
    E. ROLLER RICHARDSON v. THE UNITED STATES.
    [No. 22648.
    Decided January 5, 1903.]
    
      On the Proofs.
    
    The claimant is appointed from civil life assistant surgeon in the Navy May 18, 1901. The questions in the case are (1) -whether he is entitled to navy pay when higher than army pay; (2) whether he is entitled to the “mounted pay” of the Army; (3) whether he is entitled to a sea ration.
    I.The purpose of the Navy personnel act, 1899, and the amendatory act, 7th June, 1900, was to secure to officers who were in the Navy when the former act was passed, then and thereafter, so long as they should he in the Navy, as high pay as they would have received if Navy pay had not been assimilated to Army pay. (See Taylor’s case, ante.)
    II.Under the Navy personnel act assimilating navy pay to army pay, an assistant surgeon in the Navy is entitled to the “mounted pay" given by Revised Statutes, §§ 1261,1168. (See Crosley’s case, ante.)
    III. The classification of officers in some statutes, fixing rank and pay, as “ mounted ” or not mounted, is intended to designate the pay of an officer in the cavalry or in the infantry.
    IV. “ Mounted pay" is not an allowance, but pay proper.' The officer to whom it is assigned by statijte receives it, whether he is actually mounted or not. Where a surgeon in the Army is entitled to it a surgeon in the Navy is entitled to it. (See Orosley’S case, ante.)
    Y. Under the Navy personnel act an officer is not entitled to a sea ration. (See Thomas’s case, ante.)
    
      
      The Hei^orteri statement of the case:
    The following are the facts of this case as found by the court:
    I. Claimant was ajipointed from civil life an assistant sur-. geon in the Navy from May 18, 1901, with the rank of lieutenant, junior grade, and accepted his appointment and executed the required oath of office on June 3, 1901. On June 6 following he was ordered to the naval hospital, New York, where he reported on June 10. July 8, 1901, he was detached from the New York hospital and ordered to the naval hospital at Newport, R. I., reporting on the following day. On the 21th idem, he was detached from the naval hospital at Newport, and ordered to the naval hospital at Boston, reporting on July 29. On September 5,1901, he was detached from the naval hospital at Boston and ordered to the U. S. S. Vixen, reporting on said vessel on September 18 and continuing thereon until after October 17, 1901.
    II. The claimant, while on shore, has been paid -at the rate of §1,102.50 a year from dune 3,1901, to September 17,1901, and while at sea at the rate of §1,650 from September 18, 1901, to October 17, 1901, being the pay of a first lieutenant in the Army, not mounted, in his second five-years’ service, as made applicable to a lieutenant, junior grade, in the Navjr, appointed from civil life, by the act of March 3,1899, section 13 (31 Stat. L., 1007).
    III. If the claimant is entitled to be paid at the navy rate of pay fixed by section 1556 of the Revised Statutes as an assistant surgeon in the Navy in his second five years of service, he is entitled to the following sums:
    From June 3 to September 17, 1901, to the difference between $1,402.50 a year and $1,600 a year, amounting to.$58. 74
    And from September 18,1901, to October 17,1901, to the difference between $1,650 a year and $1,900 a year, amounting to. 20.83
    Total. 79.57
    IY. If the claimant is entitled to be paid at the army rate of pajr as a first lieutenant mounted in the second five years of service under sections 1261 and 1262, Revised Statutes, and the act of March 3, 1899, section 13 (30 Stat. L., 1007), he is entitled to the following sums:
    From June 3 to September 17, 1901, to the difference between §1,402.50 a year and §1,496 a year, amounting to. §27. 82
    And from September 18, 1901, to October 17, 1901, to the difference between §1,650 a year and §1,760 a year, amounting to_ 9.16
    Total. 86.98
    ,Y. If the claimant is entitled to be paid while on sea duty at the navy rate of pay of an assistant surgeon in his first five years of service under section 1556 of the Revised Statutes, he is entitled from September 18, 1901, to October 17, 1901, to the difference between $1,650. a year and $1,700 a year, amounting’ to $4.16.
    YI. The U. S. S. Vixen, to which the claimant was attached from September 18 to October 17, 1901, was a seagoing vessel and the claimant was then at sea. He did not receive a ration or commutation therefor. The price of such commutation at 30 cents a day during this period is $9.
    
