
    WILLIAM G. MILLER v. THE UNITED STATES.
    [No. 28123.
    Decided May 7, 1906.]
    
      On the Proofs.
    
    In the Army an aid to a major-general is allowed by law “ $200 a year, in addition lo pay of his ranJc (Rev. Stat., § 126Í) ; and by the Navy personnel act officers of the Navy are to receive the same pay as officers of the Army of correlative rank. The question in the case is whether an officer of the Navy assigned to duty on the personal staff of the commander in chief as flag lieutenant is an aid and entitled to this additional pay, he not being designated as aid in the order of assignment.
    I. A naval officer assigned to duty on the personal staff of the commander in chief on the Pacific Station as flag lieutenant, and by no other designation, is an aid and entitled to the additional pay of $200 given to the aid of a major-general in the Army by Revised Statutes, § 1261. The decisions affecting the question reviewed.
    II. The admiral in this case, upon whose personal staff the officer served, was one of the nine higher of the grade receiving the pay of a major-general in the Army. Whether the aid of one of the admirals of the lower grade receiving the pay of brigadier-generals in the Army would be entitled to the additional $200 a year is a question not presented by the ease.
    
      III. An aid to an admiral is entitled to have his longevity pay calculated upon the additional pay which he receives as aid. The Act 30th June, 1882 (22 Stat. L., p. 118), was designed to cure a defect in the computation of longevity pay. To make this statute exclude from the computation the additional pay of an officer given by statute would bring about a result not intended by Congress.
    
      The Reporters'1 statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, William G. Miller, entered the naval service as a naval cadet on October 1, 1881. From July 1, 1899, to March 2, 1900, inclusive, he was a lieutenant of more than fifteen years’ service in the Navy.
    II. While on duty on the U. S. S. Oneida he received the following order:
    “ Navy Department,
    “ Washington, Sept. 16, 1898.
    
    “ Sir : When the U. S. S. Oneida is placed out of commission you will regard yourself detached from the command of that vessel, will proceed to San Francisco, Cal., and report to Commodore Albert Kautz, U. S. N., commander in chief of the Pacific Station, on the iOth proximo, for such duty as he may assign you on his flagship.
    “ Respectfully,
    
      “ John .D. LoNG, Secretary.
    
    “ Lieutenant William G. Miller, U. S. N.,
    
      “Commanding U. S. S. Oneicla.”
    He reported for duty to the commander in chief, Pacific Station, on board the U. S. flagship Philadelphia, on October 15, 1898, and on the same day was assigned to duty on the personal staff of the commander in chief as flag lieutenant.
    He continued to serve as flag lieutenant on the staff of Rear-Admiral Kautz until March 2, 1900, when he was detached and ordered to other duty.
    During this period the personal staff of Rear-Admiral Kautz consisted of two officers, one (the claimant) designated as flag lieutenant and the other as flag. secretary or' clerk.
    
      Near-Admiral Kautz was at that time one of the nine higher numbers of the grade of rear-admiral.
    III. The duties of the officers constituting the personal staff of a rear-admiral have shown by the following letter and other evidence to be as therein described:
    “ Navy DepartmeNt,
    “ Washington, April 25,1905.
    
