
    ALBERT C. ENGARD v. THE UNITED STATES.
    [No. 23133.
    Decided May 25, 1903.]
    
      On the Proofs.
    
    In February, 1897, the chief engineer of the Richmond, lying at League Island, is ordered by the Secretary of the Navy to Shelby, Ohio, “for temporary duly in connection with the inspection of steel tubes for boilers.” “This duty is in addition to your present duties.” The officer goes there twice. The question is whether he should continue to receive sea pay while his duties on the Richmond continue, he being absent from the vessel on “temporary duty.”
    
    I. The statute relating to sea pay (Rev. Stat., § 1571) has never been applied literally by either the Navy Department or the accounting officers or the courts. A life on shipboard involves greater sacrifices, discomforts, and expenses than a life on shore duty; and the plain purpose of Congress is that the Government shall pay more when the officer renders more.
    II. 'Under the Navy Regulations “An officer temporarily absent from a ship in commission, to which he is attached, shall continue to receive sea pay.” An officer attached to a vessel, but ordered ashore by the Secretary of the Navy “for temporary duty,” and by the same order notified that “this duty is in addition to pour present duties,” i. e., duties on his vessel, comes within the regulation and is entitled to sea pay. Wright, dissenting.
    
      III. So long as an. officer remains attached to a vessel with duties to discharge there and responsibilities to bear, he can not be deprived of his sea pay by imposing upon him temporary additional duty to be discharged on shore. Wright, J., dissenting.
    
      The Reporteri statement of the case:
    The following- are the facts of the case as found by the court:
    I. On the 11th day of February, 1897, the claimant was a chief engineer in the United States Navy on the active list, performing duty on the U. S.- It. S. Richmond, at League Island, Pa. On February 11, 1897, the following order was issued to him:
    “4915L-G “ NAVY DEPARTMENT,
    “ Washington, February 11, 1897.
    
    “Sir: Report, by letter, to the president of the Steel Inspection Board, navy-yard, Washington, D. C., for temporary duty in connection with the inspection of steel tubes for the boilers of torpedo boat "No. 11, at Findlay, Ohio, and at Shelby, Ohio.
    “You are authorized to perform such travel between Lague Island, Pa., and Findlay, Ohio, and between League Island, Pa., and Shelby, Ohio, as may be necessary in the performance of this duty.
    “ Keep a memorandum of the travel so performed by you, certifying to its necesshy, and submit the same to the Department, from time to time, for its approval.
    “ This duty is in addition to your present duties.
    “ Vey respectfully,
    “ W. McAdoo, Acting Secretary.
    
    ‘ Chief Engineer Albert O. Engard, U. S. Navy,
    
      11 U. S. R. 8. Richmond, Navy- Yard, League Tsla/nd, Pa A
    
    xl. In accordance with this order the claimant made two round trips between League Island, Pa., and Shelby, Ohio, to inspect steam-boiler tubes for torpedo boat No. 11.
    “First jornmey: I left League Island, Pa., February 21, when informed by the Shelby Tube Company that the tubes were ready for inspection. After inspecting all of the tubes that were ready, I returned to League Island, Pa., April 27, 1897.
    “Second journey: I left League Island, Pa., June 15,1897, when informed by the chief of the Bureau of Steam Engineering that the remainder of the tubes were ready for inspection. I returned to League Island, Pa., August 14, 1897, after the duty had been completed. ”
    
      The total number of days of absence from claimant’s vessel — one hundred and twenty-two.
    III. The claimant made application for mileage upon this trip amounting to §172.80, and was allowed this amount as mileage by the Auditor for the Navy Department. From this sum there was déducted the difference between sea pay and shore pay at the rate of §400 a year for one hundred and twenty-two days absent from his vessel, alleged to be on shore duty, amounting to §133.70, and the balance as mileage (§39.10) was paid him.
    IV. The claimant has never recovered the balance of mileage claimed.
    