      Messrs. George A. and William B. Ki/ng for the claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
    1. If claimant’s contention is correct the objects and purposes of the navy personnel act are to a very great extent defeated by the amendatory provision. It has been recognized and construed by this court, by the Comptroller of the Treasury, and by the navy officers generally that the object of the navy personnel act was to equalize the pay of officers holding relative rank with officers of the Army and placing officers of the Navy and the Army upon the same basis for the purposes of pay. But if claimant’s contention is correct he will receive pay at the old navy rate in force prior to the passage of the navy personnel act, which is pay greater than a corresponding officer of relative rank in the Army, and not only this claimant will receive such pay, but all assistant surgeons who have been appointed since the passage of the navy personnel act and all who will be appointed in the future will receive greater compensation than an officer in the Army of the same relative rank as that of assistant surgeons, thus defeating in part the objects, purposes, and intentions of Congress as expressed in the navy personnel act.
    
      “To relieve against the hardship of reducing the pay of certain officers then in the Navy, whose pay would have been reduced by paying' them at army rates, the proviso in question was added, to section 13, enacting in effect that as to such officers the navy personnel act should not operate to reduce their pay. This provision was necessarily temporary, and would in time have become obsolete as officers then in the Navy became separated from the service or were promoted to higher grades. The act of June 7, 1900, was held by this office in the cases above cited to extend the proviso forbidding the reduction of pay below the rates provided by then existing law, so as to cover cases of officers coming into different grades by promotions from those held by them when the navy 'personnel act passed. The term “any commissioned officer,” used in the amendatory act, was limited to the kind of commissioned officers covered by the original proviso relating to reduction of pay, which reduction was the subject-matter of the amendment. To hold that the amendment intended to cover any commissioned officer who might come into the service after June 30, 1899, when section 13 of the navy personnel act took effect, would, in the first place, negative the idea of an amendment at all, as an amendment is supposed to relate to a condition of things existing 'at the time of the passage of the original act, and in the second place it would be repugnant to the general purpose of that section of the navy personnel act which was to equalize the pajr of the two branches of the service.
    “It is stated, as a rule of statutory construction, that a proviso repugnant to the general purview of an act is to be given effect, although it destroys the act itself (Black on Interpretation of Laws, 278); but this rule has been doubted by good authority, and has been characterized as a rule of necessity and of last resort. Special effort is made, therefore, in the interpretation of statutes, to avoid, if possible, any repugnancy between a proviso and the purview of the act; and this rule, I take it, applies as well to the proviso as amended as it does to the proviso in its original form.
    “So, in the present case, it is not to be supposed that Congress, having passed an important measure after due deliberation, intended to effect a certain well-known purpose, should, by chance words in the way of an amendment to a temporary provision in that act, reverse the policy of the original act, and, instead of assimilating the pay of the two branches of the service, make permanent provision for two pay tables for the naval service, each officer to have the benefit of the one giving him the most pay.”
    
      2. If the court should hold in accordance with the Government’s contention on the first proposition presented, namely, that the claimant is not entitled to the old navy pay, but should be paid upon the basis of army }3ay, then the second question as to his right to credit for five years’ constructive service when on navy pay is eliminated from this case. It is conceded that under and by virtue of the provisions in said section 13 of the navy personnel act that claimant is entitled to the five years’ credit while upon arm}*- pay, and he has been given such credit in the computation of his pay. The provision in said section 13, giving a credit of five years’ constructive service for the purposes of computing pay, follows the clause placing the Medical and Pay Corps upon the same pay and allowances as officers of corresponding-rank in the Army, and clearly indicates that Congress intended the credit to be given by reason of the officers being placed upon army pay basis.
    3. An assistant surgeon in the Navy, not being presumed to be mounted, is entitled, therefore, to rank, for the purposes of pay, with a first lieutenant in the Army, not mounted, and therefore claimant’s pay was computed upon the basis of $1,500 per year, plus 10 per cent by reason of his five years’ credit of constructive service, less 15 per cent while on shore duty.
    Now, bearing in mind that it was the intention and purpose of Congress, as expressed in section 13 of the navy personnel act, to place the Medical Corps on an Army basis for the purposes of computing pay, it will be seen that by placing-claimant upon a basis of pay of a first lieutenant in the Army, not mounted, the objects sought by the section have been attained. Because claimant is placed upon the basis of first lieutenant in the Army, not mounted, is no reason for considering that any injustice has been done him. When he was appointed assistant surgeon, he was at once credited with five years’ constructive service, thereby raising his pay immediately from $1,500 to $1,650 per year in the 10 per cent increase, while a first lieutenant in the Army, not mounted, does not get this credit of five years’ constructive service, but must perform five years’ actual service before he is credited with five years’ service, so that he can draw 10 per cent increase on his pay.
    It is true that when on shore duty the 15 per cént less pay by reason of shore duty reduces the pay somewhat of an assistant surgeon in the Navy below that of first lieutenant in the Army, not mounted. But when claimant, as assistant surgeon in the Navjr, is at sea he draws the full $1,650 per year, while the first lieutenant in the Army, not mounted, is paid but $1,500 per year, so we may presume that in the adjudication of pay there is, in summing up the compensation of the two officers, very little difference in favor of either. If either of the two officers is favored it is the officer occupying the position of assistant surgeon in the Navy, for the reason that the difference between the pay of first lieutenant in the Army, not mounted, at $1,500 per year and the pay of an assistant surgeon in the Navy while at sea, $1,650, amounts to $150 per year, while the difference between the two officers’ pay when an assistant surgeon in the Navy is on shore duty is but $97.50 per year. Thus, it will be seen that in the operation of the statute claimant is favored somewhat over a first lieutenant in the Army, not mounted.
   WeldoN, J.,

