
    CHARLES E. HAWKINS v. THE UNITED STATES.
    [No. 14028.
    Decided May 26, 1884.]
    
      On the Facts.
    
    A boatswain warranted in 1871 receives no credit in tbe matter of pay for services in tbe volunteer Navy rendered between 1861 and 1865. He brings bis action for longevity pay refused bim.
    I.Tbe provision in tbe Naval Appropriation Aot 1883 (22 Stat. L., p. 472, cb. 97) tbat all officers in the Navy be credited with the time they may have served in the volunteer naval service, “ and shall receive alt the benefits of such actual service” “ as if all said service had been continuous in the regular Navy,” is necessarily retroactive in its operation.
    II.The word “benefits” in the Naval appropriation Act 1883 includes by fair implication increase of pay from greater length of service.
    III.The proviso in the.Naval appropriation Act 1883 is limited to merely forbidding the allowance of additional pay for the time of volunteer service; it does not prohibit longevity pay founded on volunteer service.
    IV.The longevity pay of a boatswain in tbe Navy under the Navy appropriation Act 1883 founded upon volunteer service examined' and. stated.
    
      The Reporters’ statement of the case:
    This action the claimant brought by the voluntary filing of" his petition. The following are the-facts as found by the court:
    I. June 26,1861, the claimant was appointed a master’s mate in the volunteer Navy of the United States, and served in that capacity until May 25, 1862, when he was appointed an acting master, in which capacity he served until November 29, 1865, when he was honorably discharged. February 11, 1871, he was warranted a boatswain in the regular Navy, and has ever since held that position.
    II. Since he was warranted a boatswain the claimant has received only a boatswain’s pay as prescribed in the Naval appropriation Act of July 15, 1870 (16 Stat. L., 321, ch. 295), and in section 1556 of the Eevised Statutes, and in the matter of pay has received no credit for the aforesaid service in the volunteer Navy.
    
      Mr. Robert B. Lines, Mr. George M. Robeson, and Mr. John Paul Jones for the claimant :
    1. When vested rights would be taken away, the courts lean strongly against giving a retrospective effect to statutes, even where they are not constitutionally prohibited! But the only question in such cases is whether the retrospective intention is sufficiently expressed. (Moon v. Durden, 2 Exch., 22.)
    And where the purpose is remedial only, there is no paramount reason for strictness of construction. (The Ironsides, Lush., 458; Kimbray v. Draper, 3 L. R., Q. B., 160; Sturgis v. Bull, 48 Vt., 308.)
    In such cases it would seem that statutes should be liberally construed to advance the remedy; and especially should they be so construed when the question is one not between individuals, but between the individual in whose favor the remedy is granted and the government whose legislature grants it. (The Peggy, 1 Or., 110.)
    3. The act of 1882 was intended to secure to the officers affected by it all benefits (not theretofore allowed them) which might, under existing or future laws, depend upon length of service. Of course the comprehensive language of the act of 1882 would give to those, officers any benefits depending upon length of service which might be granted to officers in general by future legislation. But, as we read the statutes, it so happened that when the act of 18S2 was passed the only statutory benefit dependent on length of service which these officers had not enjoyed under existing laws was the benefit of pay.
    The defendants suggest three other benefits, said to depend on length of service, as having been in the mind of Congress when it passed the act of 1882, to wit, promotion, assignment to duty, and retirement.
    As to promotion, it is not and cannot be shown that it is governed by length of service per se, and it is moreover admitted that the proviso in the act of 1882 prohibiting change of relative rank excludes promotion from consideration as one of the benefits contemplated by that act.
    So far as assignment to duty is concerned, that is the constitutional province of the Executive. If, as a general principle, length of service has been recognized in the assignment of officers to duty, that is a,matter wholly within the discretion of the President, as Commander-in-Ohief of the Navy, with which discretion Congress ought not to interfere, even if it has the constitutional power to do so.
    The only sort of retirement which is at all affected by length of service is that which is known as voluntary retirement after forty years’ service, under section 1443, R. S.
    
