
    ROBERT G. DENIG v. THE UNITED STATES.
    [No. 22629.
    Decided March 31, 1902.]
    
      On the Proofs.
    
    On the enactment of the navy personnel act, 1899, a chief engineer is transferred to the line and commissioned as lieutenant-commander, and as such is designated to serve as fleet engineer. The question involved in the case is whether the statute authorizing the appointment of fleet engineers was repealed by the navy personnel act.
    I.The Revised Statutes (§ 1393) authorize the President to designate “from among the chief engineers in the service and appoint to every ' fleet or squadron an engineer, who shall be denominated engineer of the fleet.’’ This is not repealed by the Navy personnel act, Sd March, 1899 ( 30 Stat. L., 1004). The office of “engineer of the fleet’’ continues, notwithstanding the provision in the later statute that “the officers constituting the Engineer Corps of the Navy are transferred to the line of the Navy and shall be commissioned accordingly.”
    
    II.The duties of chief engineer of the Navy continue under the act 1899, though the officers have become merged in the line and are designated by another name.
    III.The purpose of the act 1899 was to increase the efficiency of the personnel of the Navy and not to curtail the power of the President as it then existed.
    IY. The Act 7th June, 1900 (31 Stat. L., 697), which provides that the navy personnel act shall not operate so as to reduce the pay of officers, extends to pay which officers may subsequently become entitled to receive and to the pay of a fleet engineer as prescribed by Revised Statutes (§ 1556).
    
