
    CHARLES M. THOMAS v. THE UNITED STATES.
    [No. 22671.
    Decided January 5, 1903.]
    
      On the Proofs.
    
    An officer commanding a vessel is detached at Bai'bados and ordered to report at the Navy Department. lie travels from Barbados by sailing vessel and is allowed only his actual expenses and shore-duty pay. He is immediately ordered “to Hongkong for duty on the Asiatic Station,” and on arriving there is"assigned to the command of the Baltimore. Iie.is allowed only shore-duty pay and his actual expenses or commutation therefor given by Revised Statutes, sections 1578, 1585.
    I. A naval officer detached from his vessel at a port of a foreign country and ordered to report at the Navy Department is on shore duty, while traveling to Washington, and is not entitled to the full pay of his rank. Noit, Ch. J., dissenting.
    
      II.An officer detached from his vessel at Barbados and ordered to report to the Navy Department at Washington and thence ordered • to Hongkong “for duty on the Asiatic Station,” and on his arrival assigned to the command of a vessel, is entitled only to shore-duty pay while traveling from Washington to his vessel on the Asiatic Station. Mott, Ch. J, dissenting.
    III. A naval officer is not entitled to the increase of 10 per cent in pay for service in the Philippine Islands or in China or for ‘1 serving beyond the limits of the United States” given to army officers by the Acts 26th May, 1900, and 2d March, 1901 (31 Stat. L., 211, 903), unless he was “detailed for shore duty” as provided by the Navy personnel act. But see this case, post, where on motion for a new trial this ruling is reversed.
    IV. Since the enactment of the Navy personnel act a naval officer is not entitled to the sea ration given by the Revised Statutes, sections 1578, 1585.
    Y. The proviso in the Navy personnel act declaring that “no provision of this act shall operate to reduce the present pay of any commissioned officer" and the Act 7th June, 1900 (31 Stat. L., 684, 697), providing “that nothing therein contained shall operate to reduce the pay” do not extend to allowances. See Taylor’s case, Richardson’s case, Colhoun’s case (post).
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant entered the United States Navy as an acting midshipman on the 28th day of November, 1861, and has served continuously in the Navy since that date. He became a captain on March 3, 1899, and has since continuous^ served in that grade.
    II. Claimant was relieved as commanding officer of the Lancaster at Barbados December 2,1899, and ordered to report to the Navy Department. He reported at the Navy Department December 12,1899. He was paid during that period at the rate of $3,825 per annum. On December 13, 1899, he was ordered to proceed to Honkong for duty on the Asiatic Station, and sailed by merchant steamer sailing from San Francisco January 6, 1900. He reported in obedience to said orders and was assigned to the command.of the U. S. S. Baltimore February 7, 1900. April 16, 1900, he was detached from the Baltimore and ordered to command the U. S. S. Brookljm, April 17. On March 26, 1901, he was ordered detached from the command of the Brooklyn on reporting of his relief and ordered to the command of the U. S. S. Oregon. He was detached from the former vessel April 1, and reported, on the latter vessel April 7, of which he remained in command until J11I37 6, 1901. On April 5 and 6, 1901, he was traveling' from Cavite to Hongkong on the merchant steamer Esmeralda.
    III. When relieved as commanding officer of the Lancaster, the vessel was at Barbados, West Indies. The claimant took the merchant steamer Wordsworth from Barbados to Hew York. The distance is 2,106 miles. Transportation was furnished the claimant from Barbados to New York at a cost of $50. No other allowance was made to the claimant for travel between these places.
    IY. From July 1, 1899, to September 30, 1901, the claimant was attached to a seagoing vessel, except from December 3, 1899, to February 6, 1900, and on April 5 and 6,1901.
    V. From May 26, 1900, until April 4,1901, the movements of the U. S. S. Brooklyn, of which the claimant then had command, were as follows, as officially reported by the Bureau of Navigation:
    
      
    
    VI. From April 7, 1901, until June 12, 1901, the movements of the U. S. S. Oregon, of which the claimant was then in command, was as official^ reported by the Bureau of Navigation, as follows:
    
      
    