delivered the opinion of the court:

The claimant was appointed an assistant surgeon in the Navy with the rank of lieutenant, junior grade, May 18,1901; entered upon duty June 3, 1901; served on shore to September 17, 1901, and at sea from September 18,1901, to October 17, 1901.

This suit is brought to recover a higher rate of pay than the claimant was paid.

On September 5, 1901, he was detached from the naval hospital and ordered to the U. S. S. Yixen, reporting on said vessel September 18, 1901, and continued thereon until October 17, 1901.

While on shore he was paid at the rate of $1,402.50, from June 3, 1901, to September 17, 1901, and while at sea at the rate of $1,650, and from September 18 to October 17, 1901, being the pay of a first lieutenant, not mounted, in his second five years’ service as applicable to a lieutenant, junior grade, in the Navy, appointed from civil life under the act of March 3, 1899, section 13 (30 Stat. L., 1007, pp. 10, 11.)

It is contended by the claimant that he is entitled to pay from June 3, 1901, to September 17, 1901, the difference between $1,402.50 and $1,600 per annum, amounting to the sum of $58.74; and from September 18, 1901, to October 17, 1901, the difference between $1,650 per annum and $1,900 per annum, amounting to the sum of $20.83.

It is further contended if not entitled to be paid at said rate he is entitled to army rates as first lieutenant, mounted, in his second five years’ service from June 3, 1901, to September 17, 1901, the difference between $1,402.50 and $1,496 per annum, amounting to the sum of $27.82, and from Sejffember 18, 1901, to October 17, 1901, the difference between $1,650 and $1,760 per annum, amounting to the sum of $9.16, making as an aggregate $36.98.

It is further insisted, if paid while at sea at the navy paj^ as lieutenant (junior grade) in the first five years of service, he is entitled from September 18, 1901, to October 17, 1901, to the. difference between $1,650 and $1,700, amounting to $4.16.

It is also claimed that, by sections 1575, and 1586, Revised Statutes, all officers while at sea or attached to seagoing-vessels are entitled to one ration per day, or commutation therefor, the price of which is fixed at 30 cents per day; that the claimant, not having received such ration or commutation from September 18, 1901, to October 17, 1901, is entitled to recover the sum of $9.

The statutes applicable to the questions arising in this case are as follows:

I. Act of March 3, 1899 (the navy personnel act), section 13 (31 Stat. L., 1007):

“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.”

II. Act of March 3, 1899, section 13, first proviso (31 Stat. L., 100Í)

“Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty; but this provision shall not apptyto warrant officers commissioned under section twelve of this act.”

III. Act of March 3, 1899, section 13, third proviso (31 Stat. L., 1007):

“ Provided further, * * * and that all officers who have been or may be appointed to the Navy from civil life shall, on the date of appointment, be credited, for computing their pay, with five years’ service.”

IV. Act of March 3; 1899, section 13, fourth proviso (31 Stat. L., 1007):

“And¡providedfurther, 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 pay according- to existing- law.”

V.. Act of June 7, 1900 (31 Stat. L., 697):

“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 pay which, but for the passage of said act, would have been received bj' any commissioned officer at the time of its passage or thereafter.”