      Messrs. George A. and William B. Wmg for the claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Pradf) for the defendants:
    In analyzing the statute the learned judge who delivered the opinion of the court in the case of Symonds v. The United Sta,tes said: “Bj7-section 1571 the concurrence of two conditions is required to constitute sea services. First, they must be performed at sea. Second, the}7 must be under the orders of a department and in vessels employed by authority of law.” (See 21 Court of Claims, p. 154.) Here, then, is the standard l)}7 which claimant’s services must be measured in seeking to determine his pay.
    And in further construing said section of the statute, Judge "Weldon formulated into words a principle that has ever since been recognized as authority by court and counsel, and has almost passed into a maxim of the law, to wit, “The legal essence of things can not be changed by a mere name. ”
    The claimant’s services during the time he was absent from his vessel inspecting the steel in no sense complied with the conditions fixed in the statute for sea service. During the officer’s absence bo was not performing service at sea and was not performing service in a vessel employed by authority of law, and his duty under the order we have given can not be construed by anj7 possible contortion of the English language into sea service. No kind of declaration can change the shore dut}7 performed b}7 claimant into sea duty, and inasmuch as his services can not possibly be construed as services at sea, he is not entitled to sea pay. The mere fact that he was not formally detached from his vessel during the time that he was performing shore duty does not change the character and nature of the shore service into sea service.
    In the case of Wycoff (34 C. Cls. R., p. 288) the claimant was in command of the naval station at Puget Sound. The court allowed sea pa}'', notwithstanding there was no formal order attaching the officer to a seagoing vessel, except the order giving him the additional duty of commanding the IT. S. S. Nipsic. That order, as has been seen, was simply adding additional duties to the duties performed by the officer on shore. His duties were shore duties, and the sea duties were given to him as additional service.
    In the case at bar claimant’s duties wore sea duties, but the additional duty of shore service was given by the order, the latter clause of which reads: “This duty is in addition to 3Tour present duties.” ■ There was no specific order detaching the claimant from the seagoing vessel, but the order was of such nature that clearly showed his dut}' to be shore service during the time he was engaged in performing the inspection of the steel tubes, as required by the order.
    This court has repeatedly announced the doctrine and recognized the principle that the character of the service rendered by the officer determines his pay and not the order of the executive officer assigning him to duty. (See Wycoff and Simonds cases heretofore cited; Bishogo, 21 C. Cls. R., p. 215; Strong, 23 C. Cls. It., p. 17; Aulick, 27 C. Cls. R., p. 109; Barnette, 30 C. Cls. R., p. 197, affirmed 165 U. S., p. 174; llann.um, No. 21980, decided bj' this court February 19, 1891; McGowan, No. 21779, decided February 11, 1901; Taussig v. The United States, 38 C. Cls. R.)
   Nott, Ch. J.,

delivered the opinion of the court:

The statute relating to sea pay (Rev. Stat., 1571) is sweeping in its terms, but in neither departmental nor judicial construction has it been taken literally.

A ship at anchor is not a ship at sea; a ship sailing up a river is not a ship at sea; a ship in service on inland waters is not a ship at sea; a ship hauled up on a dry dock in a foreign port is not a snip at sea; a ship fighting her way up the Mississippi in 1862 was not a ship at sea; yet in all of these cases it has been held by the accounting officers or the courts that officers serving on such vessels were entitled to sea pay-— that a ship at sea means nothing more than a ship afloat, she being at the same time so commissioned, authorized, and organized as to be able to render some kind or other of marine service.

As with the vessels, so with the officers, the statute has never been applied literally. The plain purpose of Congress is that the Government shall pay more where the officer renders more. Service on shipboard involves the breaking up of arrangements for living on shore; separation from family and friends; increased expenses and expenditures; increased hardships and duties, and many personal restrictions. The invariable questions which have been asked in doubtful cases have been, “Was the officer deprived of the ease and comfort and economies of shore duty?” “Did the service to which 'he was assigned require the sacrifice and discomforts and expenses of a life at sea ? ” If it did, he was entitled, within the legislative intent, to be considered on duty in a ship at sea; if it did not, he was entitled to no more than the pay of an officer on shore duty.