      The Reporters'’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant entered the Navy of the United States as cadet engineer October 1, 1871; he was appointed second assistant engineer January 23, 1871; he was appointed assistant engineer February 21, 1871; passed assistant engineer March 25, 1880; chief engineer January 26, 1895. On the 3d of March, 1899, ho was, by operation of law, transferred to the line of the Navy for the performance of such duty as at that time was performed by engineers of the Navy, and he has received a commission as lieutenant-commander bearing date March 3, 1899. Among the duties that were being performed by some of the engineers of the Navy at that time were those prescribed by statute and regulation for those engineers who had been designated and appointed to be engineer of the fleet.
    II. In obedience to the order of the Secretary of the Navy of April 10, 1899, claimant reported, April 15, 1899, to the commandant of the navy-yard at NewYoik for duty on board the U. S. S. Chicago. (A copir of this order is attached to the petition and marked “ Exhibit A.”) Rear-Admiral Howi-son, in command of the South Atlantic Station, on the 15th of April, 1899, designated claimant to be fleet engineer, which designation was approved by the Secretary of the Navy April 19, 1899. This designation, so approved, was never superseded or set aside otherwise than by the detachment of Rear-. Admiral Howison as commander in chief until April 15,1901; but on October 2, 1899, said Rear-Admiral Howison was detached from duty as commander in chief of said station, and on the 20th of November, 1899, Rear-Admiral Schley succeeded Rear-Admiral Howison in command of the South Atlantic Squadron, and designated claimant to be fleet engineer of the squadron. This designation by Rear-Admiral Schlejr was also approved by the Secretary of the Nav}^ November 27,1899. He continued to be engineer of the fleet and to perform the duties required of him from April 19, 1899, until April 15, 1901, when his appointment as fleet engineer and his service on the U. S. S. Chicago was terminated bj' order of the Secretary of the Navy. (A copy of this order dated March 8, 1901, is attached to the petition and marked “Exhibit B.”) October 2, 1899, Rear-Admiral Howison hauled down his flag, and between October 3 and November 2(5, 1899 (both days inclusive), the U. S. S. Chicago was separated from the squadron, and no duties as engineer of fleet were required of claimant.
    III. For portions of said period he has received pay at the rate of $1,400 per annum, to wit: April 19, 1899, to October 2, 1899, and from November 27, 1899, to October 31, 1900;-but for the period April 15. 1899, to April 19, 1899 (four daj^s), he received at the rate of $2,800 per annum, and from October 3, 1899, to November 26, 1899 (fifty-four days), he received at the rate of $3,500 per annum, and from November 1, 1900, to April 15, 1901 (five months and fifteen days), he received at the rate of §3,500 per annum.
    By reason of the checkages against him by the accounting’ officers there has been retained up to the date of this petition from his regular salary as lieutenant-commander of the Navy the sum of §1,385.
    IV. No action has been taken upon this claim by Congress. The action of the departments has been as follows: Assistant Comptroller Mitchell, June 7, 1899 (V. Comp. Dec-., 888), authorized Paymaster Ball to pay claimant fleet engineer’s pay by virtue of Secretary Long’s approval of April 19,1899, and it was bjr reason of such authorization that claimant received fleet engineer’s pajr as above stated. Subsequently, on the 18th of December, 1900, Assistant Comptroller Mitchell decided that as claimant was a lieutenant-commander from and after March 3, 1899, his appointment as fleet engineer was invalid; and on the 6th of August, 1901, the Comptroller of the Treasury informed the Secretary of the Navy that no part of claimant’s current pay should be paid to him until the alleged overpayments as engineer of the fleet should be made good.
    V. On March 3, 1899, there were 70 chief engineers on the active list of the Navy, 41 of whom were below the relative rank of commander.
    The claimant applied for examination for the duties of a line officer on September 2, 1899. In accordance with such request he was, on September 29, 1899, directed to be detached from duty on board the U. S. S. Chicago and to report to the commandant, Navy-Yard, Washington, for ordnance instruction preliminary to examination; but on October 2, 1899, he was granted permission to withdraw his application for examination for line duties, and the Department’s orders detaching him from the Chicago were canceled.
    ■ Of the chief engineers on the active list of the Navy on March 3, 1899, but one (Franklin J. Schell) has been assigned to the general duties of the line upon his own application.
    VI. The Navy regulations in force while claimant was fleet engineer were as follows:
    “ 367. (1) The officers designated by the Navy Department as engineer of the fleet, surgeon of the fleet, paymaster of the fleet, and marine offleer of the fleet shall constitute the fleet staff of a flag officer. The medical and pay officers shall, when practicable, be selected from those having- the rank of commander, the engineer from the grade of lieutenant-commander, and the marine officer from the grade of major.”
    “371. (1) The engineer of the fleet shall perform the duties of senior engineer of the ship to which he is attached.
    ‘ ‘ (2) He shall, in general, perform such duties as are assigned him by the flag officer.
    “(3) He shall examine and pass upon all requisitions of ships of the fleet for stores pertaining to the Bureau of Steam Engineering that require the approval of the flag officer.
    “ (4) He shall, under the flag officer, exercise a general supervision over all the senior engineer officers in the fleet in regard to the manner of caring for the engines, boilers, and other machinery in their charge and the general performance of their technical duties, visiting each ship from time to time for that purpose.
    ‘ ‘ (5) He shall, when directed, carefully examine all machinery connected with the motive power of any ship of the fleet and make himself thoroughly familiar with its construction, condition, requirements, care, and maintenance. He will also make himself familiar with the condition of all the dependencies of this machinery, the spare parts, tools, stores, and supplies on hand. He shall inform himself fully as to the manner in which the engineer officers of the ship perform their technical duties. He shall, if any repairs are necessary, carefully ascertain their nature and extent; he shall make a written report, in detail, of the result to the flag officer, and ho shall not fail to state therein if there is any evidence of neglect of duty on the part of the engineer officers of the ship.
    “ (6) It shall be his duty, whenever he deems it important, to make to the flag officer any suggestions or reports concerning supplies of coal or engine stores for the fleet, the efficiency, condition, and preservation of the motive machinery of ships, and its dependencies, and any measures that will tend to improve any of the material of the fleet that pertains to the Bureau of Steam Engineering, or promote economy in its administration. All such suggestions and reports shall be made in writing.
    “ (7) All official reports, communications, and returns, whatever their designation, he shall forward through the chief of staff and flag officer. At the end of every quarter he shall make to the flag officer a detailed report, in duplicate, of the condition of the motive machinery and its dependencies upon each ship of the fleet. One copy will be retained by the flag officer, and one forwarded to the Secretary of the Navy for the Bureau of Steam Engineering.”
    