    “Sm: Neferring to your No. 34534-KSJ, of April 22d, relative to the duty of Lieutenant L. M. Garrett, U. S. Navy, while on the personal staff of Near-Admiral Kautz:
    . “ 2. The Department’s former letter of the 18th instant, in reply to the letter from the Treasury Department, dated the 15th idem, on this same matter is based upon the following considerations:
    “ 3. The Department desires to point out, in considering the question of who are and who are not aids of a flag officer, the facts as follows:
    “ 4. Flag officers of the Navy have assigned to them a certain number of officers on their personal staffs, who, in naval parlance, have been entitled as follows, namely: Flag lieutenant (usually one) ; the flag secretary (usually one) ; and as many aids as are necessary to the work of the commander in chief. As in the case of a general officer of the Army, these officers, including the flag lieutenant, are, in every acceptation of the word, aids for assisting the commander in chief in the performance of his duties. The number of officers thus assigned is limited only by the actual necessities of the case. ' In very large fleets, where the -staff work is especially heavy, two or three so-called aids may be necessary in addition to the flag lieutenant and the secretary. They are all, from flag lieutenant to the lowest aid .in point of rank, aids in every sense of the term to the flag officer. The senior aid of the flag officer is, in ninety-nine cases out of a hundred, chosen by the flag officer personally as a flag lieutenant. The term ‘ flag lieutenant ’ in itself by no means indicates all the duties which the officer so appointed performs. Different flag officers distribute their duties among the members of the personal staff in different ways. Some have charge of one thing, or set of things, another has charge of other things; but, from time immemorial, in other naval services as well as our own, it has been customary to term the senior aid of the flag officer the ‘ flag lieutenant ’ because, from time immemorial also, that aid has been placed in charge, as one of his duties only, of the signal work of the fleet or squadron in which he may happen to be serving. This duty forms only a small part of his general duties. As stated before, he is chosen personally for his qualities in nearly all cases by the flag officer, because he is to have, as the senior member of his staff, the most confidential relations with his flag officer. It is customary whenever the flag officer leaves his vessel, officially or socially, to be accompanied by his flag-lieutenant. He is also sent on confidential duty by the flag-officer to captains of vessels in the fleet, or to carry out some particular duty where his presence as a representative of his flag officer gives the message or intelligence from the flag-officer an official character which could not otherwise be given. This applies particularly in his duties which take him to foreign flag officers or captains, where he is always received as the direct representative of his own flag officer. It will be seen from this that the flag lieutenant is’m every respect the aid, peculiarly, of the flag officer, and his duties, in comparison with those of an aid to a general officer, more nearly conform to those performed by a military aid than do those of any other officer on the personal staff, of a flag officer.
    “ 5. There are very good reasons why the aids to a general receive extra compensation for their services while on the staff of a general. They are required at all times to present the best possible appearance personally, demanding extra expenditures in the way of uniforms, etc., which all other officers are not required to make. They are required also to travel with the general, and consequently meet with man}'expenses that they would not otherwise have and for which no adequate bills could be rendered for proper settlement officially! A flag lieutenant stands in exactly the same relations to a flag officer. As the persona] representative or aid of the flag officer, he is also required to maintain his uniforms in the very best condition. He also has a great many expenses when with the flag officer which can not be met by rendering bills constantly for official settlement.
    “ 6. In the same manner, as stated in regard to the flag lieutenant, flag secretaries, now usually termed ‘ aids,’ are aids to their flag officers as much as any aid is to a general officer of the Army appointed to perform similar duties. The other aids of a flag officer or a general officer of the Army are simply termed ‘ aids ’ because there is nothing particular in their duties which tends to furnish a definite Avord other than that of ‘ aid ’ to describe them; but the Department desires to point out particularly that the officers of the personal staff of a flag officer of the Navy are in every respect as much aids to that flag officer as are the aids of a general officer of the Army, the only difference being that, as pointed out in the case of a flag lieutenant and sometimes the flag secretary, certain duties have from time immemorial served to give them a title which has been perpetuated to the present day, and of all the aids to a flag officer no one officer performs duties which more nearly correspond to' those of an aid to a general officer of the Army than a flag lieutenant.
    “ Lieutenant Garrett received no orders to duty as aid to Rear-Admiral ICautz other than the order dated March 7, 1900.
    “ Very respectfully,
    “ Paul MoetON, Secretary.
    
