Messrs. Frederick A. Fenning, Lloyd [239 U.S. 608, 609] Odend'hal, and Spencer Gordon for appellant in No. 154.
Messrs. Simon Lyon, R. B. H. Lyon, and Edward S. McCalmont for appellant in No. 153.
[239 U.S. 608, 611] Assistant Attorney General Thompson and Mr. Richard P. Whiteley for the United States.
Mr. Justice Holmes delivered the opinion of the court:
These claims raise the same question. The claimant White was a lieutenant commander in the Navy. On June 30, 1905, he was transferred to the retired list, on his own request, with the rank of commander (act of March 3, 1899, chap. 413, 8, 9, 30 Stat. at L. 1004, chap. 413, Comp. Stat. 1913, 2636, 2637), and on April 13, 1911, was commissioned a commander on the retired list from June 30, 1905. (Act of March 4, 1911, chap. 266, 36 Stat. at L. 1354, Comp. Stat. 1913, 2068.) He was continued in active service from June 30, 1905, until October 31, 1911. ( Act of June 7, 1900, chap. 859, 31 Stat. at L. 703.) The claimant Ford was a captain, was retired on May 19, 1902, under Rev. Stat. 1444, Comp. Stat. 1913, 2622, with the rank of rear admiral (act of March 3, 1899, chap. 413, 11, 30 Stat. at L. 1007, Comp. Stat. 1913, 2641), and was commissioned rear admiral on the retired list from May 19, 1902. (Act of March 4, 1911, chap. 266, 36 Stat. at L. 1354, Comp. Stat. 1913, 2068.) He was continued on active duty from May 19, 1902, until December 25, 1907 . (Act of June 7, 1900, chap. 859, 31 Stat. at L. 703.) As provided by the lastmentioned statute, both of these officers received the pay and allowances of the rank they held before they were retired. By the act of March 4, 1913, chap. 148, 37 Stat. at L. 891, 892, Comp. Stat. 1913, 2838, it was enacted that 'all officers of the Navy who, since the third day of March, eighteen hundred and ninety-nine, have been advanced or may hereafter be advanced in grade or rank pursuant to law shall be allowed the pay and allowances of the higher [239 U.S. 608, 612] grade or rank from the dates stated in their commissions.' The claims are made under this act for the difference between the pay and allowances received during active service after retirement and that of the higher grade to which the claimants respectively had been advanced. Demurrers to the petitions were sustained by the court of claims.
The claimants, although pressing the universal application of the statute according to the literal meaning of its words, still tacitly concede that we must go behind the letter of the law. For while the statute says that all officers who have been advanced since the date mentioned shall have the pay of the higher grade, and says nothing about active service, the claims are confined to the periods of active service named, which implies a concession that the advance in grade by itself was not enough. And this concession was required by the fact that the statute grants allowances as well as pay, and that allowances are an incident of active duty alone.
As it stands admitted that the statute is of more limited scope than is apparent on its face, to an untrained reader, at least, the question is whether it is to be read as applying to all advanced officers who have been on active service, or only to all such officers upon the active list. We are of opinion that the latter is the true meaning, and that the decision of the court of claims was right. The general rule of the statutes is found in Rev. Stat. 1462, Comp. Stat. 1913, 2652. 'No officer on the retired list of the Navy shall be employed on active duty except in time of war.' An exception, limited to twelve years from its passage, was made by the act of June 7, 1900, allowing officers on the retired list, in the discretion of the Secretary of the Navy, to be ordered to such duty as they might be able to perform, and giving them while so employed the pay and allowances of the grade on the active list from which they were retired. When the act of 1913, under which these claims are made, [239 U.S. 608, 613] was passed, this exception had expired,-all services under it had been rendered and paid for, and, with other exceptions not affecting this case, the general rule was in force. It is more rational to suppose that Congress was dealing with present affairs than that it was reopening transactions that might be ten years old, and that must have been finished, at the latest, nearly a year before. And this construction is confirmed when we notice that the increased pay and allowances are given from the date of the commission; that is, if the claimants are right, from the date of their retirement, without regard to the time when their active duty began. In these cases it was continuous with their service before retirement. But it might have begun years afterwards, and yet, by the statute, the date of the increase in pay and the allowances would have been the same.
The conclusion to which the statutes directly concerned would lead us is confirmed still further by consideration of the act of August 22, 1912, chap. 335, 37 Stat. at L. 328, 329. This act provided that thereafter any naval officer on the retired list might, with his consent, in the discretion of the Secretary of the Navy, be ordered to such duties as he might be able to perform, and while so employed in time of peace should receive the pay and allowances of an officer on the active list of the same rank, provided that he was not to receive more than the pay and allowances of a lieutenant, senior grade, on the active list of like length of service, and, if his retired pay exceeded that, then he was to receive his retired pay only. The clash that there would be between the policy of this act and that of 1913, if construed as the claimants would have it construed, is plain.
Finally, it may be worth noticing that the reports that introduced the enactment pointed out as the evil to be remedied that, under the act of June 22, 1874, chap. 392, 18 Stat. at L. 191, Comp. Stat. 1913, 2837, the only officers who did not receive the pay of [239 U.S. 608, 614] their grade from the time they took rank as stated in their commissions were the youngest officers, who were appointed to the lowest grade, and therefore not promoted to fill a vacancy, as contemplated in the act of 1874. House Rep. No. 1089. 62d Cong. 2d Sess. Senate Rep. No. 1217. 62d Cong. 3d Sess.
Mr. Justice McReynolds took no part in the consideration and decision of these cases.