    VII. Between December 2, 1899, when relieved as 'commanding officer of the U. S. S. Lancaster and ordered to report to the Navy Department,' and February 1,1900, when be took command of the U. S. S. Baltimore at Hongkong, China, be was paid only shore pay, $3,828 a year, 15 per cent less than sea pay^ from May 26, 1900, to September 30, 1901, the claimant -was paid at the rate of $4,500 a year, except for April 5 and 6, 1901, when be was paid at the rate of $3,825 a year. The rate of $4,500 is the pay fixed by law for a colonel in the Army of over twenty years’ service under sections 1261 and 1262 of the Revised Statutes as applied to the Navy by the act of March 3, 1899 (30 Stat. L., 1007, and Rev. Stat., sec. 1466). The rate of $3,825 is 15 per cent less than that amount, the percentage required to be deducted for service on shore in accordance with the act of March 3, 1899.
    VIII. On May 26, 1900, while the claimant was in command of the U. S. S. Brooklyn, she left Hongkong and went directly to Cavite. While at Cavite she remained in the bay of Manila, off the naval station, about a half mile from Sang-ley Point and 2 miles from Cavite.
    IX. On leaving Cavite, on June 26, 1900, the vessel went to Hongkong for diplomatic reasons connected with the disturbed condition of affairs in China. Beside her regular complement of men, she had on board 19 marine officers and. a battalion of 300 marines. The vessel then proceeded to Taku, stopping at Nagasaki, Japan, to coal, and at Chefoo to inquire as to the condition of the Oregon. The anchorage of the Brooklyn was about 12 miles off the mouth of the Peiho River in the Gulf of Pechili, it being impossible to approach nearer with so large a vessel, on account of shallow water. The Newark was there present on the arrival of the Brooklyn, and the Yorktown and the New Orleans arrived later, as well as the dispatch boat Zafiro, and the Buffalo. All of the naval powers of the world were represented there by about fifty war vessels, and the presence of the Brooklyn there was on account of the Boxer difficulties then existing in north China. The Brooklyn cooperated with the army on. shore by assisting them to land, providing them with steam tenders and steam launches, and towing them from the anchorage to Tongku. There were frequent conferences on board the Brooklyn between the military authorities and the admiral and other officers. General Chaffee boarded the Brooklyn on his arrival to consult the commander in chief, and the army quartermaster in charge of transportation was in frequent conference in regard to the facilities for landing the United States troops. The marines on board the Brooklyn under Colonel Meade were landed, and the commander in chief of the naval force went up to Tientsin in person after the fight at Tientsin to investigate the condition of the marines there. The officers of the army in passing visited the Brooklyn to pay their respects to the commander in chief as the senior military representative of the United States in China, and those of higher rank called to consult him as to the state of affairs on shore. The flagship Brooklyn had a representative on shore in connection Avith the military operations, Lieut. Julian L. Liti-mer, detailed as a naval aid to General Chaffee, who remained Avith him for a period of about six weeks. He accompanied him in the expedition for the relief of Pekin, and was present at the capture of Pekin and the retreat of the Chinese forces. His principal duty was to keep the commander in chief thoroughly advised of the state of affairs, and this information was communicated to the Government at Washington by cablegram through the naval dispatch boat Zafiro, carrying all messages to Chefoo. On the return of the Brooklyn to CaAdte, leaving Taku on October 11, 1900, the vessel stopped at Nagasaki and replenished Avith coal, going thence to Shanghai, anchoring at Woosung, the man-of-war anchorage for Shanghai, and coaled ship there.
    
      X. On reaching Cavite, on November 8,1900, the Brooklyn anchored off the city of Manila, where it served as the headquarters of the commander in chief in the Philippine waters. She was used to transport the governor-general of the Philippines for a tour of inspection to Olongapo, keeping- on that trip from half a mile to 3 miles from land. She went to Iloilo to permit an inspection by a board ordered by the Navy Department to select a naval station in the Philippines, keeping distant from shore on that trip from an eighth of a mile to 2 miles. She took another trip to Olangapo in connection with the investigation of a naval station, going and returning b3r substantially the same route as on the former trip. Between these trips, and afterwards until leaving Manila, the vessel remained at headquarters on the station.
    XI. While at Hongkong in February-, 1901, the vessel was at the Kowloon dockyard being docked and undergoing minor repairs.
    XII. After the return of the Brooklyn to Cavite she became headquarters on the station again in the bay of Manila, and so continued until after March 2, 1901.
    XIII. From June 12, 1901, to September 30, 1901, the Oregon, of which the claimant remained in command, was at San Francisco, Cal., and at Bremerton, Wash., in the waters of Puget Sound and en route between those two points.
    XIY. At no time between Juty 1, 1899, and September 30, 1901, did the claimant receive a sea ration or commutation therefor under Revised Statutes, sections 1578 and 1585.
    XV. It has been the practice of the Pa}*- Department to pay officers of the Army serving on board United States army transports the 10 per cent increase of pay provided for by act of March 2, 1901, from date of departure from the United States to date of then*,return to, inclusive.
    Since May 26, 1900, army officers serving on army gunboats in the Philippines have been paid the 10 per cent increase provided for by the acts of March 2,1901, and May 26, 1900.
    