      Section 1443 provides that “ when any officer of the Navy has been forty years in the service of the United States, he may be retired from active service by the President upon his own application.” It is not required that his service should have been continuous, that it should have been all as an officer, or that it should have been all in the Navy. It is submitted that under this section officers of the Navy could already count for retirement all prior service, continuous or non-continuous, as officers or enlisted men in the Navy or in the Army. If this be so, it is clear that the act of 1832 did not and could not extend or in any way affect the benefit of retirement.
    3. Coming now to the act of 1883, which governs these cases, we have only to consider the additional clauses in that Act. Both of those clauses plainly refer to pay, and to nothing else. Certainly the act of 1882 could have left no benefits of service but pay uncredited; for as to assignment to duty and retirement, if they were the benefits contemplated by the act of 1882, then they were fully secured by that act, and the act of 1883 was not only entirely unnecessary, but,absurd. The only change made by the latter act is to provide a grade on which to compute former service. It is not to be conceived how crediting the claimant Jordan, for instance, on his grade as assistant paymaster with the time of service performed as a private and lieutenant in the Army should affect his assignment to duty as a passed assistant paymaster. As for retirement, it was unnecessary to provide any particular grade ou which to compute the time of former service, since such time would count for retirement whether the service was performed as a midshipman or as an admiral.
    
      Mr. Assistant Attorney-General Simons for the defendants :
    There is no canon of construction more deeply rooted in the law than that which is most commonly expressed by the maxim of Bracton, “ Nova constitute futuris formara imponere debet, non prseteritis.” A legislative enactment ought to be prospective, not retrospective, in its operation. In other forms it was clearly recognized and announced by the civilians, but in this it has been judicially adopted and .enforced as a fundamental principle of the common law wherever that prevails. (Broom’s Leg. Max., 8th ed., 34; Sedgwick on Construction, &c., 2d ed., 160-173, 346-353.)
    
      Some courts in applying it have gone so far as to hold that a statute should not be given such effect unless it is expressly so declared. (Terrington v. Hargreaves, 5 Bing., 491; 7 Johns., 477; Berley v. Bampacher, 5 Duer, 187.)
    It is more commonly laid down with the qualification that such effect must either be declared in terms or be required by necessary and unavoidable implication from the legislative expression. (Cooley, Const. Lim., 5th ed., 76, 456.) With this modification, if such it be, there is practically universal adherence to the doctrine, and by no tribunal has it been more strongly maintained than by the Supreme Court. (Murray v. Gibson, 15 H.,423; Colder v. Bull, 3 D., 397; Butherfordv. Green’s Heirs, 2 Wh., 203; United States v. Alexander, 12 Wall., 179.
    There can be no pretense of obligation in law or equity, prior to these enactments, to pay any part of these claims, which demonstrates that even if intended to provide for such payment they are not remedial in any legal sense, but are mere donations of the public money, and as such to be strictly construed in accordance with the doctrine that in grants of the sovereign nothing will pass but by clear and express words. (Broom’s Maxims, 8th ed., 607; Charles Biver Bridge v. Warren Bridge, 11 Peters, 544; Price v.B. B. Co., 1 Black, 380.)
    On the face of the enactment, the case stands thus: Congress has made use of very comprehensive language, indicating its intent to benefit a considerable number of officers by credit of prior service. There are but two benefits to which the term “ all ” can apply (and really but one, as before shown); one of these is wholly prospective, and will be received by every officer from such prior service. The natural inference from the use of the words “ all the benefits ” would be that the other (the pay) benefit was intended to be given to each beneficiary; but, ás has been shown, these broad descriptions are loosely used in the clause, and it turns out that in spite of them not more than a small fraction of those officers can possibly be benefited, and as they are no more entitled than the rest the presumption is overwhelming that the matter of pay, much less back pay, was not in the legislative mind. While it does not follow that the pay benefit should be denied to those (if any) who are included by the letter of the law, it does follow that the use of general language capable of prospective application in accord-anee with the legal presumption should not, under such circumstances, be given the contrary effect..
    The intent of Congress in the later enactment must be gathered, first, from its terms, and the striking fact again confronts ns that whereas it is asserted that the clear intent of the act of 1882 was to give back pay to a large number of officers, and that the Congress in 1883 discovered that that intent was made nugatory by the constructions of the accounting officers, and it now proposed to enforce its former intent by further legislation, it was still unable to state its purpose in plain words. Some clear expression of the proposed grant of back pay would surely have been made, but it is referred to only by way of prohibition.
    The fact of re-enactment with additions shows undoubtedly that Congress had some object in view connected with the prior enactment, and the language of the additions indicates that it related to the matter of pay to some extent, but whether to future or back pay is not so easy to determine on its face.
    It is familiar doctrine that a case may be within the words •of a statute and not within its spirit, and vice versa, and the •courts will follow and enforce the spirit rather than the letter. (U. 8. v. Freeman, 3 H., 564,565.)
    If the argument respecting the enactment of 1882 is well founded, it appears that Congress did not intend by that clause to give back pay, and that there was no good reason for giving it, but that there would be no objection in principle to a prospective pay benefit from the prior uncredited service. It has been seen also that any possible benefit of this kind under the act of 1882 was limited to a very small number of officers, although there were doubtless others not less deserving. Any attempt to modify the act of 1882 would naturally be in the direction of extending it so as to give the pay benefit prospectively to include those who had not been reached by that act; and with this modification the act of 1883 should be presumed to be in complete accord with the general spirit and purpose of its original.
    The first point to be noticed is the repetition of the former clause, which was needless if that was a measure of general legislation, as it seems to be, but which would indicate that the Congress in 1883 thought it was not such, or overlooked the fact, or failed to consider its effect.
    
