
    GEORGE E. HENDEE v. THE UNITED STATES.
    [No. 15423.
    Decided March 14, 1887.]
    
      On the Proofs.
    
    The act March 3,1883, provides that “ all officers of the Navy shall he credited with, the actual time they may have served as officers or enlisted men in the regular or volunteer Army or Navy or doth.” The case raises the single question whether a pay master’s clerk is an officer in the Navy within the meaning of the act.
    I. The word “ officers ” is frequently used in a broader seuse than that indicated by the constitutional method of appointment.
    
      II.In the case of Germaine (99 IT. S. R., 508) the Supreme Court held that civil surgeons appointed by the Commissioner of Pensions are not officers within the meaning of the Act 1825 (4 Stat. L., 118). But the court took into consideration the nature of the employment and the circumstance that the statute was penal.
    III. There are persons who, from the tenure of their service and the nature of their employment, are known as and styled officers, though not technically so by constitutional appointment.
    IV. The Act 3d March, 1883 (22 Stat. L., p. 472), relating to the longevity pay of naval officers, is a remedial statute, and an officer is entitled to a liberal interpretation, giving to the language as broad a meaning as Congress may be presumed to have intended.
    V.The “petty officers ” of the Navy, appointed by or with the approval of the commander of the vessel on which they are employed, are entitled to the benefits of the act.
    VI.The Revised Statutes (§ 1410), which define who are petty officers, class clerks as officers of the Navy.
    VII.In the Navy Regulations, 1865, clerks were expressly enumerated under the title of “ line and staff officers" and in rank were classed with midshix>men. In Regulations, 1876, they have no classification, but in orders and official papers are referred to and treated as officers and are held subject to the Revised Statutes (§ 4808).
    
      The Reporters’ statement of the case:
    The following are tbe facts as found by the court:
    I. The claimant was, on the 3d of March, 1883, and still is, a paymaster in the Navy. Previously thereto he had served in the Navy as follows: Paymaster’s clerk from October 10,1861, to November 30, 1862, and from October 30,1803, to March 5, 1864, appointed as required by the regulation; acting assistant paymaster from April 26, 1864, to July 23,1866; passed assistant paymaster from July 23,1866, to February 27,1869; paymaster from February 27, 1869.
    II. Under the provisions of the Act.of March 3, 1883, chapter 97 (22 Stat. L., 472, 473), relating to the credit to officers for length of service, there is due and unpaid the claimant the sum of $8,178.01, if he be entitled to have credited to him under said act the time he served as paymaster’s clerk as aforesaid, and the sum of $6,313.77 if he be not entitled to be so credited.
    III. The practice of the Navy Department has not been uniform as to the classification of paymasters’ clerks and their designation as officers or otherwise, but in several regulations, orders, and official documents they have been designated as officers. The following are copies of official orders:
    “ [General Order 153.]
    “ Navv Department,
    
      “April 18,1870.
    “ Secretaries to commanders-in-chief, clerks to commanding officers, and clerks to paymasters are officers of the Navy, within the meaning of the law, and are therefore entitled, under orders from their appointing officers, to 10 cents per mile for travel performed within the U nited States. # * * Clerks in the Navy pay offices are civil employés, and not en-to mileage. * * * ”'
    Upon change of the law substituting actual expenses for mileage the following order was issued:
    “ [General Order 193.]
    “Navy Department,
    
      “April 5,1875.
    “General Orders No. 153, of April 18, 1870, is hereby annulled. When an officer of the Navy, who is entitled to a secretary or clerk, appoints him from civil life and desires him to report for duty at any given place, the Department, if it approves thereof, will issue the requisite order on receiving official notice of his appointment and request for such orders.
    “All officers, including secretaries and clerks, serving on board ships in commission, will receive orders which involve traveling expenses from their commanding officer, senior officers present, commander-in-chief, or from the Department, as the case may be.”
    Paymasters’ clerks are charged with the 20 cents per month hospital dues imposed by Revised Statutes, section 1808, and the following is a copy of an official letter on the subject on file in the office of the Fourth Auditor from the Secretary of the Navy:
    “Navy Department,
    
      “February 9, Í882.
    “ Sir: Your letter of the 21st ultimo, inclosing a communication from Passed Assistant Paymaster J. W. Jordan, U. S. Navy, in regard to pay clerks at navy-yards and naval stations, has been received.
    “In reply you are informed that pay clerks, appointed under authority of sections 1380, 1387, and 1388, Revised Statutes, and in the manner prescribed by the Navy regulations, are en-entitled to medical attendance, and in cases of necessity to hospital treatment. Twenty cents per month should be deducted from their pay, to be applied to the fund for Navy hospitals, as is required by section 4808, Revised Statutes.
    “The letter of Passed Assistant Paymaster Jordan, with a copy of U. S. Navy Regulation Circulars, Nos. 21 and 29, are inclosed.
    “Yery respectfully,
    “Yi. H. Hunt,
    “ Secretary of the Navy.
    