      Mr. George A. King for the claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The claimant, a captain in the United States Navy, bases his right to recover the pay and allowances of an officer of the Army of corresponding rank, after twenty years’ service, under section 13 of the act March 3, 1899 (30 Stat. L., 1007), which, so far as applies to the present case, is as follows:

“Seo. 13. 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:
“Provided,, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty. * * *
“Provided further, That when naval officers are detailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places. * * *
“And provided further, That no provision of this act shall operate to reduce the present pay of any commissioned officer now in the Navjr; and in any case in which the pay of such an officer would otherwise be reduced he shall continue to receive pajr according to existing law.”

The several claims are stated by counsel in their brief as follows:

1. While traveling under orders from Barbados to New York in December, 1899, he was paid $50 as expenses, but was not paid mileage. He claims mileage at the army rate of 7 cents a mile, less the amount already paid him.

2. Between December 2, 1899, when relieved as commanding officer of the U. S. S. Lancaster and ordered to report to the Navy Department, and February 7, 1900, when he took command of the U. S. S. Baltimore at Hongkong, China, he was paid only shore pay, $3,825 a year, 15 per cent less than sea pay. He claims sea pay, $4,500 a year, during that time.

3. From May 26, 1900, to March 1, 1901, he was paid sea pajr of a captain at $4,500 a year, and claims 10 per cent increase of this pay for service in the Philippines and in China, under the acts of May 26, 1900, and March 2, 1901 (31 Stat. L., 211, 903).

4. From March 2, 1901, to June 11, 1901, he was paid the sea pay o'f a captain, $4,500 a year, and claims 10 per cent of this pay for service outside the United States, under the provisions of the act of March 2, 1901 (31 Stat. L., 903).

5. From June 12, 1901, to September 30,1901, he was paid sea pay at $4,500 a year, and claims 10 per cent increase under the act of March 2,1901, for service outside the United States. During this time he was in the waters of San Francisco Bay, traveling- from San Francisco to Puget Sound, and in the waters of Puget Sound. This claim is made provisionally in case his service in Chinese and Philippine waters is not considered to be service “in China” and “in the Philippine Islands,” entitling him to 10 per cent increase from May 26, 1900, to March 1, 1901. In that event, he would claim that his service in waters of the United States was beyond the limits of the States comprising the Union. This claim is asserted only as an alternative to the claim for 10 per cent increase during the earlier period. •

6. He claims commutation of sea ration under Revised Statutes, sections 157,8 and 1585, from July 1, 1899, to September 30, 1901, except from December 3, 1899, to February 1,1900, and on April 5 and 6,1901, when he was not attached to a seagoing vessel.

1. In respect to the claim first mentioned, for mileage, it appears from findings ii and hi that the claimant, while commanding officer of the U. S. S. Lancaster at Barbados, West Indies, was relieved therefrom and ordered to report to the Navy Department. He traveled from Barbados to New York in the merchant steamer Wordsworth, a distance of 2,106 miles, for which he was furnished transportation at a cost of $50.

He claims mileage under the provisions of the Army appropriation act, March 3, 1899 (30 Stat. L., 1064-1068), which reads:

£ a ® » á ri+i ^ § g “ -+-3 O K ¡B ^ ^ ; c3 CD ' H . << H ^ B c S* /<! ^ CD p ^ go © o P c4- % Í <-<- ffl © t GQ <1 >" P ft- ® r P 0 0 W O c PS © 0 50 5- ® ST s © $ | s B CD 5 P CO CD, O ©P >c be paid to officers when traveling to and from our island possessions in the Atlantic and Pacific oceans.”

These provisions the claimant contends are made applicable to him by the provisions of section 13 above quoted.

The claim for mileage, however, is governed by the ease of Chauncy Thomas v. United, States (ante, p. 10), recently decided by this court; and following that decision the claimant is entitled to recover.

2. As to the claim for sea pay while traveling under the order of the Navy Department in a merchant vessel from December 2 to December 12, 1899, such travel being from Barbados, the place of his detachment from the U. S. S. Lancaster, the decision in the case of Ryan v. The United States (post, p. 143), now decided, is controlling, and following that decision the claimant is not entitled to recover sea pay during such travel subsequent to his detachment from the vessel in which he was performing sea service. Nor is the claimant entitled to recover sea pay while traveling to his post of duty on a merchant vessel from San Francisco to Hongkong, for the reason that when he was detached from the U. S. S. Lancaster he thereby ceased to perform sea service and became entitled to the lower or exceptional rate of pay provided for by the proviso to section 13, and that rate of pay continued until he reached the vessel to which he was subsequently assigned, as, “no service shall be regarded as-sea service except such as shall be performed at sea under the order of a department and in a vessel employed by authority of law.”

