
    ELIJAH JOHN M. BUTTON v. THE UNITED STATES.
    [No. 12739.
    Decided June 1, 1885.]
    
      On the Proofs.
    
    The President, "by proclamation, allows $1.50 a month as additional pay to enlisted men in the Navy. The Secretary of the Navy notifies the Fourth Auditor that the allowance is in lieu of the abolished spirit ration, and extends only to men who otherwise would be entitled to a spirit ration. The apothecary of the Naval Academy claims that he is entitled to the increase of pay; also that he is attached to the “ ordinary of a navy-yard,” and entitled to a ration under Rev. Stat., § 1579.
    I. An official communication from the Secretary of the Navy to the Fourth Auditor in effect restricting the operation of a proclamation of the President increasing the pay of enlisted men in the Navy must be deemed the act of the President himself; and the proclamation and letter, being in pari materia, must be read together, and the latter be treated as a proviso to the former.
    II. The term “ordinary of a navy-yard,” as used in Rev. Stat., § 1579, refers to ships laid up in ordinary at a navy-yard. The meaning of the section is that petty officers, seamen, &c., though not upon a “ sea-going vessel,” may be allowed a ration if “ aetnally attached to and doing duty” on shipboard. But it does not extend to the apothecary of the Naval Academy.
    
      
      The Reporters’ statement of the case:
    The case involved two distinct causes of action:
    1. On the 20th July, 1870, the President, in virtue of the power vested in him by the Act 18th April, 1814 (3 Stat. L., p. 136 j Eev. Stat., § 1569), issued the following order:
    “An additional sum of one dollar and fifty cents is hereby allowed to the pay of enlisted men in the Navy of the United States.
    “ This order to take effect from the 1st instant.
    “U. S. Grant.
    “ Executive Mansion, July 20th, 1870.”
    On the 17th April, 1871, the Secretary of the Navy sent the following communication to the Fourth Auditor of the Treasury:
    “ Navy Department, Washington, April 17, 1871.
    “ Sie : In reply to the inquiry in your letter of the 13th inst. you are informed that the allowance of one dollar and a half per month is not to be extended to those who lose nothing by the abolition of the allowance of five cents per diem.
    “ I am, respectfully, your obed’fc servant,
    “Geo. M. Robeson,
    “ Secretary of the Wavy.
    
    “ Hon. S. J. W. Tabor,
    “ Fourth Auditor Treasury DepHP
    
    The claimant at the time of the Presidents order was a naval apothecary of the first class. He sought to recover the increase of compensation which it gave. The statute of limitations barred whatever additional compensation accrued anterior to the Secretary’s communication.
    2. The Revised Statutes (§ 1579) provide:
    “No person not actually attached to and doing duty on board a sea-going vessel, except the petty officers, seamen, and ordinary seamen attached to receiving ships or to the ordinary of a navy-yard, and midshipmen, shall be allowed a ration.”
    The claimant since 1866 was on duty as apothecary at the Naval Academy. He was for some months prior to March 31, 1880, allowed a ration, but the allowance was revoked, and the money paid to him in commutation thereof was subsequently deducted from his pay.
    
      Mr. George A. King for the claimant.
    
      
      Mr. JP. E. Hoioe (with, whom was the Assistant Attorney-General) for the defendants.
   Nott, J.,

delivered the opinion of the court:

As to the first cause of action, the court is of the opinion that the communication of the Secretary must be deemed the act of the President; that the order increasing the pay of the Navy and the communication restricting the operation thereof are in. pari materia, and that the latter operates as a proviso to the former, the reading of the two being, in effect, that an additional sum of $1.50 a month is allowed to the pay of enlisted men in the Navy; provided, nevertheless, that this increase shall not extend to those who lose nothing by the abolition of the allowance of five cents per diem.” The claimant having been on shore duty was not entitled to the spirit ration originally given to enlisted men at sea, nor to the five cents allowed in lieu thereof. Whether a man on shore duty who enlisted on the faith of the President’s order prior to its modification might recover, notwithstanding the subsequent modification, is a question upon which the court expresses no opinion.

As to the second cause of action, the court is of the opinion that the claimant cannot be considered as attached to the ordinary of a navy-yard.” By the term “ ordinary of a navy-yard ” the court understands the statute to refer to ships laid, up in ordinary at a navy-yard; and the meaning of the section to be that petty officers, seamen, and ordinary seamen, though not upon a “ sea-going vessel,” may nevertheless be allowed a ration if they are “ actually attached to and doing-duty” on shipboard. The claimant was not doing duty on shipboard, and does not come within the exception of the section.

The judgment of the court is that the petition be dismissed-  