Yl. Act of June 7, 1900 (31 Stat. L., 697):

“Assistant surgeons shall rank with the assistant surgeons in the Army.”

The facts of this case present for the consideration of the court, briefly stated, the following questions:

Is the claimant entitled to be allowed nav3r pay if higher than the army pay under the fourth proviso of the act of March 3, 1899, as amended by the act of June 7,1900, amending the thirteenth section of the act of March 3, 1899; and if so, is he entitled to five years’ constructive service; and, second, if not entitled to navy pay, is he entitled to mounted pay in the Army; and, third, is he entitled to a sea ration when serving on a seagoing’ vessel?

We shall consider the foregoing questions in the order stated: First, as to the right of the claimant to receive the pay of the Navy when it is higher than the pay which an officer of like rank would receive in the Army. The general purpose of the act of March 3, 1899 (supra), was to establish uniformity in the pay of like rank in the Army and Navy, and that purpose and policj^ is accomplished by the general provisions of said act, subject to certain provisos and exceptions which will be noted. In consequence of the general purpose of establishing a uniform grade of pay between the Army and the Navy, the act of March 3, 1899, has exceptions and provisos, and from those arise the issues in this proceeding.

It is insisted by the claimant that under the amendment of the act of March 3, 1899, by the act of June 7, 1900, that he 'is entitled to recover the higher paj? of the Navy and is not remitted to the lower pay of the Army. As against that contention it is argued by the counsel for the defendants that the act of June 7, 1900, was intended only to amend the act of March 3, 1899, so as to preserve the rights of the officers in the Army at the time of the passage of said act against the consequent diminution of their pay, because without the amendment of the act of June 7, 1900, officers advanced in the grade without the advancement in rank would lose the increase of pay incident to their promotion.

The plaintiff insists that the latter act was intended for the benefit of all officers in the Navy at the. time the act of March 3, 1899, was passed and of all persons who might become officers after the date of said act. It is admitted that the claimant does not come within the provisions of the act of March 3, 1899j inasmuch as he was not an officer in the Navy at the time the act was enacted, but falls within the provisions of the act of June 7, 1900, as that act applies to any commissioned officer.

The proviso to the first of the foregoing acts was intended, as shown bjT its language, to protect officers then in the Navy against a reduction of pay by the operation of that statute; it was found in the practical application of the law that an advance in grade without an advance in rank had the effect to deprive officers of the increase of pay incident to their promotion. For the purpose of preventing that result, Congress enacted the amendment of June 7, 1900, by providing that the act of March 3, 1899, should be so amended that nothing therein contained shall operate to reduce the pay, which, but for the passage of the act of March 3, 1899, would have been received by any commissioned officer at the time of its passage or thereafter.

It is not safe to infer that Congress intended to depart from the policy of confining navy pay in certain cases to officer’s in the Navy at the time the personnel act was passed and by the amendment of the latter act of June 7, 1900, to enlarge the scope of- the first statute so as to permit all officers then in the Navy and all that might become officers in the Navy thereafter the benefit of the increased pay. That officers in the Navy at the time the personnel act was passed should not be reduced in pay was an obvious and just exception; and to have such an exception preserved in all grades is very obvious and just, which thereby prevents the promotion in grade from working a diminution of pay.

To maintain the theory of the claimant our attention is called to the case of De Lima v. Bidwell (182 U. S., 1), in which it is said:

“ While a statute is presumed to speak from the time of its enactment, it embraces all such persons or things as subsequently fall within its scope, and ceases to apply to such as thereafter fall without its scope. Thus, a statute forbidding the sale of liquors to minors applies not only to minors in existence at the time the statute was enacted, but to all who are subsequently born, and ceases to apply to such as thereafter reach their majority.”

The statute cited embraces a class of persons in which there is no distinction or classification, and was intended to apply to a general class, having equal rights of protection; but -in the case at bar the officers of the Navy in rank and pay embrace a great variety of conditions, depending upon their legal status and connection with the naval service.

The plaintiff also relies on the case of Pearson v. United States (37 C. Cls. R., 60), in which it is said:

“In case of doubtful construction it is safe for a court to look into the conditions surrounding the subject-matter, of the litigation at the time the act was passed, but if the words employed are unambiguous and not made doubtful by the subject-matter to which they are applied, courts must give full' effect to the language used.”