3. The claim for 10 per cent increase over and above the rates of pay proper from May 26, 1900, to March 1, 1901, for service in the Philippine Islands and in China, is based on the provisions of the army appropriation acts of May 26, 1900, and March 2, 1901 (31 Stat. L., 211 and 903), the first of which provisions reads:

“For additional twenty per centum increase on pajr of enlisted men, four million five hundred and twenty-four thousand seven hundred and fifteen dollars: Provided, That hereafter the pay proper of all officers and enlisted men serving in Porto Kico, Cuba, the Philippine Islands, Hawaii, and in the Territory of Alaska shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pajr proper as fixed bjr law in time of peace.” * * *

That provision, it will be noted, has reference to the service of the Army in our island possessions, while the provisions of the act of March 2, 1901, have reference to service outside the United States and in China, and read as follows:

“For additional ten per centum increase on pay of officers serving at foreign stations, five hundred thousand dollars:
“Provided, That hereafter the pay proper of all officers and enlisted men serving beyond the limits of the United States comprising the Union, and the Territories of the United States contiguous thereto, shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time of such service shall be counted from the date of departure from said States to the date of return thereto.
“Provided farther, That the officers and enlisted men who have served in China at any time since the twenty-sixth day of Maj', nineteen hundred, shall be allowed and paid for such service the same increase of pay proper as is herein provided for.” * * *

Those provisos the claimant contends are applicable to officers of the Navy by virtue of the provisions of section 13, act of March 3, 1899 (supra). But as the provision of section 13 only makes those statutes applicable to officers of the Navy “ when detailed for shore duty beyond seas,” at places similar to those where officers of the Army are detailed for duty, it follows that to entitle the claimant to the 10 per cent increase provided for by those acts to officers of the A rmy. it must be made to appear that the claimant was “detailed for shore duty beyond seas. ”

This he has failed to do. On the contrary, as shown by findings vra to xn, both inclusive, the claimant was in command of the U. S. S. Brooklyn, a vessel in commission for sea service at the Asiatic station, and being in commission, with her complement of officers and enlisted men aboard, it matters not what her proximity was to a foreign shore (United States v. Barnette, 165 U. S., 174); and this was correctly the view of the accounting officers of the Treasury Department, for the claimant was paid during that period the higher ox-sea pay of his gx-ade, as set forth in finding vn.

But, as this question is passed upon adversely to the claimant’s contention in the case of Ryan v. The United States (post, p. 143), we need not pursue it further.

4. The claim for 10 per cent increase on the pay proper from March 2 to June 11, 1901, for service “beyond the limits of the United States comprising the Union and the Territories contiguous thereto,” is also based on the act, March 2, 1901 (supra), being’ the first proviso thereto, as set forth above.

That provision, how'ever, like the preceding one for service in China, is only made applicable to naval officers by the provision of section 13, “when detailed for shore duty bejmnd seas.” As the claimant was serving as commanding officer of the U. S. S. Oregon, a vessel in sea service, during the period claimed for, he was not doing shore duty, and is not, therefore, entitled to recover.

This question is also disposed of bjr the ruling in the case of Ryan v. The United States (supra).

5. The claim for 10 per cent increase under said act of March 2, 1901, from June 12 to September 30, 1901, also for service “beyond the limits of the United States comprising the Onion and the Territories contiguous thereto,” originated, if at all, while the claimant, as shown bjr finding xni, was in command of the U. S. S. Oregon, a vessel in commission, serving in the waters adjacent to the Pacific coast.

This claim is stated by counsel in their brief as an alternative one; that is to say, if the claimant’s “service in Chinese and Philippine waters is not considered to be service in China and in the Philippine Islands, entitling him to 10 per .centum increase from May 26, 1900, to March 1, 1901,” then “he would claim that his service in the waters of the United States was bejmnd the limits of the United States comprising' the Union.”

The claim for the increase in China and in the Philippine Islands is disposed of adversely to the claimant, both in the Kyan case {sup>ra), and in this case, and we will therefore consider the alternative claim for service in the waters of the United States; i. e., in the waters of San Francisco Bay and Puget Sound, and while en route between San Francisco and Bremerton, in the State of Washington.

This service, tbe claimant contends, was service “beyond the limits of tbe United States,” within the meaning of'the act of March 2, 1901, providing “that hereafter the pay proper of all officers and enlisted men serving- beyond the limits of the United States comprising the Union and the Territories contiguous thereto, shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time of such service shall be counted from the date of departure from said States to the date of return thereto.”

But, as before stated, as that act is only made applicable to officers of the Navy by section 13, act of 1899, “when detailed for shore duty beyond seas” at places similar to those at which officers of the Army are detailed for duty, it follows that such service was not shore duty; nor was it service at places similar to those at which officers of the Army are detailed for duty.