It is also as well settled as the Navy Regulations and the action of the accounting officers and the decisions of the court can make it that the sea pay of an officer does not stop every time he sets his foot upon the shore. (Collins's Case, 37 C. Cls. R., 222.) There is a difference between “shore duty” and duty on shore. It would be a monstrous perversion of the legislative purpose to say that the officers of a naval force landed to assault an eneni3r,s land batteries, or to protect a town, or to guard a consulate, or to bring off wood or water or provisions are in return for extra and hazardous service to be cut down in their pay. The regulations of a Department can not make the law or change it, but the head of a Department, by general regulations, can interpret the law for the benefit of his subordinates and give to it practical application. Accordingly, the Navy Regulations provide for the benefit of naval paymasters:

“An officer temporarily absent from a ship in commission, to which he is attached, shall continue to receive sea pay.”

This states clearly a general principle. The difficulty in such cases probably will be to determine what is temporary absence and what is an assignment to shore duty.

In the present case the Secretary of the Navy has relieved the court from the duty of determining that question by the express terms of his order, which characterizes this officer’s added duty of inspecting steel tubes for boilers and his consequent absence from shipboard, as “ temporary,” and expressly refuses to relieve him from the duties and consequent responsibilities of his sea service. It is manifest that the chief engineer of a great ship of war like the Richmond has many duties and responsibilities besides appearing on the deck in uniform — such as making reports, ordering supplies, carrying on correspondence, preparing against accidents to his machinery, and supervising the work and discipline and accounts of his subordinates. The Richmond continued to lie at the League Island Naiy-Yard while the chief engineer went to Shelby, Ohio, to inspect boiler tubes; but he, and no other officer, continued to be her chief engineer as completety as if he walked her deck and slept in her cabin. His service in inspecting boiler tubes was, per se, shore duty; but his sendee on the Richmond at the same time was sea service, and the one was “temporary” and the other permanent.

In Symond's Case (21 C. Cls. R., 148) it was held that the Secretaiy of the Navy could not deprive an officer of his lawful pay by designating as shore duty that which was in fact sea service. Still less does it seem possible that a Secretaiy can attach an officer to a vessel at sea and compel him to discharge the duties of an important position, and burden him with its responsibilities, and then deprive him of his lawful pay by compelling him to perform additional duties on land. No person would s&y that this officer was not entitled to sea pay because he was doing work on land and that he was not entitled to shore-duty pay because he was attached to and doing duty upon a vessel at sea. Yet that would be the logical result of reasoning based upon a literal reading of the statute-

It is true that in this case the officer’s absence while inspecting boiler tubes can be accurately ascertained, and in that particular the case differs from those of McGowan (36 C. Cls. R., 63) and Taussig (ante, p. 104); but the court can not assume, in the face of the Secretary’s order, that the officer was doing nothing else and had nothing else to do.

It must be held that when the Secretary of the Navjr characterizes a special service which he requires a.naval officer to perform and the officer’s consequent absence as “temporary,” the officer is entitled to the benefit of the characterization; and that when an officer duly attached to a ship at sea and entitled to sea pay has additional shore duty placed upon him by an order of the Secretary of the Navy, which in express terms declares that the shore duty is “in. addition” to the officer’s duties on his ship, the officer is not thereby deprived of his sea pay. A different conclusion would not only work the injustice of lessening the pay by increasing the duties, but would hamper and embarrass the Secretary of the Navy in the administration of his office.

The judgment of the court is that the claimant recover $133.70.

Weight, J.,

dissenting:

I do not concur in the conclusion of the majority of the court, nor in the reasoning contained in the opinion. The language of section 1571, Revised Statutes, is plain and positive, that “No service shall be regarded as sea service except such as shall be performed at sea, under the orders of a Department, or in vessels employed by authority of law.” The services for which the claimant seeks a recovery in this case were not performed at sea, nor in any vessel, but were per formed at places far inland.

. It is immaterial that the order giving shore duty designated the same as temporary and in addition to sea duty, for such services were inconsistent; the one could not be performed while in discharge of the other. Besides, the officer assigning to shore duty was not empowered to supersede the authority of the statute, and if by his order he assumed to do so, his act was a nullity and without force or effect. If the reasoning of the opinion of the majority of the court can begiven effect to avoid the sanction of the statue in the present case, it is not an impossibility to evade its provisions in every case where it may be desirable to put an officer on shore duty with sea pay; and thus the will of Congress may be wholly frustrated, and the authority of its enactments frittered away.  