The rule of construction or rather the application stated by the Supreme and this court is the law sustained by reason, but does the contention of the claimant come within the application of that rule?

If Congress had intended absolutely to repeal the qualification of being in the Navy, that purpose could have been most easily accomplished by the elimination of the term “now in the Navy;” but instead of the direct repeal of that qualification as to the right of a navy officer, the phraseology of the statute in that particular is'unchanged, except possibly by inference which might arise from the language of the amendment. The act of March 3,1899, certainly confined the benefits of continued pay at the rate theretofore received to officers in^the Navy, and the amendment, without the distinction of a new class, provided that nothing contained in said act should operate to reduce the pay, which but for the passage of said act would have been received by any commissioned officer at the time of the passage or thereafter. The term “thereafter” does not mean persons who thereafter shall become officers in the Navy, but was intended, as the court holds, to-the pay which might accrue thereafter to persons in the Navy under any law in existence at the time the exception was made in favor of persons then in the Navy.

The second contention is that the claimant is entitled to “mounted pay ” corresponding to his rank in the Armj'-, which is that of a first lieutenant. The pay of a first lieutenant is fixed by section 1261 at $1,600 per year when mounted, and $1,500 per year when not mounted. The claimant’s pajr was computed on the basis of $1,500 per year plus 10 per cent, by reason of his five years’ credit for constructive service, less 15 per cent while on shore duty. Section 1168, Revised Statutes, provides that—

“The medical department of the Army shall consist of one surgeon-general, with rank of brigadier-general, one hundred and fifty assistant surgeons, with rank of lieutenant of cavaliy for the first three years of service and the rank of captain of cavalry after three years’ service.”

The service as lieutenant is changed to five years by the act of June 23, 1814 (1 Supp. R. S., 45), and the number is increased by the act of February 2, 1901 (sec. 18, 31 Stat.- L., 752), to 240.

The personnel act of March 3, 1899, 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 pay and allowances, except forag’e, as are or may be provided by or in pursuance of law for the corresponding-rank in the Army.”

This statute, read in connection with section 1168 of the Revised Statutes, which provides “that assistant surgeons shall rank with a lieutenant of cavalry for the first three years of service and with the rank of captain of cavalry after three 3rears of service,” fixes the rank and pay of the claimant in this case.

It is provided in the act of March 3,1899, that the commissioned officers of the Navy shall receive the same pay and allowances, except forage, of an officer of the corresponding-rank in the Army. The only exception in the act of 1899 against the officer in the Navy is that he shall not receive forage, it being in contemplation of Congress that the navy officer was not necessarily a mounted officer, and, therefore, an exception is made against him in the allowance of forage.

Section 1261 of the Revised Statutes provides that the officers of the Army “shall be entitled to the pay therein stated after their respective designations.” In those designations we find first and second lieutenants “mounted” and “not mounted,” thereby recognizing a condition applicable to officers of that class dependent upon whether they belong to the cavali-y or the infantry service. A lieutenant in the cavalry is presumed to be mounted, a lieutenant in the infantry is presumed not to be mounted, and the classification of “mounted” and unmounted pay was intended in a general way to mark a distinction between the pay of an officer engaged in the cavalry and an officer engaged in the infantry service. The “mounted pay” was not an allowance, but a part of the officer’s pay proper, and the purposes of the personnel act of March 3, 1899, was to fix an equality of pay proper between the officers of the Navy and the Army corresponding in rank, where such pay is not qualified or changed, in the rate of pay of an officer in the Army.

The disallowance of forage was a discrimination against the officer of like grade or rank in the Navy, because the necessity of forage did not exist, and, therefore, the right is not incident to the officer serving in the Navy, but in all other particulars his pay was left equal to the officer of like rank in the Army. The pay of the rank is taken as the basis of the pay of the claimant, and is not based upon the theory that he majr be mounted, but upon the basis that mounted pay is designated as the measure of his compensation.

The question as to whether the claimant is entitled to a ration or commutation for the same while serving on a seagoing vessel is decided in the case of Charles M. Thomas (ante, p. 113) adversely to such claim, and upon the authority of that decision that claim is disallowed. Upon the whole case the court decides that the claimant is entitled to be paid at the rate of mounted pay the sum of $36.98, as shown in the findings, and for the further sum of $4.16, as shown in finding v, making in the aggregatethe sum, $41.14, for which a judgment is given.  