The claimant’s service was clearly at sea, as shown by finding vii, and he was paid, during said period, the sea pay of his grade; and he is not, therefore, entitled to the increase of 10 per cent.

Those cases granting the increase of 10 and 20 per cent on the pay proper of officers and enlisted men in the Army were a recognition by the Congress of the extra hazards attending the service in China and in the Philippine Islands, both by reason of the climatic conditions and the oriental and uncivilized modes of warfare, as well as the oontagious diseases common in those countries, with which the land forces had necessarity to come in contact.

These hazards did not apply to the officers and enlisted men of the Navy who were aboard their respective vessels at sea, and therefore to .entitle them to the increase within the meaning of section 13 thejr must show that they were detailed for shore duty in those countries similar to that performed by officers of the Army.

Under this head counsel for claimant also discuss the question as to the basis upon which the 10 per cent increase should be calculated. The acts of May 26, 1900, and March 2, 1901 (supra), say:

“That hereafter the pay proper of all officers * * * shall be increased 10 per cent.” '

The question presented, therefore, is as to the meaning of the words “pajr proper.” That is to say, whether the minimum pay of an officer in the Amy, or his minimum pay plus his longevity pajr, shall form the basis for calculating the increase of 10 per cent.

But as we have reached the conclusion that .the claimant is not entitled to recover the 10 per cent increase provided for by the acts hereinbefore set forth, we refrain from expressing any opinion as to the meaning of the words.

6. The claim for commutation of sea ration under Revised Statutes, sections 1578 and 1585, while attached to a seagoing vessel, is claimed as additional to the allowances provided for by section 13, act of March 3, 1899. Those sections are:

“Sec. 1578. All officers shall be entitled to one ration, or to commutation therefor, while at sea or attached to a seagoing vessel.”
“Seo. 1585. Thirty cents shall in all cases be deemed the commutation price of the navy ration.”

Prior to the passage of the act of March 3, 1899, all officers of the Kavy, “while at sea or attached to a seagoing vessel,” were entitled to the ration or the commutation price therefor.

The defendant’s contention is that bjr the provision of section 13 those sections of the Revised Statutes are repealed by necessary- implication. The provision of section 13 relied upon is:

“ 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.”

The first and obvious rule of construction invoked by the claimant is that repeals by implication are not favored, and that if the provisions of said sections 1578 and 1585 are not repugnant to said section 13 the statutes should be construed toe-ether and effect be eriven to each.

Counsel on both sides have ably presented their views, and cited numerous authorities in support of their respective contentions. The question is one purely of construction, if construction be allowable under the phraseology of the section. '

From the increase in the pay of officers of the Navy, as shown bjr the act of March 3, 1899, the court must assume either that there was some complaint, founded in justice, on the part of the officers of the Navy because their pay and allowances were less than officers of corresponding rank in the Army, or that the Congress, recognizing such inequality, sought to right it. The result was the passage of the act of 1899, by the express provisions of which the officers of the Navy therein classified are given “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.”

The question is, What did the Congress mean by the language used? The claimant’s contention is:

“That the granting of the same pay and allowances operates as a repeal of the old navy pay and allowances onty where the possession of the old navjr pay and allowances is inconsistent with the receipt of the army pay and allowances. ”

They concede that “in granting army pay there is an implied repeal of the navy pay, because there is an inconsistency between the receipt of both army and navy pay.” And further that “the granting of army mileage repealed the navy mileage.” But they say “the sea ration is an allowance which is not inconsistent with army allowances, an allowance for which no substitute is offered by the grant of army allowances,” and which is “peculiarly appropriate to naval service for which there can not be an army equivalent.”

The act then, it is conceded and rightly so, operates to repeal by implication the prior acts granting pajr and mileage to naval officers; and in addition thereto the act of 1899 grants to naval officers the army allowances for quarters and fuel when on shore, an allowance not theretofore granted to naval officers.

Therefore, in these respects it may fairly be said that the inequality in compensation theretofore existing between officers of the Army and Navy were corrected by the act of 1899;-that is to say, thej? are given the “same pay and allowances, except forage, as are or may be provided by or in pursuance of law for officers of corresponding rank in the Army.”

Thus officers of the Navy were not only given the same pay and allowances (except forage) to which officers of the Army were entitled at the time the act was passed, but the act contains a provision making future legislation, in respect to such pay and allowances, applicable to naval officers, thereby indicating the purpose of the Congress to maintain the policy of equality thus established.

The only allowance excepted is for forage, while the only exception in pay is, as set forth in the first proviso, “that such officers, when on shore, shall receive * * * fifteen per centum less pay.”

