
    WARD P. WINCHELL v. THE UNITED STATES.
    [No. 16859.
    Decided December 19, 1892.]
    
      On the Proofs.
    
    One of "the cadet engineers erronously discharged by the Secretary of the Navy in 1884 is appointed by him “ a draftsman in the Hydrographic Office, at a salary of ‡1,400 per amymn.” In 1886 he, with others, is restored by order of the Secretary, the order directing that they “ be regarded as noiv on waiting orders, and as having been respectively on waiting orders since the date when they were notified that they were discharged from the service." The claimant seeks to recover the pay of both offices.
    I.A cadet engineer in the Navy is not entitled to the salary of a draftsman in the Hydrographic Office in addition to his own, though he hold both offices.
    II.The office of draftsman in the Hydrographic Office is incompatible with that of cadet engineer.
    III. The Secretary of the Navy may detail a cadet engineer for service in the Hydrographic Office, but the detail will not entitle the officer to additional pay.
    IV. Where two incompatible offices are held by the same person to which are attached different salaries he is entitled to the larger.
    
      The Reporters’ statement of the case:
    The following are the facts of the case, as .passed by the court:
    I. Claimant entered the Navy as a cadet engineer on the 1st day of October, 1878, and after completing his six years’ course as required by law, and receiving his certificate of graduation, he received the following order:
    “Navy Department,
    “Washington, 30th September, 1884.
    
    “ Sir : Having successfully completed your six years’ course at the United States Naval Academy, and having been given a certificate of graduation by the academic board, but not being required to fill any vacancy in the naval service happening during the year preceding your graduation, you are hereby honorably discharged from the 30th of September, 1884, with one year’s sea pay, as prescribed by law for cadet midshipmen, in accordance with the provisions of the act of Congress approved August 5,1882.
    “ Bespectfnlly,
    “ Vi. E. Chandler,
    “ Secretary of the Wavy.
    
    “Naval Cadet Ward P. Winchell, U. S. N.
    “ Washington, D. O.”
    II. Octqber 1,1884, claimant was appointed a draftsman in the Hydrographic Office, at a salary of $1,400 per annum by the following appointment:
    
      “ Navy Department,
    “ Washington, D. 0., October 1, 1884.
    
    “Sir: You are hereby appointed a draftsman in the Hydro-graphic Office at a salary of $1,400 per annum, and you will report to the Chief of the Bureau of Navigation for duty.
    “ Execute the inclosed oath of office and return it to the Department with your letter of acceptance.
    “Yery respectfully,
    “Wi. E. Chandler,
    
      il Secretary of the Wavy.
    
    “Mr. Ward P. Winchell,
    “ Washington, D. Of
    
    III. October 2, '1884, he was detached from the Hydro-graphic Office and ordered to duty on the U. S. S. Eanger as follows:
    “ Bureau oe Navigation, Navy Department,
    “ Washington, October 2, 1884.
    
    “Sir: You are hereby detached from the Hydrographic Office, and you will proceed to the Mare Island navy-yard and report to the commandant for duty on board the U. S. str. Eanger, by the 11th instant.
    “The navy paymaster at Washington will be instructed to furnish you transportation from here to San Francisco, and you will be allowed actual expenses of subsistence, of which you will keep a careful account and present the same to the Fourth Auditor for payment.
    “ Your pay will be at the rate of fourteen hundred dollars ($1,400) per annum from this day; and while serving on board the U. S. S. Eanger you will be allowed one ration.
    “Yery respectfully, ■
    “ J. E. Walker,
    “ Chief of Bureau.
    
    “Mr. Ward P. Winchell,
    “ Draftsman, Hydrographic Office.
    
    “Approved:
    “ Wm. E. Chandler,
    “ Secretary of the Wavy.
    
    IY. March 10, 1886, an order was issued by the Secretary of the Navy detaching him from the U. S. S. Eanger, but that order was on April 1, 1886, modified as follows:
    “ Navy Department, Washington, 1 April, 1886.
    