    “ The Auditor eor the Navy Department.”
    IV. The customary duties of an aid to a major-general in the Army are of a personal nature; he accompanies and assists the general on visits of ceremony and official social occasions; he represents the general in extending official courtesies to visiting officers in the Army and Navy; he performs the duties of signal officer in the absence of the officer regularly assigned to that duty; he has charge of the enlisted men detailed at headquarters.
    V. From July 1, 1899, to March 2, 1900, claimant was paid at the rate of $2,400 a year, being the pay at navy rates of a lieutenant in the first five years after date of commission.
    If he is held to be entitled to an additional $200 a year with longevity increase on the same for service as flag lieutenant or aid to Rear-Admiral Kautz, the amount due is $134.45, shown by the reply of the Auditor for the Navy Department, as follows:
    Army sea pay of a lieutenant, after fifteen years’ service fi;om July 1, 1899, to March 2, 1900, eight months and two days, at .$2,840 per annum_$1, 573. 00 Aid’s pay for same period, at $200 per annum- 134. 45 Longevity on aid’s pay for same period (30 per cent), $60.. 40. 33
    1, 747. 78
    Less pay received as lieutenant first five years, at $2,400 per annum for above period-,-- 1, 613. 33
    Difference_ ' 134. 45
    
      Mr. Geo. A. King and Mr. Wm. B. King for the claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Van Orsdel) for the defendants.
   IíowRY, J.,

delivered the opinion of the court:

This is one of a class of cases ruled adversely to the material contentions of the plaintiff in a similar case by the accounting officers of the Treasury, and deriving its importance from the rule adopted as to the status of a flag lieutenant claiming pay as an aid to a rear-admiral, as well as from the method of computing this pay if his status should be determined to be that of an aid. (Comp. Dec. Mss.)

The claim is based on that clause of section 1261 of Revised Statutes which makes the following provision:

“ The officers of the Army shall be entitled to the pay herein stated after their respective designations: * * *
“Aid to major-general: $200 a year, in addition to pay of his rank.”

This clause applies to an aid of a rear-admiral under and by virtue of section 13 of the navy personnel act of March 3, 1899 (30 Stat. L., 1007). But the question here is: Was plaintiff an aid within the meaning of the statute ?

Plaintiff’s contention is that, though he was a flag lieutenant, he was assigned to duty on the personal staff of the commander-in-chief as an aid; that the term “ aid ” is used in two senses in the Navy, one in a generic sense and meaning the officers constituting the personal staff of a flag-officer, and another in a narrower sense, that is, that the aids additional to the flag lieutenant and flag secretary are aids to a rear-admiral in the same sense as the officers on the personal-staff of a major-general within the meaning of section 1261 of the Revised Statutes. Plaintiff undertakes to fortify his contention by what he says is departmental construction and by a decision of this court affirmed on appeal by the Supreme Court. (Crosley v. United States, 38 C. Cls. R., 82; 196 U. S., 327.)

Defendants contend, on the authority of Treasury rulings, that the additional pay is allowed to “ aids ” who are designated as such, and that the extra compensation given in one case in this court was allowed only because that officer had been specifically designated as “ aid ” to a rear-admiral. It is denied that the courts have settled the question, and also denied that judicial construction can bring the claim of a flag lieutenant as an aid to a rear-admiral within the letter of the regulations and statutes.

The decision of the Secretary of the Navy that officers, including flag lieutenants, are “ aids ” in every sense where assisting the commander in chief for the performance of his duties is a departmental construction not controlling, but of great weight. But the decision of the courts in Crosley's caw (supra) need only be considered to determine the contention.

It is true that in the case of Crosley that officer was specially designated as “ aid,” and that here, there was no such previous designation. But Crosley. was a flag secretary. That fact was in the record. The officer in this case was a flag lieutenant when the service, as “aid” .was rendered. ■There is no such office in military or naval life as “ aid.” If there be no such distinctive office, there could not be a separate officer for the discharge separately of these aids’ duties. The duties of an aid are performed by some officer, either by an order designating him to serve as an aid or by actually calling him in to serve as such on the staff of the commander in chief. The duty performed by this officer was a corresponding duty to the duty performed by an army aid, and we think it is too narrow a construction to say that a flag lieutenant who actually served as an aid to the commander and performed the same duty as an army aid should not be considered for purposes of pay also to be an aid and entitled to the pay. We are unable to see any distinction ■between this and the ruling of this court and the Supreme Court in the Grosley case, and we must hold that the case is ruled by that.

