
    FRANK S. HOTCHKIN v. THE UNITED STATES.
    [No. 15748.
    Decided December 17, 1888.]
    
      On the Proofs.
    
    On the finding of a Naval retiring board an officer is retired under the Revised Statutes (§ 1454) with one year’s pay. He is then on sea duty, but is paid “waiting-orderspay.”
    
    I. Where a Naval board finds an officer unfit for active service the legal effect of the finding is to put him “ on leave or waiting orders; ” and the one year’s pay to which he is entitled by the Revised Statutes (§ 1454) is “ leave” or “waiting-orders” pay.
    II. Such has been the construction given to the statute at the Treasury since its enactment, and it is a construction entitled to great consideration. States, issued an order wholly retiring claimant from the naval service from that date with one year’s pay.
    
    
      
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. The claimant on the 5th day of June, 1878, was appointed a lieutenant (junior grade) in the United States Navy, and continued to discharge the duties of that position until June 16, 1885, at which last date the Secretary of the Navy, under authority of section 1454 of the Revised Statutes of the United
    
      II. At the date of claimant’s retirement he was on “ sea duty,” and paid a salary at the rate of $2,000.
    III. Claimant has been paid but $1,400 as year’s extra pay.
    IV. While claimant has made application for payment of the $600, the amount which he claims is still due, being the difference between $1,400 “furlough or waiting-orders” pay and “sea-duty” pay, the accounting officers of the Treasury have declined to allow the same.
    V. The term “one year’s pay,” as used in section 1454, Revised Statutes, has always been construed by the accounting officers of the Treasury to entitle the officer to a year’s leave pay of the grade held at retirement.
    
      Mr. William ¡Small for the claimant:
    The decision of this case rests solely upon the proper interpretation and meaning of the word “ pay” in the statute.
    It will be seen, by reference to section 1453 of the Revised Statutes, that when an officer is retired on account of incapacity which is the result of an incident in the service, he is allowed “retired pay.” It seems evident from the language of these two sections that where Congress intended any other than the pay which the officer was receiving at the date of retirement qualifying words were used to give effect and certainty to that intention.
    We claim, therefore, that by “ pay ” as used in section 1454 is meant the pay to which the officer was entitled, which he was receiving at the date of the order retiring him, there being no qualifying adjective used, as is the case in section 1453 and in the preceding clause of section 1454, which provides for the other method of retiring such officer.
    The principle is well settled that the words of a statute, if dubious, ought to be taken most strongly against the lawmakers, and that where the words of a statute fixing the compensation of a public officer are obscure, and admit of two meanings, they should be construed in favor of the officer; but in this case the words are not dubious. Congress has provided for three contingencies in the matter of the retirement of naval officers through the action of the retiring board, and has also prescribed the pay to be allowed in each contingency, viz, “ retired pay.” “furlough pay,” and “pay,” the two first named, being for life, and the last named for one year.
    ■ This question was, in our opinion, conclusively settled by the Supreme Court of the United States in the case of The United, States v. North (112 U. S. R., 510-513).
    
      Mr. F. P. JDewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants :
    The allowance made by the accounting officers in this case is of the same character as made in like cases since the passage of act of 3d of August, 1861, which is re-enacted in section 1454. Whilst it is claimed in this case the law has obviously been correctly interpreted by the accounting officers, nevertheless the contemporaneous construction of those who are called upon to act under the law, and who were appointed to carry its provisions into effect, is entitled to great respect. The several cases upon this point are reviewed in Freirich v. The United States (21 O. Gis. R., 16).
    The uniform construction given to the law by the accounting officers for a period of twenty-seven years has, until the present time, never been questioned. United States v. North (112 U. S. R., 510), cited by claimant, is not a parallel case.
   Weldon, J.,

delivered the opinion of the court:

On the 5th of June, 1878, the claimant was appointed a lieutenant (junior grade) in the United States Navy; and continued to discharge the duties of that position until June 16,1885,, at which date the Secretary of the Navy, under the authority of section 1454 of the Revised Statutes, issued an order wholly' retiring claimant from the naval service from that date, with one year’s pay. At the time of retirement claimant was on sea duty, and paid at the rate of $2,000 per year.

He was paid $1,400 as the year’s extra pay under said order, but he has demanded from the accounting officers the sum of $2,000 as the pay to which, as he claimed, he was entitled.

The term “ one year’s pay,” as used in section 1454, has always been construed by the accounting officers of the Treasury to entitle the officer to a year’s leave pay of the grade held afe retirement.

It is insisted by tbe claimant that upon tbe above state of facts be is entitled to recover tbe sum of $600, or tbe difference between “leave pay” and tbe pay to which be would have been "entitled if be bad remained in tbe service for one year and continued to discharge the obligations of “sea duty.”

At tbe time be was retired f>y tbe action of tbe President, although nominally on sea duty, be was in fact incapacitated to perform tbe obligations of that duty, because, as found by tbe board, he was unfit for “active service,” and tbe legal effect of that finding was to put him “on leave or waiting orders.” He could not have remained in tbe active service, because tbe board found such a condition, in fact,as would have prevented him from performing tbe duty of tbe active service. If be had remained in tbe Navy what would have been bis relation to the service for the time subsequent to the finding of tbe board ? He was found at that date to be in a condition unfit for the active service, and in legal contemplation be would have assumed from that time such relations to tbe service as would be applicable to bis condition, which would have been “ either on leave or awaiting orders.” If be had remained in tbe service and performed sea duty he would have been entitled to the sum of $2,600; but it is shown that be was incapable to perform tbe obligations of such duty, and would of necessity, because of such inability, he reduced to tbe legal status of “ on leave or waiting orders,” in either of which relations be would have only been entitled to tbe sum of $1,400. To permit him to recover the sum of $2,000 would be to decide against tbe action of the board of examination, that a party was entitled to recover the compensation of a position tbe duties of which be could not have discharged and which be did not in fact or in law bold. (The claim of tbe petitioner was settled on the basis of construction given to tbe statute by the accounting officers of the Government, from the enactment of the law, and such constructions are entitled to great consideration when tbe statute is to be judicially interpreted. “ While such practice can not control tbe court in tbe construction of tbe statutes, it should always be carefully considered and in doubtful cases allowed to turn tbe scale.” (20 C. Cls. R., 18.)

Tbe same principle was decided by this court in Hahn’s Case (14 C. Cls. R., 305), affirmed by tbe Supreme Court (107 C. S. R., 402). Also in Alexander Case (12 Wall., 177, and 7 C. Cls. R.,205); Wright Case (15 C. Cls. R., 87); Brown Case (18 id., 537), affirmed by the Supreme Court (113 U. S. R., 568), and Harrison Base (20 C. Cls. R., 122.) The case of The United States v. North (112 U. S. R., 510), cited by counsel for claimant;, differs from the case at bar in the essential particular that the service in that case would have been of the same character if the tenure of service had not been terminated. The law under which the action was brought continued a condition of service beyond the time when the service in fact terminated. If section 1454 had extended, in effect, the relation which the claimant held when he was declared incapacitated, that might change his rights; but it is not necessary to discuss or determine that question, as it does not arise in this case.

It is the opinion of the court that the accounting officers construed the law correctly, and that the petition should be dismissed.  