      These regulations modified those promulgated in 1893 in changing the rank of the fleet engineer from that of ‘ ‘ relative rank of commander” to “grade of lieutenant-commander.” The regulations remained unchanged as to all the duties of the fleet engineer.
    
      Mr. John 8. Blair for the claimant:
    If the law had not been changed by the Navy personnel act (approved March 3, 1899, 30 Stat. L., 1004) no question would have arisen as to the greater portion of this claim. Section 1393 of the Revised Statutes provides:
    “The President may designate among the chief engineers in the service and appoint to every fleet or squadron an engineer who shall be denominated Engineer of the Fleet.”
    And section 1556, Revised Statutes, provides:
    “The commissioned officers and warrant officers on the-active list of the Navy of the United States shall be entitled to receive annual pay at the rates herein stated * * Fleet surgeons, fleet paymasters, and fleet engineers, four thousand four hundred dollars.”
    The action of the Secretary of the Navy in approving claimant’s appointment, being executive and not judicial, is a sufficient compliance with section 1393 vesting the designation and appointment of the fleet engineers in the President of the United States. See Wilcox v. Jackson, 13 Peters, 498; United, States v. Eliason, 16 Peters, 291; Confiscation Cases, 20 Wall., 92, 109; United, States v. Farden, 99 U. S., 10, 19; Wolsey v. Chapman, 101 U. S., 755; Rankle v. United States, 122 U. S., 543, 557; Jones v. The United States, 137 U. S., 202, 217.
    It is insisted by the claimant that these sections of the Revised Statutes are still in force. There has been no express repeal and the only repeal by implication insisted upon by the Comptroller arises from his contention that Denig’s appointment or designation was made “after the engineer corps had been abolished” by the act of March 3, 1899, and that — •
    “since the grade of chief engineer has ceased to exist, it is now impossible that an engineer of the fleet should be so designated and appointed.”
    
      In the case of Betsey v. Gallagher, 20 Wall., 670, it was held by the Supreme Court that although by statute the Territory of Montana had abolished the formal distinctions in the pleading's and modes of procedure the essential distinction between law and equity had not been changed and that the respective reliefs afforded by law and equity must be administered as theretofore with a jury at law, without a jury in equity. The Territorial statute required that issues of fact should be tried by a jury, but the Supreme Court held that this did not apply to a proceeding which was essentially one for equitable relief. This ruling has never been questioned and has been approved in Idaho and Oregon Land Go. v. Bradbury (132 U. S., 509, p. 516).
    So here, as to engineers and fleet engineers, the Navy personnel act was changing names and forms, and was not dealing with the essence, of things.
    There might be force in this contention of the Comptroller if the chief engineers had been thrown out of the service, if the duties theretofore performed by them had been discontinued by statute, if engines and machinery had been eliminated from our ships, and if such changes bad occurred in fleet formation and in squadron relations as rendered a fleet engineer unnecessary.
    The only effect of the act of March 3, 1899, upon sections 1393 and 1556 is to narrow the field of selection by excluding officers who perform engineer duty of and above the rank of commander from sea duty.
    And after this bodjr of oligibles has, by virtue of section 5 of the act, been excused from sea duty, all the graduates, the whole of the Navy not included in the provisions of section 4 of the act, will be available for fleet engineers because all the graduates below “the first engineer who entered the Naval Academy as cadet midshipman ” will have been educated by virtue of the act of August 5, 1882 (22 Stat., 284) in engineer duties as well as in the duties of the line. (See United States v. Redgrave, 116 U. S., 474, p. 481).
    The act of Congress to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps does not purport to deal exhaustively (as in Tracy v. Tuffly, p. 223, 134 U. S., 206) with the duties of the officers of the Navy, nor does it plainly appear that it was intended as a “substitute” for all the naval legislation that preceded it.
    Courts do not favor repeals by implication. Although subsequent laws cover some or even all the oases provided for by the prior statute, they may nevertheless' be merely affirmative, cumulative, or auxiliary. In order to sustain a repeal by implication there must be a positive repugnancy between the provisions of the new law and those of the old, which makes it absolutely impossible to reconcile the two. {Chicagoand Milwaukee JEting Co. v. United States, 127U. S., 406, affirming the Court of Claims, volume 23, p. 504. See, also, Wood v. United States, 16 Peters, pp. 342, 362, 363; the Cote Case, 3 C. C., 64, p. 69, affirmed in case of The United States v. Cillis, 95 U. S., 407. Winchester v. United States, 14 C. C., 13, p. 41.)
    No statute will be construed as repealing a prior one unless so clearly repugnant thereto as to admit of no other reasonable construction. {Cojjoy. Cojoe, 137 U. S., 682.)
    It would be a very strained construction of the Navy personnel act to hold because engineer officers became line officers with engineering duties, as those duties existed at the passage of the act, that there was no longer any engineer corps for the President to select from, and that therefore the acts of Congress I have enumerated were repealed.
    