    “ Sir: The order of 10th March, 1886, placing you on waiting orders is so far modified that you will continue your present duties on board the U. S. steamer Banger, as requested in your letter of tlie 23d ultimo.
    “ Bespectfully,
    “ W. 0. Whitney,
    “ Secretary of the Wavy.
    
    “ Delivered Apr. 22,1886.
    “ C. E. Clark,
    “ Comdr. U. 8. W., Comclg. U. 8. 8. Ranger.
    
    “ Cadet Engineer Ward P. Winchell,
    “ U. 8. steamer Ranger, Sam, Diego, California.”
    Y. He was detached from the Banger by order of July 6,1886, delivered to him July 20,1886. He "served continuously on board said vessel under the order set forth in finding iv and under his appointment in the Hydrographic Office as set forth in finding in until so detached.
    YI. After the decision of the Supreme Court in the cases of Redgrave and Perkins (116 U. S., 175, 483), the Secretary on March 10,1886, issued the following General Order, a copy of which was sent to the claimant:
    “March 10,1886.
    “GeneralOrder, No. 344.]
    “The recent decisions of the Supreme Court of the United States on appeal, in the cases of the United States vs. Red-’ grave and the United States vs. Perkins, have affirmed the construction by the Court of Claims to the provisions of the act of August 5,1882, relating to the discharge of surplus graduates from the Naval Academy.
    “It further appears that of the cadet engineers hereinafter named, twenty-one, after a four years’ course, graduated at the Naval Academy in 1881, and six in like manner graduated in 1882, but that they were under an erroneous construction of the law, and in pursuance of General Order, No. 302, dated December 12,1882, designated as naval cadets, and as such were further examined at • the final graduating examinations in 1883 and 1884, and immediately thereafter were notified that under the provisions of the act of August 5, 1882, they were honorably discharged from the service with one year’s pay.
    “It further appears that, m some instances, the cadet engineers thus notified declined to accept such discharge or the pay attached thereto, while others accepted the pay either with or without protest. The Department is, however, advised pj the Attorney-General to the effect that the acceptance or nonacceptance of the discharge and pay thus tendered does not alter the legal status of any cadet engineer who, under the aforesaid erroneous construction of tbelaw, was designated and notified of Ms discharge as a surplus graduate.
    “Under the circumstances, and for the purpose of giving due effect to the decisions of the courts, it is ordered that the names of the following cadet engineers be, and the same are hereby, restored to the Navy Begister:
    “Ward P. Winchell and 26 others.
    “ The above-named cadet engineers will be regarded as now on waiting orders and as having been, respectively, on waiting orders since the date when they were notified that they were discharged from the service.”
    VII. After said General Order, No. 344, no order was' issued to the claimant as a cadet engineer assigmng him to duty on board the U. S. S. Banger or elsewhere, until the orders of March 10, April 1, and July 6, as above set forth, but he continued to do duty on the said' Banger as a draftsman in the Hydrographic Office under Ms appointment as a clerk in said office under his orders of October 2,1884.
    VIII. Claimant is now an assistant engineer under the provisions of the act of July 9, 1888, ch. 591 (25 Stat. L., 241), and takes rank as such from July 1, 1884.
    IX. He has been paid as follows :
    1. As a draftsman on board the U. S. S.. Banger from October 2,1884, to March 31,1886, inclusive, at $1,400 per year, amounting to $2,251.16.
    2. As a cadet engineer at sea from April 1,1886, to July 20, 1888, inclusive; on leave from July 21, 1888, to July 29,1888; on other duty from July 30, 1888, to August 9, 1888. The amount claimant received during that period as cadet engineer amounted to $2,595.65.
    If he is entitled to be paid as assistant engineer of more than five years’ service from July 1, 1884, to August 9, 1888, inclusive (after deducting only the sum received as cadet engineer during that period), the amount of $4,183.35 would be due him.
    If the amount paid him as draftsman is to be deducted, then there would be due him $1,932.19.
    