      The act of 1882 gave credit for past uncredited service, not only to officers in the grades having graduated pay, but to all officers for such service. The act of 1833 seems in effect to take this credit away from all officers but those serving in a grade with graduated pay, a result which Congress could hardly have comtemplated.
    It may be said that this was because the Congress was thinking of nothing but giving back pay. If so, why did it not say “ back pay ” in plain words ? It will be seen presently that this pretense cannot be admitted, and it is opposed to that part of the claimant’s argument which lays stress on the broadness of the expression as in the words “ all the benefits.”
    The anomaly is presented of an act which, apparently proposing to add something to a former act, is so worded as to conflict with the material part of it, if not with the entire act.
    In view of what has been said as to the nature of the claim and the presumptions of law affecting it, the court will be justified in examining the act to-see if he fulfills its conditions, and it is found that his title to graduated pay depends altogether on length of service in the grade from the date of his commission. No accounting officer, I contend, could rightfully pay him the increased rate, unless it appeared that it was for service rendered after five years from the date fixed by the statute, unless some later statute is produced directing such increase of pay to be given under other conditions.
    It seems clear that the act of 1883 does nothing of that kind. It merely gives a general direction without specifying any intended result. For such benefits as may result the officer is relegated to existing laws, the operation of which is nowise directly affected save by the provisos, which are both restrictive.
    Notwithstanding, therefore, the general tenor of the additions is such as to indicate that some provision relating to longevity pay was probably in the mind of Congress, the further anomaly is presented of the retention of that language of the former act which effectually excludes the claimants from benefit of the longevity pay claimed.
    It is evident, from the terms of the act in question, that there is obscurity, if not contradiction, in the legislative expression to an extent that would justify a resort to the facts attending its enactment, as in like cases this court and the Supreme Court have done. (Blake v. United States, 103 U. S., 235; Blake v. Bat. 
      
      Banks, 23 Wall., 317; Jones v. Blackwell, 100 U. S., 600; Fisher’s Case, 15 C. Cls. B., 327 ; Fmory’s Case, 19 C. Cls. B.)
   Dr.ake, Ch. J.,

delivered the opinion of the court:

In the naval appropriation act of August 5. 1882, (22 Stat. L., 284, 287, ch. 391,) is found the following clause:

“And all officers of the Navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer Army or Navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the regular Navy: Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers.”

And in the naval appropriation act of March 3. 1883, (22 Stat. L., 472, ch. 97,) is found the following clause:

“And all officers of the Navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or voluuteer Army or Navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the regular Navy in the lowest grade having graduated, pay held by such officer since last entering the service: Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers: Provided further, That nothing herein contained shall be so construed as to give any additional pay to awy such officer during the time of his service i/n the volunteer army or navy.”

Under this last clause the questions of law arise which we are called upon to decide.

It will be observed that the two clauses are identical in terms, except that to the second were added the words in italics. To that clause we must, therefore, address our consideration; for it is the last expression of the legislative will.

The claimant contends that this clause is retroactive in its operation, and has the same effect in bestowing benefits on him, as if it had been in operation before he entered the regular navy; and that one of those benefits was to allow him, from the time he was appointed boatswain, a higher rate of pay than, by the navy pay table, he would be entitled to, if his pay were computed from the date of his appointment to that office.

On the other hand, the defendants insist on the well understood rule that, as a general proposition, every law must be held to be only prospective in its operation; and that no law should be held to be retroactive, unless the intent to make it so be clearly manifested by its terms.

Conceding this, we think it manifest on the face of the clause that it was meant to be retroactive; aud it is not for the government to object to the character which itself has given to its own legislative grant of benefits to its own officers. It is, we think, quite impossible for the claimant to u receive all the benefits ... in all respects,” which the clause intends him to receive, if the clause should be held to be prospective only in its operation.