      Mr. Assistant Attorney- General P-radt for the defendants:
    Section 1390, Revised Statutes, provides for the active list of the Engineer Corps of the Navy, thus constituting a division separate and distinct from the line officers of the Navy. Section 1393 of the same chapter empowers the President to appoint an engineer of this corps from among the chief engineers in the service to the office of engineer of the fleet. These provisions continued in force until the enactment of the act of March 3, 1899 (30 Stat. L., chap. 413, p. 1004), by which the officers constituting the Engineer Corps of the Navy were transferred to the line of the Navy. It is insisted that this enactment had the effect of abolishing the Engineer Corps of the Navy, so that thereafter -there were no officers in the Navy having the designation of engineers, and that by the same token the office of engineer of the fleet was done away with. Under this state of facts the claimant was nevertheless designated as fleet engineer on the 15th day of April, 1899, by Rear-Admiral Howison, in command of the South Atlantic Station, and this designation was approved by the Secretar}'' of the Navy on April 19, 1899. Conceding that such appointment was substantially the act of the President, the question is whether it was effective. How could it be effective if not only the appointee was not a chief engineer in the Navy, as required by section 1393, Revised Statutes, but there was no such office as that of engineer of the fleet in existence? And that there was no such office as engineer of the fleet seems to follow from the fact that there were no engineers of any kind at the time in the Navy. At the time of the appointment the claimant was a lieutenant-commander in the Navy and not an engineer, and was drawing pay as such and not as an engineer. The fact that he performed the duties that had previously been performed by fleet engineers does not constitute him an engineer. In order to hold an office under the United States Government a person must be appointed to that office, and in order to be appointed to that office the office must exist. In this case there was an attempt, to be sure, to appoint the claimant fleet engineer, but we insist that the appointment was wholly ineffectual because the office of fleet engineer was not then in existence. If this view of the facts is correct, there is no room left for the discussion of the question of implied repeal.
   Peelle, J.,

delivered the opinion of the court:

The claimant, a lieutenant-commander in the United States Navy, seeks to recover the pay of a fleet engineer, South Atlantic Station, from April 19, 1899, to April 15, 1901, at the rate of $4,400 per annum, loss the amount received by him from the United States during that period.

As the findings disclose, the claimant was, on April 15, 1899, designated as engineer of the fleet by Rear-Admiral Howison, commander in chief South Atlantic Station, whose flagship was the U. S. S. Chicago, which designation was approved by the Secretary of the Navy April 19, 1899.

Thereafter, October 2,1899, Rear-Admiral Howison hauled down his flag as commander in chief of said station, and on November 18 thereafter he was succeeded in command by Rear-Admiral Schley, who also designated the claimant as engineer of the fleet, which designation Avas approved by the Secretary of the Navy November 27, 1899.

From October 2,1899, when Rear-Admiral Howison hauled down his flag as commander in chief, until November 27, 1899, a period of fifty-four days, the flagship U. S. S. Chicago was separated from the squadron or fleet, and no duties as engineer of the fleet were required of the claimant during that period.

No order of any kind was issued detaching the claimant from duty as engineer of the fleet until April 15, 1901, when by order of the Secretary of the Navy the claimant was detached from duty as engineer of the fleet.

