
    KENNETH McALPINE v. THE UNITED STATES.
    [No. 17438.
    Decided June 20, 1892.]
    
      On the Proofs.
    
    The Act to fix the Status in the Navy of certain Cadet Engineers of the class of 1881, who were dropped in consequence of an erronious construction of the law hy the Secretary of the Navy, authorizes their appointment as assistant engineers, and provides that their commissions “he dated from July 1,1883.”
    
    An" assistant engineer in the Navy, appointed and commissioned under and pursuant to the Aet 9th July, 1888 (25 Stat. L., p. 241), is entitled to pay from the date of his commission.
    
      The Reporters’ statement of tbe case:
    The following are the facts of this case as found by the court.
    I. The claimant entered the Naval Academy as a cadet en- . gineer, and completed his four years’ ocurse June 10,1881.
    II. Thereafter he received the following order:
    “Navy Department,
    
      u Washington, June 26, 1883.
    
    “ Sir : Having successfully completed your six years’ course at the United States Naval Academy, and having’ been given a certificate of graduation by the academic board, but not being required to fill any vacancy in the naval service happening during the year preceding your graduation, you are hereby honorably discharged from the 30th of June, 1883, with one year’s sea pay, as prescribed by law for cadet midshipmen, in accordance with the provisions of the act of Congress approved August 5,1882.
    “ Respectfully,
    “Vi. E. Chandler,
    “ Secretary of the Wavy.
    
    “Naval Cadet Kenneth McAlpine,
    
      uAnnapolis, Md.”
    III. On March 10,1886, the Secretary of the Navy issued the following general order:
    “General Order, No. 344.] March 10,1886.
    “ The recent decisions of the Supreme Court of the United States on appeal, in the cases of The United States v. Redgrave and The United States v. Perldns, have affirmed the construction given by tbe Court of Claims to tbe provisions of the act of August 5,1882, relating to tbe discharge of surplus graduates from tbe Naval Academy.
    “Under tbe construction of tbe act referred to, as thus settled, it appears that tbe cadet engineers, who, either in 1881 or 1882, on the completion of a four years’ course of instruction at the Naval Academy, passed a successful examination and received a certificate to that effect, thereby became graduates, and, as such, were not constituted and made naval cadets under tbe act aforesaid, and were not subject to tbe provisions of that act relating to tbe discharge of surplus graduates.
    “It further appears that, of tbe cadet engineers hereinafter named, twenty-one, after a four years’ course, graduated at tbe Naval Academy in 1881, and six, in like manner, graduated in 1882, but that they were, under an erroneous construction of tbe law and in pursuance of General Order, No. 302, dated December 12,1882, designated as naval cadets, and as such were further examined at tbe final graduating examinations in 1883 and 1884, and immediately thereafter were notified that, under tbe provisions of the act of August 5,1882, they were honorably discharged from the service with one year’s pay.
    “It further appears that in some instances tbe cadet engineers thus notified deebned to accept such discharge or tbe pay attached thereto, wliile others accepted tbe pay either with or without protest. The Department is, however, advised by the Attorney-General to the effect that the acceptance or nonacceptance of the discharge and pay thus tendered does not alter the legal status of any cadet engineer who, under the aforesaid erroneous construction of the law, was designated and notified of his discharge as a surplus graduate.
    “Under the circumstances, and for the purpose of giving due effect to the decisions of the courts, it is ordered that the names of the following cadet engineers be,- and the same are hereby, restored to the Navy Register:
    “GustaveKammerling, O.B. Shallenberger, JamesE. Byrne, Frank B. Dowst, Kenneth McAlpine, Wm. Stuart Smith, Wm. T. Webster, Solon Arnold, Arthur B. Bush, Martin A. Anderson, Thomas J. Hogan, Robert J. Beach, Wm. H. Gartley, Lloyd Bankson, De Witt O. Redgrave, Robert Stewart, jr., Isaac B. Parsons, William W. White, Bias 0. Sampson, Lyman B. Perkins, Otto 0. Gsantner, Clarence C. Willis, Frank H. Conant, Harry G. Leopold, Charles H. Howland, Ward P. Winchell, Albert Moritz.
    “The above-named cadet engineers will be regarded as now on waiting orders, and as having been respectively on waiting orders since the date when they were notified that they were discharged from the service.
    “William C. Whitney,
    “ Secretary of the Nary.”
    
      IT. Tbe claimant was thereupon recognized,as in the Nayy and his name was placed on the Navy Register, and he has ever since performed the duties to which he was assigned.
    Y. August 10,1888, the President, by and with the advice and consent of the Senate, appointed the claimant to be an assistant engineer, with the relative rank of ensign, to date from the 1st day of July, 1883, pursuant to the act of July 9, 1888, chapter 591, entitled “An Act to fix the Status in the Navy of certain Cadet Engineers ” (25 Stat. L., 241).
    VI. From July 1,1883, to August 10,1888, he received, after his present appointment and restoration, the compensation prescribed by law for a cadet engineer who had received a certificate of graduation from the Naval Academy, and such duties as he performed during said period were of the kind usually performed by an assistant engineer.
    VII. The difference between the salary actually paid to him as a cadet engineer for the period from July 1,1883, to August 9,1888, and the salary which he would have received if he had been paid as an assistant engineer for said period is the sum of $3,454.27.
   Richardson, Ch. J.,

announced the following conclusion of law:

Upon the foregoing findings of fact the court determines, as conclusions of law, that the claimant, having been appointed an assistant engineer in the Navy by the President with the advice and consent of the Senate, to date from July 1,1883, in accordance with a special act of Congress, is entitled to the pay of an assistant engineer from July 1,1883, when Congress authorized his commission to bear date, upon the authority of United States v. Vinton (2 Sumner, 299); Collins v. United States (15 C. Cls. R., 22); and Burchard v. United States (125 U. S. R., 179), and for the reason that when Congress authorizes the dating back of a commission it intends to give the officer pay from such date, unless otherwise expressed as in the act of 1889, March 2, Ch. 399 (25 Stat. L., 879).

The claimant is entitled to recover the difference between the pay he was entitled to and that which he received, to wit, the sum of $3,454.27.  