L. 1007, chap. 413, U. S. Comp. Stat. 1901, p. 1072, assimilating the pay of officers of the Navy to that of officers of the Army.
Section 1096, Rev. Stat., relied upon in connection with the assimilating provision just referred to, is as follows:
This appeal was taken from a judgment of the court of claims dismissing the claim.
Putting aside immaterial considerations, the question upon which the controversy turns is this: In March, 1899, when the office of Admiral was re-created, were the provisions of 1096, Rev. Stat., existing, or had they been repealed, thereby causing it to come to pass that there was no lav concerning aids to the General of the Army upon which the assimilating provisions of the act of 1899 could operate? We say this is the fundamental question, because it is patent that the act of 1899, which recreated the office of Admiral, did not, in and of itself, provide for aids to that officer, or fix extra compensation for such services, and therefore the right here asserted must depend exclusively upon the existence of some law providing for aids to the General of the Army and their pay, which, in virtue of the application of the assimilating statute, became operative as to aids to the Admiral. [224 U.S. 132, 135] While by 1094, Rev. Stat., it was provided that the Army of the United States should consist, among other officers, of 'one General,' the section concluded with the following:
It is not questioned that 1096, Rev. Stat., was a regulation concerning the office of General of the Army, and it is not disputed that that section was repealed prospectively by the proviso to 1094, above quoted,-a repeal which became operative when the event provided for the cessation of the office of General occurred. It is, further, not disputed that years before the recreation of the office of Admiral, in 1899, the result provided for in the proviso to 1094 had taken place, and hence that 1096, concerning aids to the General of the Army, had ceased to exist, as the result of the nonexistence of the grade of General of the Army to which the provisions of that section applied.
The primary contention is that 1096 was revived as the result of the act of June 1, 1888, 25 Stat. at L. 165, chap. 338, by virtue of which Lieutenant General Sheridan was made for life the General of the Army. The secondary proposition is that the provisions of the section which it is contended were thus revived remained in force (although in abeyance) after the death of General Sheridan, and despite the fact that the act of 1888, which provided for his appointment as General, declared that the grade should cease on his death. The contention, however, in reason rests upon a plain misconception of the act of 1888, since it but insists that while the provisions of that act only revived the grade of General for a limited and specified purpose, nevertheless the effect of the act was to revive incidental provisions of law concerning that [224 U.S. 132, 136] office, so as to cause them to continue to exist after the period during which alone the statute contemplated they should be in existence. But so to construe the statute would divide it against itself,-would presuppose that it contemplated that an effect should arise from its enactment plainly at war with the purpose which its text manifests Congress intended to accomplish by its adoption. When it is considered that the grade of General of the Army had ceased to exist long prior to the act of 1888, and that the statutory incidents regulating that office, including 1096, Rev. Stat., had also passed out of existence, we think it results that the provisions of the act of 1888, reviving the office of General, and the incidents relating to that office, were all controlled by the limitation of time which that act imposed. In other words, we think that the office and its incidents were but revived for the sole purposes and for the limited period specified, and none other, and therefore no subject to which that act related can be said to have been generally re-enacted so as to survive the limitations which the act itself expressly contemplated.
The failure by Congress during the many years which have elapsed since the re-creation of the office of Admiral to make any provision concerning the pay of aids to that officer gives rise to the assumption of a legislative construction in accord with the view which we have expressed. The matter is not, however, left to mere inference resulting from silence, since, although Congress, in what is known as the new Navy pay act of May 13, 1908, 35 Stat. at L. 128, chap. 166, in terms specifically provided for the pay of every officer in the Navy, including the Admiral, and embracing extra compensation to aids to Rear Admirals, made no provision whatever for compensation for services which might be rendered by an officer acting as aid to the Admiral. The incongruity, if any, which it is suggested must result from providing for extra com- [224 U.S. 132, 137] pensation for an aid to a Rear Admiral and none for aids to the higher officer, the Admiral, if admitted, would be but the consequence of legislative omission, and would not justify the exertion of judicial power for the purpose of recreating a provision of law concerning aids to the General of the Army, which has long since ceased to exist, in order to afford a subject upon which the assimilating provision of the naval personnel act of 1899 might operate. Affirmed.