Revised Statutes, 1393, provides that “ the President may designate from among the chief engineers in the service and appoint to every fleet or squadron an engineer who shall be denominated engineer of the fleet.”

That provision of the statute is satisfied when the Secretary of the Navy, acting, as he does in such matters, for the President, approves the designation of officers selected by a commander in chief to act as his general staff.

Revised Statutes, section 1556, making provision for the annual pay of commissioned officers and warrant and petty officers and others in the Navy, among other things provides: “Fleet surgeon, fleet paymaster, and fleet engineer, four thousand four hundred dollars. ”

Thus the law stood prior to the act of March 3, 1899 (30 Stat. L., 1004), known as the Navy personnel act, and but for that act no question would be raised as to the claimant’s right to pay as fleet engineer, except for the interim when Rear-Admiral Howison hauled down his flag as commander in chief, and Rear-Admiral Schley, fiftj7-four days thereafter, succeeded him.

The assistant comptroller decided against the right of the claimant to pay as fleet engineer subsequent to March 3, 1899, on the ground, in effect, that under section 1393 fleet engineers could only be appointed from among the chief engineers, and that as the corps of engineers had, by the operation of the act of 1899, been abolished, the provision of section 1556-, in respect to the pay of $4,400 per annum for fleet engineers, had become inoperative. As to fleet paymaster and fleet surgeons, however, who are authorized to be designated and appointed under Revised Statutes, section 1382, the Comptroller holds that as they belong to grades still in existence the same rule does not apply; and that as to them, they are entitled to be paid $4,400 per annum, notwithstanding the provisions of the act of March 3, 1899.

The first question arising is, Was the Corps of Engineers abolished by the act of 1899 ?

Section 1 of that act provides “that the officers constituting the Engineer Corps of the Navy be, and are hereby, transferred to the lino of the Navy, and shall be commissioned accordingly.”

Subsequent sections provide the manner in which such officers shall take rank in the line of the Navy, the duties they shall perform; and section 7 provides what officers shall constitute “the active list of the line of the Navy.”

As the officers who constituted the Engineer Corps under Revised Statutes, section 1390, had been transferred to the line of the Navy, it follows that the corps, as thus constituted, was abolished. But it will be observed that while such officers are transferred to the line of the Navy, the duties of engineers are not abolished. There will continue to be engineers and chief engineers of the Navy, though under another name.

Those below the rank of commander, as stated in section 4, may still be required to perform the duties of engineer at sea or on shore. Such duties will be continued, as we construe the act, until, as provided in section 5, those officers “transferred to the line to perform engineer duty only, who rank as, or above, commander, or should subsequently attain such rank, shall perform shore duty only.”

At the time of the passage of the act of 1899 the claimant was a chief engineer in the Navy, having been appointed to that grade January 26, 1895, so that by the operation of the act of 1899 the claimant was transferred to the line of the Navy and commissioned as lieutenant-commander. And as a lieutenant-commander he was designated by different commanders in chief of the South Atlantic station, to serve as fleet engineer, both of which designations were approved bv the Secretary of the Navy.

The President, acting through the Secretary of the Navjq determined, by his approval of the designations so made of the claimant as fleet engineer, that such duties were neces-saiy to be performed for the preservation and efficiency of the machinery connected with the motive power of the several ships constituting the fleet, as well as for the safety and welfare of the officers and men on board.

There is no express language in the act of 1899 repealing-section 1393, authorizing the President to “designate from among the chief engineers, and appoint an engineer who shall be denominated as engineer of the fleet.”

Repeals by implication are not favored, ana if section 1393 can stand in harmony with the legislation on the subject it should bo given effect.

We fail to see anything in the act of 1899 expressive of the purpose of the Congress to do away with fleet engineers while retaining fleet surgeons and fleet paymasters. On the contrary, the purpose of the act was to reorganize and increase the efficiency of the personnel of the Navy, and not to limit the power of the President, as it then existed, to designate fleet officers.

Section 1393 is rather permissive of a power that existed in the President to designate fleet engineers, when in his judgment they become necessary, though said section carries with it the right to the additional compensation provided for by section 1556.