Since July 15, 1870, the pay of a boatswain in the Navy has been graduated by periods of three years “ after date of appointment.,” as follows:

At these rates the claimant has been paid from the date of his appointment as boatswain, having had no credit in the computation of his pay for the four years five months and three days of his service in the volunteer navy.

The question then is, whether he is entitled to more pay than he has received, and if so, how much.

The answer to this is connected with the words “ shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the regular navy.”

What is meant there by the word benefits ? We believe there is no difference of opinion that it might fairly be considered to include three things: 1. Higher rank, resulting from greater length of service; 2. Earlier period of retirement on the officer’s own application after forty years’ service, as authorized by section 1443 of the Revised Statutes; and 3. Increase of pay.

The first proviso in the clause puts aside the matter of rank, by prohibiting “any change in the dates of commission or in the relative rank of such officers,” as a result of their being credited with their volunteer service. So far, therefore, as this clause is concerned, the claimant, asjelsewhere provided by law, takes rank simply by the date of his warrant, and in the matter of rank receives no benefit from this clause.

The matter of retirement is not before us, nor can it be before the Executive until the claimant, at the end of forty years’ service, applies to be retired.

The sole question then is, as to the effect, if any, of this clause upon the claimant’s pay.

If, as in former years, a boatswain’s pay were a fixed sum, with no provision for its increase by length of service, then, or course, the credit for volunteer service would be no benefit to him in the matter of pay.

But, as we have seen, a boatswain’s pay is graduated by his length of service after the date of his appointment, increasing with every three years’ period of service up to twelve years, after which one more, and the final, increase of pay takes place.

It is contended that, inasmuch as the law establishes those grades of pay, and the clause in question does not expressly declare that credit for volunteer service shall give title to increased pay, therefore it was not the intention of Congress to authorize any such increase. This position does not seem to us to be tenable, for several reasons.

1. If it be true, it cuts off all benefits resulting from credit for volunteer service, except the far distant one connected with the officer’s retirement; which he may not live long enough to avail himself of. 2. If the clause can fairly be considered to imply a right to increased pay, that implication is as much a part of it as what is expressed. (United States v. Babbit, 1 Black, 55; Gelpcke v. Dubuque, 1 Wallace, 175.) 3. The second proviso of the clause seems to us to justify the implication that the legislature did intend that one of the benefits to result from credit for volunteer service should be increase of pay, at such time and to such extent as the length of that service should be found to authorize. That proviso says—

“ Nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his service in the volunteer army or navy.”

The presence of this proviso puts it beyond question that Congress had before them, when the clause was pending, the matter of its effect on the question of pay. We are not at liberty to assume that, with that before them, they took note of only one aspect of it; but must suppose that they saw it in all its bearings, and intelligently knew what they were doing, and what they were leaving undone. If it was their intention not to allow an officer appointed in the regular navy any increase of regular navy pay, on account of volunteer service credited to him, nothing more was needed to effect that object, than to strike out of the proviso all after the word “officer.” The prohibition would then have been complete, not only as to future service in the regular navy, but as to past volunteer service. When, therefore, they limited the proviso to the mere point of forbidding the allowance of additional pay for the time of the volunteer service, it seems to us fairly to indicate their intention that the officer should in the regular navy, have whatsoever benefit, in the matter of pay, would legitimately result from givinghim credit for his volunteer service. Nothing less than this would, in our judgment, meet and fill the previous words “ all the benefits ... in all respects.”

If this view be correct, it only remains to see what the benefit is, and when it accrued.

The act declares that theofficer shall receive the benefits of his service in the volunteer navy “ as if all said service had been continuous and in the regular navy in the lowest grade having graduated pay held by such officer since last entering the service.” This language is very explicit, and under it we are clear in holding that the only way to meetits requirements is to treat the claimant, so far as pay is concerned, as having been boatswain four years, five months, and three days before the date of his appointment as such; in other words, to regard him, pro hae vice, as having been warranted boatswain September 8, 1866.

The result of this view is, that he must be considered as having, when appointed boatswain, already served through the first triennial period of graduated pay, and as being entitled, from the date of his warrant, to the pay of the second period.

A further result is, that in each succeeding three-year period after the date of his appointment he was entitled to the pay of the grade next above that.

Throughout his service as boatswain he has been paid only-according to the grade of pay computed from the date of his appointment, as such.

He is entitled to the difference between the two grades of pay, which we find to have been, from February 11.1871 to February 11.1883, $2,184.63.

For that sum judgment in his favor will be entered.  