Another significant provision in the section, however, is the last proviso, which reads:

Andprovided further, That no provision of this act shall operate to reduce the present pay of any commissioned officer now in the Navy; and in any case in which the pay of such an officer would otherwise be reduced he shall continue to receive paj1- according to existing law.”

That proviso, though by its terms applicable to the whole act, excepts from the purview of section 13 those commissioned officers of the Navy whose pay would thereby be reduced, and provides that as to them they “shall continue to receive pay according to existing law.” And that such officers then in the service, who might thereafter be promoted, should continue to. receive the benefit of that provision, the Congress, bj^ the naval appropriation act June 7, 1900 (31 Stat. L., 684-697), provides that'—

“section thirteen of the act approved March third, eighteen hundred and ninety-nine, entitled ‘An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States,’ is hereby so amended as to provide that nothing therein contained shall operate to reduce the paj^ which, but for the passage of said act, would have been received by any commissioned officer at the time of its passage or thereafter.”

The original proviso to section 13 excepted from the purview thereof the commissioned officers “now in the Navy” whose “present pay” was thereb3r reduced, while the amendment thereto extends the exception so as to apply to the pay such officers may receive thereafter in case of promotion to higher grades.

We have thus pointed out the exceptions which we think material to aid us in ascertaining the meaning of section 13 as applicable to the present case. That is to say, the exception to army allowance is forage; the exception to army pay is when on shore, and then to guard against reducing the pay, then being received, section 13 excepts from the operation of the act those officers whose pay would thereby be reduced and expressl3r permits them to “continue to receive pa3T according to existing law. ”

If the Congress intended to continue the naval ration, it would seem that the place so to express it would have been in the proviso, wherein such officers are protected against aiyv reduction of their old Nav3r pa3T.

The words “ same pa3r and allowances” would seem to indicate that the Congress intended, except as therein provided, to conform the pay and allowances of the commissioned officers of the line of the Havy and of the Medical and Pay Corps to the pa31' and allowances of “officers of corresponding- rank in the Arm3r.” Had the word “ allowances ” been omitted from the section, there would be much force in the claimant’s contention. But the act embraces both subjects and the language justifies the conclusion that the act was intended as a new system for both pa3T and allowances.

The words “ same pa3r and allowances, except forage,” can mean but one thing, and that is that after June 30, 1899, the commissioned officers of the line of the Navy and of the Medical and Pa3' Corps ‘ ‘ shall receive the same pay and allowances, except forage,” as now is or may hereafter be provided by law “for the officers of corresponding rank in the Arm3r.”

Certainty those words would not be satisfied b3r giving naval officers less pa3r and allowances than therein provided for, nor would the3r be satisfied by giving them more, except as therein expressly provided for. It was to guard against giving them less pa3r than they were then receiving that the proviso was added, but we find no such provision saving to them the naval ration.

While, on the other hand, the acceptance of navy pay, when higher than army pay, does not operate to deprive such officei’s of the other provisions of the section granting them army allowances when on shore, and this, we think, materially strengthens the views we have expressed herein, i. e., that all the pay and allowances to which such officers are entitled, except as therein provided, are embraced in the act of 1899.

To hold that the words same pay and allowances are inconsistent with prior acts granting pay and mileage to naval officers, though consistent with the act granting an allowance for a ration, would be drawing a distinction without a difference. The words “same pay and allowances” embody a new system applicable to naval officers, and must have a meaning-independent of the prior acts covering the same subjects, except in those particulars as therein specially provided. That is to sa3r, to continue the sea ration to naval officers there must be added to' the words “same pajr and allowances” another proviso to the effect that such officers shall, in addition thereto, continue- to receive the ration provided for by a prior act. To add those or equivalent words would be legislation.

Therefore, in the absence of some such .provision all the pay and allowances to which officers of the line of the Navy and of the Medical and Pay Corps are entitled, except as therein expressly provided, are covered by the language in the purview of the section.

The word “same” means identical, not different oi; other,- and to put a different construction on the language used would be a violation of the well-known rule that where the language is free from ambiguitj” it is not allowable to interpret it.

While the rule is well established that where there are two acts on the same subject effect should be given to both if possible, yet the further equally well-established rule is:

“If the two are repugnant in any of their provisions, the later act, without any repealing clause, operates, to the extent of the repugnancy, as a repeal of the first; and. even where the two are not in express terms repugnant, yet if the later act covers the whole subject of the first, and embraces new provisions plainly showing that.jt was intended as a substitute for the first act, it will operate as a repeal of that act.” (United Staten v. Tynen, 11 Wall., 88, 92, and authorities cited therein.)