      Mr. John Paul Jones for the claimant.
    *Section 1765, Bevised Statutes, which is relied upon to defeat this claim, has often been construed by tMs court, by the Supreme Court, the Attorney-General, and the accounting officers of the Treasury.
    
      Tbe Attorney-General bas summarized these various decisions in bis opinion of June 11,1877 (15 Ops., 306), as follows:
    “The construction which has been given to these statutes (especially in the case of Converse v. The United States, 21 How., 463) is that the intent and effect of them is to forbid officers holding oue office to receive compensation for the discharge of duties belonging to another, or additionalpay, extra allowance, or compensation for such other services or duties where they hold the commission of but a single office, and, by virtue of that office, or in addition to the duties of that office, have assigned to them the duties of another office. According to that decision, however, if an officer holds two distinct commissions, and thus two distinct offices, he may receive the salary for each. The evil intended to be guarded against by these statutes was not so much plurality of offices as it was additional pay or compensation to an officer holding but one office performing additional duties, or the duties properly belonging to another.”
    The Supreme Court has reaffirmed the decision in the Converse {supra) case on several occasions, and the tendency has been* as it should be, to broaden the rule, and under all circumstances to permit an officer who happens to hold two compatible appointments, and performs the duties of both, to receive the legal salary of both. (United States v. Brindle, 110 U. S., 688, and United States v. Saunders, 120 id., 126.)
    This court elaborately considered the question in the case of Collins (15 C. Cls. R., 22) and reached the following conclusion (id., p. 40), “that a public officer who legitimately holds two offices may receive the salary of each.”
    It is needless to multiply authorities. The law is settled and no question could or would arise in this case but for the fact, which we admit, that claimant performed no active duties as an engineer officer in the Navy from September 30th, 1884, until he was finally detached from the Banger in July, 1886.
    In this case we insist, however, that this fact is of no consequence. In the case of a person holding two civil appointments a question might arise for the court to consider, if it appeared that the claimant had neglected, refused, or failed to perform the duties of either of the offices held by him. The distinction between an army or a navy officer and a person hqlding a civil office is broad and well defined. The former are appointed for life, and can only be removed from office by the most careful observance of methods of procedure prescribed by tbe law, whilst the latter, as a rule, have no fixed tenure of office ; the former (with reference to naval officers) have three rates of pay, viz: sea pay, shore pay, and leave or waiting-orders pay (R. S. sec. 1556) ; the latter have but one rate of pay whether they are working or on leave of absence. The law allows civil employés one month’s leave out of every twelve; any absence beyond this is without pay. The law makes no such allowance on behalf of naval officers. Their leave of absence is dependent entirely upon the will of the Secretary of the Navy, and may be granted as a reward for arduous services, or imposed as a punishment for breach of discipline. Instances are numerous "where officers have been kept for months and even for years from active duty, because of some ¡infringement of the regulations of the service. This is, in fact, a very common method of making- the officer feel the Secretary’s displeasure. Even under such circumstances the'law prescribes a compensation for this enforced inactivity, no matter of how long duration.
    ■ In other words, the law specifically recognizes that amaval officer may be in full active service and at the same time be performing no actual duties, other than being subjected to those general restrictions which are incident to all military service. For instance, an officer on leave or waiting orders (though the leave be for a time specified) can not leave the United States except by permission of the Secretary of the Navy; he is subject to court-martial for any infraction of the regulations as though he was on duty, and is, in fact, an officer of the Navy cum onere. He must be ever ready to obey the order of his chief, and on a day’s notice be prepared to start for the uttermost part of the globe, if his services be needed there.
    In their relations to the Government officers on leave or waiting- orders are not dissimilar to officers on the retired list. Both are subject to military rules and regulations; both subject to courts-martial, and both are theoretically and practically in the service. The one can, however, be ordered to duty at any moment, whilst the other can only be so ordered in time of war. The former is, therefore, in the performance of a much higher grade of military allegiance than the latter. The former helps to make up the present, active, available' military establishment, whilst the latter can become a part of it only in time of extreme necessity.
    