    “ Hon. Chas. Beardsley,
    “ Fourth Auditor.”
    
    
      Messrs. John Paul Jones and Robert B. Idnes for the claimant:
    The Act of 1835 (4 Stat. L., 755) provided that the pay of officers of the Navy shall be as follows: * * * clerks to commandants of navy-yards; commandants of squadrons; commanders of vessels. The act of 16th August, 1856, provided for the appointment of purser’s clerks, and says, “ such clerks shall have the privilege allowed to the clerk of the commanding officer.” The act of June 22,1860, section 3, changed the title of “pursers” to “ paymasters.” The act of July 15, 1870, provides “that from and after the 30th day of June, 1870, the annual pay of the officers of the Navy on the active list as follows: * * * clerks to paymasters (p. 332).
    Section 4 provides that the pay prescribed in the next preceding section “ shall be the full and entire compensation of the several officers therein named,” &c.
    Thus from their first appearance in the Navy paymaster’s clerks have been recognized as, and classed amongst, officers in the legislation of Congress. They have been so recognized and regarded by the Executive. On two separate occasions the Navy Department had, by Executive order, in the absence of special statutory authority, fixed the relative rank of certain officers. By the acts of August 5, 1854, and March 3,1859, these orders were ratified. Subsequently, by act of 14th July, 1862, Congress (§ 5) recognized and confirmed the orders, regulations, and instructions then in force as the regulations of the Navy Department, and authorized their alteration by the Secretary with the approval of the President. Under this authority the Secretary, on 13th March, 1863 (Regulations of 1865, p. 2), whilst claimant held the office, extended to paymasters’ clerks the regulations governing relative rank, classing them with midshipmen.
    General Order No. 75, of May 26,1866, the legality of which has just been affirmed by the Supreme Court in United States v. Philbrielc, appealed, from this court, was held by the Treasury to apply to them, and General Order No. 153, of April 18, 1870, specifically recognized their rights to mileage and traveling expenses as officers of the Navy.
    The question in this case does not stand alone upon the legislative and executive construction of the status of these officers. Fx parte Peed (10 Otto, 13).
    
      Mr. F. P. Pewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    In Fx parte Reed (100 U. S. It., 13) it is held that a paymaster’s clerk for reasons therein given is in the naval service within the meaning of article 14, section 1624 of the Revised Statutes. He is therefore subject to Navy regulations.
    But whilst.it is held by the court that for the purpose of maintaining discipline a paymaster’s clerk is in the naval service, it is not held directly or by implication in such case that he is in the naval service either as an officer or enlisted man within the meaning of the act of 1883.
    It cannot be claimed with any degree of force that a paymaster’s clerk is enlisted. He holds his position by appointment, which is in direct opposition to any accepted meaning of enlistment. To enlist is defined by Webster “ to engage in public service voluntarily by subscribing articles or enrolling one’s naiAe;” and by Worcester, “to enroll as for military service.”
    If, then, a clerk is not an enlisted man, in order to bring himself within the terms of said act of 1883 he must be an officer of the Navy. Such officers are either a commissioned, warrant, or petty officer.
    As a paymaster’s clerk holds his position by appointment, it cannot be contended that he is either a commissioned or warrant officer. He is expressly excluded by the provisions of section 1410, Revised Statutes, to any claim to the rank of petty officer.
    Said section 1410 is a re-enactment of the Aet of 11th July, 1862 (12 Stat. L., p. 610).
    