In computing the'amount of pay this flag lieutenant is entitled to claim as an aid it is contended by the defendants that it has not been shown whether the rear-admiral under whom the claimant served during the time covered by this claim was a rear-admiral in the 9 lower or 9 higher numbers. The findings dispose of this contention. Rear-admirals are divided into two classes for the purpose of pay, the 9 higher being paid according to corresponding rank in the Army, that of major-general, while the 9 lower receive only the pay of a brigadier-general in the Army. The rear-admiral under whom the plaintiff served as aid was at the time of the service one of the 9 higher numbers of the grade of rear-admiral. (Prov. sec. 7, personnel act.) This proviso has been held, properly, we think, to be a limitation on the pay of the rear-admirals themselves, but does not affect that of their aids.

A more serious contention arises from the argument that the longevity increase of this officer be calculated upon the pay which the officer received, excluding the pay he received as an aid.

The following amendment was enacted June 30, 1882, to wit: “ That from and after the 1st day of July, 1882, the 10 per centum increase for length of service allowed to certain officers by section 1262 of the Revised Statutes shall be computed on the yearly pay of the grade fixed by sections 1261 and 1274 of the Revised Statutes.” (22 Stat. L., 118.) This statute was designed to cure a defect in the former statutes under which longevity pay was in a manner compounded. During his first five years the officer received his grade pay as fixed by section 1261 of the Revised Statutes. During his second five years he received that grade pay increased by 10 per cent thereof. During his third five years he received not only the grade pay and two 10 per cent increases thereon, but also 10 per cent increase on the first longevity increase received during the previous five years. The amendment of 1882 was evidently designed to restrict computation of the longevity increase to the grade or basic rates of pay fixed by section 1261 without also computing them upon the-previous longevity increases of which the officer was already in receipt. It would seem that the term “ yearly j>ay of the grade ” as used in this amendment was employed by Congress as synonymous with “ grade pay,” and there is great force in the contention of plaintiff that the right to longevity pay on the aids’ pay fixed by section 1261 would be taken away by the act of 1882 by the construction claimed by defendants. This would bring about a result that Congress in legislating to take away one thing which it had especially in mind inadvertently took away another- not designed to be taken away.

That aids’ pay is a proper portion of the claim seems to be in accordance with the spirit of the decisions of this court in Irwin v. United States (38 C. Cls. R., 101) and United States v. Mills (197 U. S., 223) construing the term “ pay proper.” This phase of the matter is directly supported by the decision in Crosley (supra). The judgment in that case included longevity pay on the flag secretary’s pay as aid, and Mr. Justice Day concludes his opinion in that case by allowing the sums claimed in the petition and carried into the judgment except as to mounted pay. Notwithstanding this, defendants contend that the matter should be reviewed because it was a matter of inadvertence.

The contention now. made was not raised by the United States in Owsley's case either in this court or in the Supreme Court. The computation was made on Crosley’s claim just as the officer’s pay as aid was entitled to be considered. The amount of the officer’s pay as an aid was estimated as a part of his “ jia}'’ proper,” as much as the longevity increase, as long as he served as an aid. This is the liberal view. At the same time it can not be denied that the statute is susceptible of a restrictive construction that will exclude the officer from having the compensation growing out of his services as an aid taken into the account in computing the pay. And different minds might reach different conclusions about the matter if it were a question of first impression.

But it is not a matter which this court can change, since the question is settled in Owsley's case by the Supreme Court, even if we were disposed to adopt a different rule.

Judgment will be entered for plaintiff in the sum of $134.45, as prayed for in the petition.  