The act of 1899 covers the whole subject of pay and allowances to the officers of the Navy embraced in the purview of section 13, among which is the provision, new to naval officers, for army allowances for quarter’s and fuel as provided by Revised Statutes, section 1270, made applicable to naval officers by said section 13 when on shore.

The present case seems to come fairly within the decision last cited. Section 26, act of 1899, being the last section thereto, provides:

“ That all acts and parts of acts so far as the3r conflict with the-provisions'of this act are herebj^ repealed.”

We therefore reach the conclusion that sections 1578 and 1585, granting to naval officers while at sea a ration, are inconsistent with and repugnant to the act of 1899 substituting army pajr and allowances for the pajr and allowance theretofore allowed to officers of the Navy, and being repugnant to said act of 1899 they are, if not by the express provision of section 26, above cited, necessarily repealed by implication.

• The claimant is entitled to recover the sum of $97.42 for mileage,' but the petition in respect to all other claims is dismissed.

Nott, Ch. J.,

dissenting:

The declared purpose of the Navy personnel act is, in its own words (sec. 13):

“That, after June thirtieth, eighteen hundred and ninety-nine, commissioned officers of the line of the Navjr 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.”

Complaints had existed for fifty years that a discrimination was shown bjr Congress against the Navy, and by this statute Congress determined that the two arms of the service should thenceforth be treated precisely alike; that the pay of the Army and the pay of the Navy should be one and the same thing. It was inevitable that in'the application of army law to naval services doubts should arise, but in the application of the statute, the statute has given us one plain general rule for guidance, and that is that the pay of army officers and nav3r officers in like official circumstances shall be precisely alike, save one exception hereafter to be named.

For more than one hundred years the pay of the Navy had been a thing bjr itself, both in fact and in legislation. (Act March 27, 1794, 1 Stat. L., 351.) By this Navy personnel act all provisions relating to the pay of the Navy have been swept from the statute book. When we want to know what pay a naval officer should receive we must turn to the provisions regulating Army pay to see what the pay of an officer of relative rank may be; and when the statutes fixing and regulating Navy paj1, became obsolete all the distinctions and forms and terms of nav3r pa3r became obsolete with them. If the nomenclature of the two arms of the service had been the same, all that the statute need to have said would have'been, “Henceforth the pay of the officers of the Navy shall be the same as that of officers of the Army.”

The controlling purpose of the Navy pérsonnel act being to make navy pay and army pay identical, it becomes the controlling principle b3^ which the statute should be interpreted. The end always to be attained is that the pa37' of an officer of the Navy shall be-the same as the pay of an officer of the Army of relative rank in the same official circumstances. Only one exception of pay is made by the statute. It relates to the detached service of shore duty, and is contained in a proviso to the enacting clause, which is in these words:

u Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty;”

Allowances and the 15 per centum, therefore, are alternative — when an officer is not entitled to the one he is entitled to the other.

But this does not mean that eveiy time when an officer sets his foot on diy land he shall be docked 15 .per cent of his pay. The proviso gives the officer the “allowances” of army officers — i. e., the allowances of army officers on dffiy. The next proviso, which is an amplification of the first, expressly uses the term “shore -duty,” declaring that “when naval officers are detailed for shore duty beyond seas they shall receive the same p ay and allowances as are or majr be provided by or in pursuance of law for officers of the Army detailed for duty in similar places. ” Unquestionably what is meant ly the first proviso is that when officers are on detached service on shore and entitled to allowances they shall be docked 15 per cent of the army pay. Why the statute makes this discrimination against officers of the Navy is not apparent.

To clearly understand this proviso we must understand the condition of army officers “in similar circumstances.”

When 'an arny officer in the line is with his command he shaves the chances of his battalion or regiment or company. If the regiment is in tents, he is in a tent; if the regiment bivouacs in the open air, he bivouacs in the open air; if the regiment is in a fort, he takes such of the officers’ quarters as he can get. But when the officer is placed on detached sendee by proper authority he becomes entitled to quarters or commutation of quarters. It is not every officer absent from his regiment who is entitled to quarters or commutation of quarters, but only such as are placed on detached service by proper authority. When the officer is on detached service he is entitled to commutation, and when he is entitled to commutation it is because he is on detached service.

By analogy, the naval officer on board ship shares the comforts and hardships of those on board; when he is detached from his ship and assigned temporarily to another vessel, he there shares the comforts and hardships of those on board. But when he is placed on the detached service of “ shore duty ” he becomes entitled on the one hand to all the allowances of an army officer on detached service, except forage, and, on the other hand, loses 15 per cent of his regular, ordinary pay. By the same analogy he is not- entitled to these allowances unless he is placed on detached service by the proper authority, and' conversely, he does not lose 15 per cent of his pay until he is entitled to the benefit of the allowances.

