
    CATHERINE C. CRYGIER, Administratrix, v. THE UNITED STATES.
    [No. 16242.
    Decided April 7, 1890.]
    
      On the Proofs.
    
    .A naval cadet is nominated for assistant engineer subject to the condition that not having been examined l'or promotion as required by laty, he he examined before being- commissioned. While on sick-leave the Department refuses a farther extension and notifies him that he must report for examination or resign. He replies “it is my intention, to report for examination, and I apply for the same." On the 6th September, 1884, the Department notifies him that having failed to pass examination for promotion he will be dropped on the 30th. It does not appear that he re-applied for examination after receiving tho letter of September 6.
    I. An officer nominated and confirmed for promotion subject to the condition that his commission be withheld until he pass an examination required bylaw, will not be entitled to the salary of the office until he comply.
    II. Unless there be a holding of an office, defacto or dejare, there is no right to its salary.
    'III. A naval cadet cannot be dropped from the Navy by the Secretary because he has not been examined for promotion.
    The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. On the 1st of October, 1874, John U. Orygier was appointed a cadet-engineer in the Navy; completed his course of instruction at the Naval Academy, and was detached therefrom on the 10th of June, 1879. On the 5th of July, 1879, pursuant to orders, he reported for duty on the United States ship Marion, South Atlantic Station, on which vessel he served until June 25,1882, when he was detached at Montevideo and ordered home, in pursuance of the recomihendation of a board of medical survey, which reported him unfit for .duty in consequence of disease contracted in the line of duty on board the Marion. On his return to the United States he was transferred to a naval hospital for treatment. He reported to the Department from the Naval Hospital, New York, August 1, 1882. < )n the 4th he was granted sick-leave for an indefinite period. On the 19th of January, 1883, he was ordered to appear for a medical survey, and on the 13th of February following he was granted a further leave, which, after .being several times extended, expired on the 21st of March, 1884. On the 19th of April, 1884, the following letter was 'written to him from the Department:
    “Navy Department,'
    “Bureau oe Navigation and Oeeioe of Detail,
    “ Washington, 19 ¿7» April, 1884.
    “Sir: Referring to your letter of the 30th ultimo to the Secretary of the Navy, reporting the condition of your health and asking an additional sick leave for three months, I have to say that you have now been on sick leave .since August, 1882, the date of your return to the United States, at which time you should have been examined for promotion to the grade of asst, eng.; and as the nature of your reports do not indicate any improvement in health, the Department does not feel authorized to grant you the additional leave requested. You should, therefore, on receipt of this communication, tender your resignation, to take effect on 1st of June next, or report for the required examination preliminary to promotion.
    “ You will be pleased to inform this office as early as possible with respect to your intention in the matter.
    “ By direction of the Secretary of the Navy.
    “ Respectfully,
    “ J. U. Walker,
    ■ “ Chief of Bureau,
    
    “ Naval Cadet John U. Crygier,
    “ TJ. S. Wavy, Lake Como, Florida.”
    
    To this letter claimant sent the following letter:
    “ Savannah, Ga., April 26th, 1884.
    “ Sir : Your communication of the 19th instant, directing me to either tender my resignation, to take effect on the 1st of June next, or else report for the required examination preliminary to promotion to the grade of assistant engineer, is received. ,
    “In reply I would state that it is my intention to report for examination, and I respectfully apply for the same.
    “ I am now on my way to my home in New York; after my arrival there on the 29th instant, my address will be 373 West 23d street, New York City.
    “ Yery respectfully, your obedient servant,
    Jno. U. Crygier,
    “ Cadet-Engineer,.
    
    “ Commodore J. G. Walker, U. S. N.,
    “ Chief of the Bureau of Navigation,
    “ Navy Department, Washington, D, CP
    
    
      It does'not appear that any reply was made to this letter, but on the 6th of September, 1884, claimant received the following letter:
    “Navy Department,
    “ Washington, 6th September, 1884.
    “ Sir : Having failed to pass the required physical examination for. promotion'to the grade of assistant engineer, you are hereby dropped from the Navy of the United States, to take ■effect on the 30th of September, 1884.
    “ Very respectfully,
    “ Wi. E. Chandler,
    
      “Secretary of the Namy.
    
    “ Cadet-Engineer John U. Crygier,
    “ U. S. Navy, Neto York.”
    
    Accordingly he was dropped from the Register of the Navy, and received no pay after the 30th of September, 1884.
    II. On the 5th of December, 1881, the names of twenty cadet-engineers, including' that of Cadet-Engineer John U. Crygier, were sent to the Senate-for appointment as assistant engineers, subject to the condition that “ such of the foregoing as have not been examined for promotion, as required by law, to be subject to such examination and to be reported qualified before receiving their commissions,” and on the 20bh the Senate advised and consented to the appointment of the persons thus nominated “ agreeably to their nominations.”
    III. Said John U. Crygier died on the 5th of August, 1885, and the claimant, Catherine C. Crygier, has been duly appointed his administratrix.
    The amount of pay and emoluments of claimant as cadet-engineer from September 30, 1884, to August 5, 1885, would have been $598.60 had he actually continued in the service.
    