      By section 1190, Revised Statutes the position of clerk is recognized as an unofficial position in the Army.
    That in the Navy a citizen may he appointed paymaster’s clerk has never been questioned. As shown by regulation, (supra), if appointed from the Navy his position is not thereby affected. Upon pages 5, 6, 7, 8, and 9, in Naval Regulations of 1876, can be found a list of all grades recognized as officers in the Navy; secretaries and clerks are not included.
    An enlisted man or petty officer may by appointment be a paymaster’s clerk, but a paymaster’s clerk is not necessarily an enlisted man or petty officer. A paymaster’s clerk may be practically as ignorant of the parts of a ship and naval details as a law judge may be, yet if he would be a good pay clerk at a colliery, a manufactory, or ship-yard, he would possess the qualifications and knowledge to be a paymaster’s clerk in the Navy.
    He is not a commissioned or warrant officer, because he has neither commission nor warrant. He is not a petty officer, because from the nature of his duties he has no command.
    Statute or regulation might require his selection from officers or enlisted men, but neither statute nor regulation do so. When stationed aboard ship he must of necessity submit to the discipline of the ship, and to that extent belongs the naval service; but he has no more to do with sea service than a passenger, except that while as the paymaster’s clerk he casts up the' seaman’s accounts the passenger frequently casts up his own.
    A paymaster’s steward is rated as a petty officer (Rev. Stat., § 1410). The decision of the court in the Muse Case (19 C. Cls., R., 441) is therefore not in point in the present case, where, by the provisions of said section, they are expressly declared not to be petty officers.
    Whilst in Lieutenant Young’s Case (19 C. Cls. R., 145) it was held that the equivalent of longevity pay is experience, and in Captain Bennett’s Case (id., 379) the condition upon which it is granted is “service,” in the case at bar it can hardly be claimed that an experience which might have been as efficient if acquired a thousand miles from sea, or a service in which a knowledge of naval affairs would simply be an incident and not a necessity, should change the expressed intent of the statute, limiting its benefits to “ officers and enlisted men.”
   Richakdson, Oh. J.,

The Act of March 3, 1883, chapter 97 (22 Stat. L., 472, 473) provides that u all officers of the Navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer Army or Navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous, and in the regular Navy in the lowest grade having- graduated pay held by such officers since last entering the service.”

The claimant brings this action to recover the amount due him on account of the additional credit allowed by this provision. (Hawkins’ Case, 19 C. Cls. R., 611; Bradbury’s Case, 20 id., 187; Rockwell's Case, 21 id., 332.)

Two computations, set out in the findings, have been furnished by the Treasury Department, which the parties accept as correctly made upon the different constructions of the act as contended for on the one side and the other. The larger sum includes credit for the time while the claimant was a paymaster’s clerk, and is the amount demanded by him. The smaller sum omits that credit, and is the amount which the defendants contend is all that is due him.

The issue raises the single question of law, whether or not a paymaster’s clerk is an officer in the Navy within the meaning of said act.

Article 2, section 2, of the Constitution declares that the President “ shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein provided for, and which shall be established by law.”

There is no doubt but that all persons thus appointed are officers of the United States of the highest and most pronounced type, but other persons in the employment of the Government and notso appointed are, by statutes and departmental regulations, in some cases called and recognized as also officers. The. word is frequently used in a broader sense than the technical one fixed by the constitutional method of appointment, and thatuse of it is occasionally found in statutes, in opinions of the Supreme and other Courts, and in the regulations and orders of the Navy Department.

In the case of Germaine (99 U. S. R., 508), relied upon by the defendants, the Supreme Court held that civil surgeons appointed by the Commissioner of Pensions to make examination of pensioners when necessary, and to be paid by fees in each case of examination, were not officers of the United States within the meaning of section 12 of the Act of 1825 (4 Stat. L., 118), which provided that “ every officer of the United States who is guilty of extortion under color of his office shall be punished by a fine,” &c. The court took into consideration, however, in the opinion of Mr. Justice Miller, not only the fact that the surgeon was not appointed as provided by the Constitution, upon which the opinion mainly rests, but also the nature of his employment and the circumstance that the statute under which he was convicted was a penal one, which, of course, by the well-established rules of construction, required a strict interpretation. It is there said:

“ If we look to the nature of the defendant’s employment, we think it equally clear that he is not an officer. In that case [United States v. Hartwell, 6 Wall., 385] the court said the term embraces the idea of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occasional or temporary. In the case before us, the duties are not continuing and permanent, and they are occasional and intermittent. The surgeon is only to act when called upon by the Commissioner of Pensions in some special case, as when some pensioner or claimant of a pension presents himself for examination. He may make fifty examinations in a year, or none. He is required to keep no place of business for the public use. He gives no bond and takes no oath, unless by some order of the Commissioner of Pensions, of which we are not advised.”

In the case of Reed (100 U. S. R., 13), where a paymaster’s clerk was tried and convicted by a court-martial under one of the articles for the government of the Navy, it was necessary only to determine whether or not the defendant was “a person in the naval service, but Mr. Justice Swayne, in the opinion of the court, uses this significant language:

“The place of paymaster’s clerk is an important one in the machinery of the N avy. Their appointments must be approved by the commander of the ship. Their acceptance and agreement to submit to the laws and regulations for the government and discipline of the Navy must be in writing, and filed in the Department. They must take an oath and bind themselves to serve until discharged; they are required to wear the uniform of the service; they have a fixed rank and they may become entitled to a pension and to bounty land. If these officers are not in the naval service, it may well be asked who are.”