      It follows as a natural corrollary tliat, if the retired army or navy officer who is performing no military duty, and who can only be called upon to perform such duty in the most urgent contingency, can draw the pay of a civil office to which he has been appointed, an officer on leave or waiting orders can do the same thing.
    In his opinion of June 11,1877 (siepra), Attorney-General Devens says:
    
      “ * * * l deem it my duty, in answer to your inquiry, to say that a retired officer may draw his pay as such, and may also draw the salary of any civil office which he may hol'd under the Government, assuming always that the duties of the civil office are performed under and by virtue of a commission appointing him to that office, which beholds in addition to his rank as a retired officer.”
    The same question arose in the Collins case (15 C. Oís-. B., 22), and the above inter allia was quoted with approval by this court. That case was almost identical with the case at bar. Collins had been unjustly (but not illegally) dismissed from the Army.
    A special act was passed for his relief, which this court (as in this case) construed to have a retroactive effect as to p ay. It was expressly admitted that during the time Collins was out of the service.lie performed no military service. The defendants sought to offset against his claim under the special act, salary received for services rendered as a clerk in the office of the Paymaster-General, but it was held, upon the authority of six Attorneys-General; and of the Supreme Court in United States v. Converse (21 How., 463), that this could not be done.
    In the case at the bar the claimant was never out of the service, according to the decisions of the Supreme Court in the Redgrave, Perkins and Leopold cases, and according to the Navy Department, as appears from General Order 344 (finding Vil), which says:
    “ The above-named cadet engineers will be regarded as now on waiting orders and as having been, respectively, on waiting orders since the date they were notified that the were discharged from the service.”
    As before stated, section 1556,Bevised Statutes, recognizes three grades of pay for naval services, according as the services are more or less arduous. First, and- most meritorious; hence best paid, sea pay; second, shore duty pay for service at navy-yards, ordnance yards, Navy Department, etc.; and third and least arduous, “leave or waiting orders” pay.
    Were “leave or waiting orders” pay not the equivalent of service rendered or duty performed it would cease to be "pay," and would become a pension, a gratuity, or a bounty. It can in no sense be so considered, but must be accounted as a remuneration for which a valuable consideration has been given. The words of Attorney-General Devens, in the case above cited, therefore, must control this case.
    “ If he actually holds two commissions and does the duties of two distinct offices he may receive the salary which has been appropriated to each office.”
    Had this claimant accepted private employment after his alleged discharge (as many of his classmates did), not even the zealous accounting officers would have suggested that the amount of his salary should be set off against the judgment to which he is entitled. It so happened, how'ever, that from his peculiar training his services were valuable to the Government in another capacity — one entirely divorced from any duties required of him as a naval officer. So long as the Government erroneously and illegally refused to assign him to those duties which were incident to his proper position in the Navy, and refused to recognize him as a naval officer, and to pay him his legal salary, just so long his time was his own, and he was at liberty to dispose of it and of his services to the highest bidder. The Government evidently appreciated his worth or he would not have been so'speedily employed.
    In conclusion it should be borne in mind that this claimant was wholly without fault. That he was at all times ready and willing to obey any orders assigning him to duty, as is evidenced by the fact that shortly after General Order No. 344 went into effect he assumed the active duties of a cadet midshipman at the Navy Department, at a much smaller compensation than he was receiving as a draftsman in the Hydro-graphic Office.
    
      Mr. Felix Brmmigcm (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Bichakdson, Ch. J.,

delivered tbe opinion of the court:

The claimant was a cadet engineer in the Navy, and was one of those whom the Secretary of the Navy attempted to dis'charge under the act of August 5, 1882, eh. 391 (22 Stat. L., 285).

This court, in three cases, held that the Secretary misconstrued the act and that in law the engineers were not discharged by his order, but remained in service, notwithstanding’ the same. (Leopold’s Case, 18 C. Cls. R., 546; Redgrave’s Case, 20 C. Cls. R., 226, and Perkins' Case, 20 C. Cls. R., 438.) These decisions were affirmed in Redgrave and Perkins' cases (116 U. S., 475, 483).