      Mr. W. W. Belknap and Mr. George A. King for the claimant:
    The facts of this ease bring it within the decisions of this court in Leopold v. United States (IS C. Cls. R., 546); Redgrave v. United States (20 C. Cls. R., 226); affirmed, United States v. Redgrave (116 U. S. R., 474), and Perkins v. United States (20 C. Cls. R., 438); affirmed} United States v. Perkins (116 U. S. R., 483).
    
      
      Mr. P. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants:
    Was the claimant, after the 30th of September, 1884, out of the service by reason of his discharge by the Secretary óf the Navy ”?
    In the case of Perkins v. United States (20 C. Cls. R., 438; affirmed, 116 U. S. It., 483), it is held that a graduate cadet-engineer is an officer of the Navy within the meaning of section 1229, Kevised Statutes, which provides that—
    “No officer in the military or naval service shall, in time of peace, be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect or in commutation thereof.”
    Prior to the decision of this case the custom in the Navy • Department was not to regard graduate cadet-engineers as ■officers of the Navy.
    The case of claimant would seem to come within the decision in Perkins’s Case (supra).
    But claimant was not assistant engineer in the Navy. He was appointed by the President and confirmed by the Senate subject to examination — the commission not to issue until he was found physically and mentally qualified. He was not able to take such examination. He remained in the rank of cadet-engineer.
    He does not come within the provisions of sections 1561 and 1562, Revised Statutes. He was not entitled to pay as assistant engineer.
   Weldon, J.,

delivered the opinion of the court:

In this suit, the petitioner claims the sum of $2,252.09, for the increased pay of decedent, as, an assistant engineer in the Navy, from the 5 th of December, Í881, to the time of his death, in August, 1885.

The facts are briefly as follows : On the 1st of October, 1874, the decedent was appointed a cadet engineer in the Navy, and completed his course of instruction at the Academy on the 10th day of June, 1879. On the 5th day of July, 1879, he reported for duty on board the ship Marion, on which he served until June 25, 1882, when he was detached and ordered home because of physical disability. He was granted sick leave from time to-time, until the 19th of April, 1884, when he was notified that he must either resign, or report for preliminary examination for promotion. He did not report for examination, but on the 26th of April, 1884, wrote the Department that “ it is my intention to report, and I respectfully apply for the same.” To that communication no reply was made, but on the 6th of September, 1884, the Secretary of the Navy wrote to him :

“ Having failed to pass the physical examination for promotion to the grade of assistant engineer, you are hereby dropped from the Navy of the United States, to take effect on the 30th of September, 1884.”

He had no further communication with the Department.

On the 5th of December, 1881, the name of'the decedent, with others, had been sent to the Senate for appointment as assistant engineer, subject to the condition, “ that such of the foregoing as have not been examined for promotion, as required by law, to be subject to 'such examination, and to be reported qualified before receiving their commission;” and on the 20th of September the Senate had advised and consented to the appointment of the persons thus nominated “ agreeably to their-nominations.”

On the 5th day of August, 1885, the said decedent died, having received his pay as cadet engineer until the 30th of September, 1884, at which time he was dropped from the roll, pursuant to the order of the Secretary as stated.

The petition of the claimant alleges, first, that the decedent was entitled to pay as assistant engineer, amounting to the sum of $2,252.09; but if not entitled to such pay, that he was entitled to be paid to the time.of his death as a cadet engineer, having been improperly dropped from the roll, under the order of the 30th of September, 1884.

It is difficult to understand, upon what principle of statutory construction, the first contention of the claimant caD be maintained. Although the decedent was nominated to, and confirmed by the Senate, as an assistant engineer, it was upon the condition that he was to be examined, and found qualified before receiving, his commission. He was never examined, and hence did not receive his commission as an assistant engineer, and never performed the duties of that position. It is-trae, that on the 26th of April, 1884, he replied to the Department that it was his intention to report for examination, and that he applied for the same. No attention was paid to the communication by the Department, although as a matter of right the decedent may have been entitled to an order for examination.

A failure on the part of the Department will not entitle a person to the emoluments of promotion. They are strictissimi juris, and must be recovered, as the result of a substantial compliance with the statute. The pay of an officer in the Navy, is regulated by express law, and unless there is a bold-ing, either as defacto, or dejure, there can be no right to the pay of the position.

The question in this branch of the case is not affected by the provisions of sections 1561 and 1562 of the Ee vised Statutes, nor do the decisions of the Supreme Court, and this court, upon. the rights of officers in the Navy, determine anything in favor of the claimant. As to the second contention of claimant, that the decedent was entitled to pay as a cadet engineer from the 30th of September, 1884, to the 5th of Augnst, 1885, the court is of opinion, that the case in that branch, falls within the law announced by the Supreme Court, in confirmation of this court in the case of Perkins v. United States (116 U. S. R., 483; 20 C. Cls., 438).

In that case it was held that a cadet engineer was an officer of the Navy within the meaning of section 1229, Eevised Statutes, which provides:

li No officer in the military of naval service shall, in time of peace, be dismissed from service, except upon and in pursuance of the sentence of a court-martial to that effect or in commutation thereof.”

Upon the faith of that decision we hold that the claimant is entitled to recover the sum of $598.60, and for that amount a judgment will be entered.  