GIBSON v. U S(1904)
[194 U.S. 182, 183] This is an appeal from the court of claims. The claimant is a retired rear admiral. This action was prosecuted to recover the difference between three fourths the pay of a brigadier general and that of a major general of the Army, accorded by statute to retired rear admirals. The court of claims dismissed the petition, holding the claimant entitled to three fourths the pay of a brigadier general. Upon the hearing in that court the following facts were found:
Washington, June 30, 1900
John D. Long,
Messrs. George A. King and William B. King for appellant.
[194 U.S. 182, 186] Assistant Attorney General Pradt and Mr. John Q. Thompson for appellee.
Statement by Mr. Justice Day:
Mr. Justice Day delivered the opinion of the court:
The first question presented is whether a captain in the Navy, retired as a rear admiral, under 1444 of the Revised Statutes of the United States and 11 of the Navy personnel act, shall receive three fourths of the pay of the rear admirals in the nine higher numbers in the list of rear admirals or the like proportion of the pay of the nine lower numbers of the eighteen rear admirals.
Section 1444 of the Revised Statutes provides: 'When any officer below the rank of vice admiral is sixty-two years old, he shall, except in the case provided in the next section, be retired by the President from active service.'
Section 11 of the navy personnel act reads: 'That any officer of the Navy, with a creditable record, who served during [194 U.S. 182, 187] the Civil War, shall, when retired, be retired with the rank and three fourths the sea pay of the next higher grade.' 30 Stat. at L. 1007, chap. 413 (U. S. Comp. Stat. 1901, p. 1025).
Section 13 provides: 'That after June thirtieth, eighteen hundred and ninety-nine, commissioned officers of the line of the Navy and of the medical and 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.'
In the first proviso of 7 of said act, provision having been made for eighteen rear admirals in the active list of the line of the Navy, it is enacted as follows: 'Provided, That each rear admiral embraced in the nine lower numbers of that grade shall receive the same pay and allowances as are now allowed a brigadier general in the Army.' 30 Stat. at L. 1005, chap. 413 (U. S. Comp. Stat. 1901, p. 982).
The claimant, at the time of his retirement, was a captain in the United States Navy, who had served during the Civil War, and was retired, by order of the Secretary of the Navy, pursuant to 1444 of the Revised Statutes, with the rank and with three quarters of the sea pay of the next higher grade, in accordance with 11 of the navy personnel act above quoted.
By 1466 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 1029), it is provided:
The claim of the appellant is, in substance, that the pay of the next higher grade above captain, the three quarters of which the appellant is to receive, is the full pay of a rear admiral,-that of a major general,- and not what is claimed to be the exceptional pay for the nine lower numbers of that grade, who are to receive the pay and allowance of a brigadier general.
It is admitted in the discussion, that the provision fixing the pay of the nine rear admirals to correspond with the pay of a brigadier general arose from the fact that the relative rank of officers of the Army and Navy had been so adjusted by statute as to rank commodores with brigadier generals, and the rank of commodore being dropped from the service, the pay of a brigadier general was given to the nine lower numbers of the rear admirals, who would otherwise have had the rank of commodores, with the corresponding pay of brigadier generals.
The argument for the appellant insists that the language is plain and so explicit as to need no construction; but the fact that the rear admirals are divided into two classes for the purposes of pay, and the statute not specifically pointing out which class of pay shall be given those situated as the claimant is, leads us to consider the objects to be attained by the new law, the circumstances under which it was enacted, and to construe the language used in view of the purpose of Congress in enacting the statute.
There is no question that, had the claimant been promoted in the active service from captain to rear admiral, he would have passed into the lower grade of rear admirals, so far, at least, as his pay was concerned, and would have received, so [194 U.S. 182, 189] long as within that number, the pay of a brigadier general, notwithstanding that for all other purposes he was entitled to the rank and privileges of a rear admiral.
The appellant was promoted, and almost immediately retired; when thus retired, having served during the Civil War, he was given the rank of the next higher grade and three fourths of the sea pay of that grade. Congress had already created, for the purposes of pay, a division in the rank or grade of rear admiral, with higher pay for those of higher number and lower pay for others in the rank. It seems to us that it was the object of Congress, when retiring an officer under the circumstances stated, that he sould receive the pay of the next higher rank, and, but for the division made in the pay of rear admirals, he would receive the three quarters of the full pay of that rank; but, taking one step upward for the purpose of pay, he passes into, and not over, the next pay grade, which is that of the nine lower numbers.