Subsequently the Secretary of the Navy, acting upon an ■ opinion of the Attorney-General, issued an order March 10, 1886, restoring to the Navy Begister all the cadet engineers so ordered to be discharged, including the present claimant, and therein directed that they “be regarded as now on waiting orders, and as having been, respectively, on waiting orders since the date when they were notified that they were discharged from the service.”

From September 30,1884, to March 10,1886, the. claimant was performing no services as engineer.

October 1,1884, the Secretary' of the Navy appointed him “a draftsman in the Hydrographic Office, at a salary of $1,400 per annum.”

October 2,1884, he was detached from the Hydrographic Office and ordered to “ duty on board the U. S. steamer Banger by the 11th instant,” where he continued to serve as a draftsman until he was restored to duty as an engineer under the Secretary’s order of March 10, 1886.

• The only question of law arising upon the findings is, whether or not the claimant is entitled to the salary of a draftsman in addition to that of an engineer.

He claims both, on the authority of Collins' Case (15 C. Cls. R., 22), Saunders’ Case (120 U. S., 126), and several others. That would be correct if lie held two distinct compatible offices.

Th e latest exposition of the law on th e subj ect by the Supreme Court is found in the case of Badeau (130 U. S., 439). He (Badea u) was an officer of the Army on the retired list, and tbe only duty to wbicb' be could be assigned was at tbe Soldiers ’Home. From all other military duty be was by law exempt. (E. S., sec. 1259.) He bad never been assigned to duty at tbe Soldiers’ Home, so that be bad notbing to do as an Army officer. Having been appointed a consul-general and having served in that capacity be claimed tbe salaries of both offices.

Tbe Supreme Court, while adhering to its previous decisions that a person bolding two distinct compatible offices could have tbe salary of both, held further that tbe two offices held by Badeau were incompatible and that be was entitled only to tbe salary of one.

If tbe office of consul-general be incompatible with that of a retired officer in tbe Army who lias nothing to do, certainly those of an engineer in tbe Navy and a draftsman in tbe Hy-drographic Office are equally or more so.

We treat tbe claimant, in accordance with tbe decisions of tbe Supreme Court, as ’never out of tbe Navy after bis entry therein, and while serving as draftsman we regard him as an engineer on waiting orders, as be was ordered to be so regarded by tbe Secretary of tbe Navy. During that time be held two offices under the same Secretary whose orders be was bound to obey.

Tbe Hydrographic Office is attached to tbe Bureau of Navigation in tbe Navy Department (R. S., sec. 431). Its officers are subject to tbe orders of tbe Secretary of tbe Navy. If an engineer has peculiar qualifications for duty in tbe Hydro-graphic Office there is no reason why tbe Secretary may not detail him to that service, as be frequently details officers to duty at tbe Navy Department. It would be inconsistent for tbe Secretary to appoint an officer under him to another office in bis Department with a view of giving him two salaries, when’be could not perform tbe duties of both offices at tbe same time, and especially so when be could obtain tbe services of such officer by detail wherever most useful.

It is clear that an engineer in tbe Navy could not be performing his duties as such and at tbe same time perform tbe duties of draftsman in the Hydrographic Office. Tbe case differs from that of Collins (15 C. Cls. R., 22) in this, that while Collins was clerk in tbe War Department he was out of tbe army in fact and in law, having been honorably discharged under tbe provisions of an act of Congress, and be was not subject to tbe orders of tbe Secretary of War. It would bave been accurate if tbe opinion bad set out that view of tbe case.

• Adopting tbe just and proper rule of tbe accounting officers to pay one wbo bolds two offices tbe salary of that wbicb is larger, it follows that tbe claimant is entitled to recover tbe salary of engineer less tbe amount paid to bim as a clerk in tbe Hydrographic Office of tbe Navy Department, that is tbe sum of $1,932.19; for wbicb be will bave judgment in bis favor.  