As the army pay became the pay of the Navy when navy pay was abolished, so the different kinds of army pay become the pay of naval officers when the conditions of their official duty require a departure from regular or active service pajr. Ordinary pay, longevity pajr, staff pay, leave-of-absenee pay, and waiting-orders pay of the Army become the ordinary pay, the longevity pay, the staff pay, the leave-of-absence paj^, and the waiting-orders pay of naval officers.

It is a well known and established principle in military affairs that an officer assigned to duty by an order issued by proper authority remains charged with that duty and subject to that order until it is superseded bjr another. But there may be an interregnum between the moment when an officer is relieved from one duty before he is assigned to another, and'during that interregnum ho is said to be awaiting orders.

In the present case there was such an interregnum consisting of a single day. But that fact can not affect the result, •for by the Revised Statutes (sec. 1265) army officers “waiting orders, shall receive full pay.”

I come to the consideration of the present case, or rather to one part of the present case — the pay of Captain Thomas when in transit from the command of a vessel on the Atlantic seaboard to the command of a vessel in Asiatic water’s.

This ordinary pay of a naval officer in the performance of ordinary naval duties has been designated as his “regular or normal ” pay. It is the regular or normal pay of aii officer for two reasons: First, because it is pay for the performance of the ordinaiy normal duties of a naval officer; and second, because it is prescribed by the enacting clause of the statute. IV hen Congress were dealing with ordinary pay for ordinary duties, they did so by prescribing the standard of pajT in the enacting clause; but when they were dealing with the exceptional services of naval officers detached from their vessels and assigned to shore duty, they put the legislation in the form of a proviso; that is to say, they made it an .exception to the general rule for naval pay — that is to say, the exceptional pay is for shore service. Of the proviso, it should be held — as was held long ago in the case of the United States v. Dickson (15 Pet., 141-165) — that it “carves special exceptions onty out of the enacting clause; and those who set up any such exception must establish it as being within the vrords as well as within the reason thereof.” Therefore, to bring the claimant within the terms of the proviso it is incumbent on the defendants to show that the claimant was u detailed” for duty on shore.

The genera] principle which- should govern such cases is that where a naval officer is once assigned to the “regular or normal” du.tjT of a sailor (service on shipboard) he remains entitled not to “sea pa}-” but to the regular or normal-pay of an army officer of relative rank, unless he is by proper authority assigned to the exceptional service of shore duty.

What are the facts'in this case?

The facts are that an officer serving on a vessel on the Atlantic station was ordered to report to the Navy Department; that h.e reported December 12, 1899; that on the 13. h he was ordered to proceed to Hongkong for duty on the Asiatic station; that he crossed the continent and sailed ly merchant steamer from San Francisco; that he reported to the commanding officer and was immediately assigned to the command of the Baltimore. The .service which he performed can not be regarded as constructive^ shore duty. He traveled from one vessel to another partly by land and parity on merchant steamers, but that was not shore duty. The orders to come and go in effect precluded him from perform ing shore duty, and certainty gave him no right to allowances. In other words, it does not appear that the defendants have done what the decision in United States v. Dickson says it is incumbent on them to do — they have not shown that the officer was performing duty on shore, and they have not shown that he was assigned to duty on shore, and therefore they have not brought him “within the terms of the proviso.”

For some reason not disclosed to the court the Department wished to confer with this officer and ordered him to come to the Navjr Department. No duty was assigned to him there. He reported at the Department on one day and was ordered to proceed to the Asiatic station on the next day. He had not been detailed to shore duty when he mounted the steps of the Navy Department and reported to the Secretary. If it was not shore duty to go up the steps of the Navy Department under the first order I can not perceive wiry it was shore duty to go down again under the second, there having been no intermediate order of assignment to duty. Certainty the status of this officer continued unchanged until the Department changed it. But no new duty was assigned to him and no change of status was effected. Under the orders be gained nothing in allowances and lost nothing in pay.

It must also be noted that any other rule of construction will embarrass the Secretary of the Navy in the administration of his duties. It is undoubtedly always the right and often the duty of the Secretary of the Navy to confer personally with naval officers. In this instance he majr have wished to obtain information concerning the vessel or fleet on the Atlantic station; or he may have wished to give the officer informal oral instructions concerning movements on the Asiatic station; or he may have wished to see personally and form some estimate of this officer’s intelligence or prudence. If the Secretary of the Navy can not call an officer into his office to confer with him without changing his legal status he will be loath to do so. Certainly such a conference for the information of the Secretary, for the good of the Navy, for public considerations, for no advantage or benefit to the officer, should not be required at his expense.

My conclusion is that this officer not having been “detailed” for “shore duty,” and not having been entitled to “allowances,” was not liable to be deprived of 15 per cent of his pair.  