These opinions strongly imply that there may be persons in the employment of the Government who from the tenure of service, nature of employment, and duties, may be known and styled as officers for some purposes and in some connections, though not technically so by appointment under the provisions of the Constitution.

We are now dealing with a remedial statute and the claimant is entitled to a liberal interpretation, giving to the language as broad meaning as Congress may be presumed to have used it in connection with the subject-matter; and we may take into consideration other statutes on the same subject, as well as the practice of the Navy Department to which it relates, without being confined to that technical accuracy in the meaning of words which is required in penal statutes. (Farden’s Case, 13 C. Cls. R., 352, affirmed on appeal.)

We find in the Navy a class of officers called “ petty officers,” recognized as such by the statutes (Rev. Stat., § 1410), but without any statute provision as to how they shall be appointed. By the regulations they are appointed by or with the approval of the commander of the vessel on which they are employed. We hardly think any one would doubt that such officers are entitled to the benefits of the act we are now considering.

The same section of the Revised Statutes (§ 1410) which defines who are petty officers also most clearly classes clerks as officers not holding commissions or warrants, and, not entitled to them, but still officers of the Navy. It provides that “ all officers not holding commissions or warrants, or who are not entitled to them, except * * * secretaries and clerks, shall be deemed petty officers.” * * *

-u An exception must be part of the thing previously described and not of some other thing. (Bouvier’s Law Dictionary.)” Excepting clerks, therefore, from those officers who would otherwise be petty officers, leaves them classed among the officers previously described.

If we consider the appointment, nature of service, and duties, we find that paymasters’ clerks are regularly appointed by and with the approval of superior officers (Navy Regulations of 1876, § 3, par. 9, p. 95), that they receive annual salaries fixed by statute (Rev. Stat., § 1056), take au oath, have continuing and permanent duties until discharged by the same power that appoints them, and otherwise come within the idea implied by the term officers as described by Mr. Justice Miller, in the Germaine Case.

In the Navy Regulations, of which we take judicial notice, those of 1865, clerks were expressly enumerated under the title of 11 Line and staff officers with their relative rank,” and in rank were classed with midshipmen. (Art. 2, pars. 5, 22.)

In the more recent regulations of, 1876 they seem to have no classification. But in several orders and official papers of the Secretary of the Navy they are referred to and treated as officers. In two orders set out in the findings they are expressly so designated, and by letter from the Secretary to the Fourth Auditor, under date of February 9,1882 (Finding III), they are held subject to the provisions of Revised Statutes (§ 4808), which are as follows:

u Sec. 4808. The Secretary of the Navy shall deduct from the pay due each officer, seaman, and marine in the Navy, at the rate of twenty cents per month for each person, to be applied to the fund for Navy hospitals.”

They are subject to this tax because they are held to be officers of the Navy, and if they are so held for the purpose of taxation for the support of Navy hospitals, they ought to be so held for the purpose of receiving benefits under the longevity statute which confers such benefits upon “ all officers of the Navy.”

In the case of In re Bogart, tried in the Circuit Court, district of California, Judge Sawyer considered the position in the Navy of a paymaster’s clerk, and in his opinion thus refers to it:

“ Was the petitioner, while a clerk of a paymaster in the Navy, on duty in the manner before stated, a person in the naval forces of the United States within the meaning of this act ? It is contended on his behalf that he is not. But upon this point we entertain no doubt. He was not merely an em-ployé or servant of the paymaster, but, on the contrary, as we have seen from the regulations of the Navy, set out in the statement of facts,.he toas an officer in the Navy. He received his position by appointment, which appointment was required to be approved by the commander of the ship. He was required to give a written acceptance, in which he bound himself to be subject to the laws, regulations, and discipline of the Navy, which acceptance is required to be filed in the Department. He was required to qualify by taking an oath, and to expressly engage to serve till regularly discharged; and this could only be done by the appointing power, approved in the same manner as his appointment had been approved.
He was an officer of the same class as the paymaster himself, the surgeon, engineer, &c., viz, a staff officer; and he ranked with midshipmen, who are line officers.” (3 Sawyer C. C. R., 407.)

In our opinion the benefits allowed by the act of 1883 to officers of the Navy apply qot only to those who are strictly and technically such by appointment as provided by the Constitution, but to all who are.called, recognized, or treated as such by the statutes, the regulations, or the practice of the Navy Department, and that paymasters’ clerks are among the latter class.

The claimant is entitled to credit for the time he was paymaster’s clerk, and will have judgment for the sum computed upon that interpretation $8,178.01.

Nott, J.:

I am of the opinion that the claimant should recover for the reasons set forth in his counsel’s brief.  