I>3T the action of the Secretary in approving the designation of claimant as fleet engineer he thereby in effect construed section 1393 as still in force, unaffected by the act of 1899; and we are not prepared to go behind his action or to hold that he was wrong. On the contrary, we think the question at most is one of doubt, and where doubt exists “the construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons. ” (Edwards v. Darby, 12 Wheat., 210; United States v. Moore, 95 U. S., 760, 763.)

Hence we reach the conclusion that while the Corps of Engineers is abolished and the officers constituting that corps are merged in the line of the Nav3r and commissioned accordingly, it is a change of name and not of duties; for, bjr the express language of section 4, the engineer officers transferred to the line are to perform such sea or shore dutjr “as is performed by engineers in the Navy,” thus recognizing the necessity for the continued duties of engineers, though under a different official title.

In other words, prior to the act of 1899 the President designated from among the' chief engineers an engineer to perform the duties of fleet engineer, while since that act he designates from among the lieutenant-commanders, as provided bj^ navy regulation 367, of 1900, an engineer to perform the same duties and, too, one who prior to the act of 1899 was a chief engineer.

The necessity for the appointment of a fleet engineer must be left to the discretion of the President, and when he acts the presumption is that he has performed his duty according to law.

The claimant having been designated, with the approval of the Secretary, as fleet engineer, and having performed the duites pertaining thereto, is entitled to the salary provided therefor in section 1556, unless taken away by the act of 1899.

Section 13 of that act fixes the salary of commissioned officers of the line of the Navy the same as provided by law “for the officers of corresponding rank in the Army,” and the last proviso but one to that section provides that “no provision of this act shall operate to reduce the present pay of commissioned officers now in the Navy, and in anjr case in which the pay of such an officer would otherwise bo reduced he shall continue to receive pay according to existing law.”

Whether the language of that proviso is broad enough to include the claimant as fleet engineer, for which he was designated and appointed after the passage of the act, is questionable, but the amendatory act of June 7, 1900 (31 Stat L., 697), provides that “section 13 of the act approved March 3, 1899, entitled ‘An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the U nited States,’ is hereby so amended as to provide that nothing therein contained shall operate to reduce the pay which, but for the passage of such act, would have been received by any commissioned officer at the time of its passage or thereafer.”

The first proviso quoted applies to the pay which was being received by commissioned officers in the Navy at the time the act was passed, and does not in terms apply to the pay thereafter, and for that reason is not perhaps broad enough to include the claimant’s pajr as fleet engineer, to which he was thereafter designated and appointed.

But as the amendatory act provides “that nothing therein contained (act 1899) shall operate to reduce the pay which, but for the passage of said act, would have been received by ” the claimant as fleet engineer, it follows that the language is broad enough not only to include the pay received by commissioned officers at the time of the passage of the act, but their pay thereafter; and the claimant is therefore entitled while thus serving as fleet engineer to the pay provided therefor b3r section 1556.

But though no order was issued detaching the claimant from duty as fleet engineer at the time Rear-Admiral Howison hauled down his flag as commander in chief, the flagship U. S. S. Chicago, upon which the claimant was serving, was, as set forth in finding n, separated from the rest of the fleet, and no duties were required of the claimant as fleet engineer thereafter until he was designated by Rear-Admiral Schley, with the approval of the Secretary, as set forth in that finding.

This,, we think, is sufficient to deprive the claimant of the pajr as fleet engineer during the period or interim of fifty-four days, even if the detachment of the commander in chief was not of itself a revocation of his appointment as fleet engineer.

This latter would seem to be the view taken by the Secretary, since he again approved the designation of the claimant as fleet engineer when Rear-Admiral Schley succeeded to the command.

For the reasons we have given, the claimant is entitled to recover the difference between Si,100 per annum as fleet engineer and the sum he has received from April 19, 1899, the date of his first designation and appointment by the President, through the Secretary, until April 15,1901, when he was detached from duty, excluding from the computation the period of fifty-four days between the date when Rear-Admiral Howison hauled down his flag and the President again, through the Secretary, approved the designation so made by P ar-Admiral Schley.

udgment herein is entered in the sum of $1,797.50.  