In regular gradation in the active service, a rear admiral, for the purposes of pay, must first serve through the nine lower numbers of the grade. So with a retiring officer; it is the purpose to give him, as compensation in the regular order of promotion, the pay of the 'next higher grade.' This conclusion is in harmony with the decision of this court in Rodgers v. United States [ 185 U.S. 83 , L. ed. 816, 22 Sup. Ct. Rep. 582] in which Mr. Justice Brewer, speaking for the court, said of this statute:
We cannot believe that it was the intention of Congress that an officer upon retirement, and whose promotion shortly before his retirement was made for the purpose of giving him an increase of pay as well as rank, was intended to be given the higher grade of pay reserved for those of distinction or long service in the grade to which the retiring officer was promoted, leaving those in the active service who earned the right to promotion to receive the lower grade of pay. In short, we believe it was the intention of Congress to promote a retiring officer for the purposes of pay into the next grade above that in which he served before retirement. In this case such compensation was that provided for rear admirals of the lower grade. If this were not so, a retiring rear admiral would receive, under the circumstances now before us, more pay upon retirement than is given to the rear admirals in active service, in the lower pay grade. It is urged that the promotion and retirement of those who had rendered valuable service in the Civil War was the object of Congress, which purpose is best subserved by construing the statute to give in case of such promotions the full rank and pay of the grade to which the officer is promoted. This reasoning may be adequate to furnish a motive for such legislation, but we can only give effect to purposes expressed or necessarily implied in the terms of the statute. [194 U.S. 182, 191] But, it is urged, that in 8 and 9 of the navy personnel act, Congress, in providing for retirement of naval officers, has included the grade of commodores, and provides that captains within their terms shall be retired with three fourths the pay of the next higher grade, 'including the grade of commodore, which is retained on the retired list for this purpose,' thus evincing the purpose of Congress to retain the rank and pay of commodores in express terms when such is the purpose. But this reservation is for officers retired under these sections who are not to rank above commodores, while officers who served in the Civil War and are retired are to have the full rank of admirals, with the pay of the lower grade of the rank.
We agree with the Comptroller of the Treasury and the court of claims in the construction to be given this statute. If the purpose of Congress has been mistaken, the law can be corrected by a new enactment making clear the intention to give the more liberal treatment contended for by the appellant.
The question remains as to the right of this officer to receive commutation for the sea ration provided for by 1578 and 1585 of the Revised Statutes (U. S. Comp. Stat. 1901, pp. 1083, 1085). These sections are:
The provision of 13 of the navy personnel act is:
The claim upon this branch of the case is that 1578 and 1585 are not repealed in express terms by 13 of the navy personnel act, and, as repeals by implication are not favored, it is argued that, notwithstanding the later law, the allowance for sea rations still remains for naval officers. But [194 U.S. 182, 192] the later act distinctly provides that after June 30, 1899, commissioned officers of the line of the Navy and of the medical and pay corps shall receive the same compensation and allowance, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army. This section was intended to cover, and in exact terms provides for, all pay and allowance for naval officers except forage. Where it is the intention of the statute to make a distinction or exception in allowance, that exception is expressly stated. The subject- matter of the later act provides for allowances to such officers, and it is to be the same as is now provided by law for Army officers of corresponding rank. Had Congress intended that such allowances as theretofore given should be continued, or to reserve, the right to commutation as to the sea ration, it would have been very easy to have inserted apt words which would have rendered effectual this purpose. But the terms of the law undertaking to revise former laws upon the subject make no such reservation as is contended for, and we think we are not at liberty to add to the statute by inserting it.
It is true that repeals by implication are not favored, but where the same subject-matter is covered by two acts which cannot be harmonized with a view to giving effect to the provisions of each, to the extent of the repugnacy between them the latter act will prevail, particularly in cases where it is apparent that the later act was intended as a substitute for the earlier one. District of Columbia v. Hutton, 143 U.S. 18 -26, 36 L. ed. 60-62, 12 Sup. Ct. Rep. 639.
It is admitted that a change in the compensation of naval officers was made by the enactment of the new law, and, while 13 provided that such officers should not be reduced in pay, there is no provision retaining the allowances of the former act. Moreover, 26 of the navy personnel act provides that all acts and parts of acts, so far as they conflict with its provisions, shall be repealed. For the reasons stated we think the allowance of the previous statute cannot stand [194 U.S. 182, 193] consistently with the express provision upon the same subject of the later act.
We find no error in the judgment of the Court of Claims, and the same is Affirmed.
Mr. Justice Brewer took no part in the consideration or decision of this case.
[ Footnote 1 ] U. S. Comp. St. 1901, p. 1025.