
    WILLIAM M. IRWIN v. THE UNITED STATES.
    [No. 22580.
    Decided January 5, 1903.]
    
      On the Proofs.
    
    A naval officer of more than twenty years’ service is assigned to shore duty at the Cavite Naval Station in March, 1900. His 10 per cent increase of pay is computed upon the pay of an officer in his first five years of service, and 15 per cent is deducted from his pay on the ground that the Philippine Islands are not “beyond seas” within the intent of the statute. According to his rant, he is entitled to four rooms while on shore duty, hut only one is assigned to him.
    I.Under the Navy personnel act (30 Stat. L., p. 1007, § 13) and the Act 36th May, 1900 (31 Stat-. L., 211) and the Act 3d March, 1901 (ibid., 1108), an officer on shore duty in the Philippine Islands is “beyond seas” within the intent of these statutes.
    II. The term “beyond seas” generally means out of the Kingdom of England; out of the United States; out of a State. The decisions relating to the term reviewed.
    III. When a statute uses a technical term'which is known and its lirean-ing clearly ascertained by the common or civil law — from whichever it is taken — it is proper to refer to that law for its meaning. The term “beyond seas” in a statute must receive the legal interpretation usually given to it in this country and in England unless there be an indication to the contrary.
    IV. A statute should be interpreted as of the time it was enacted. When the act 26th May, 1900, was passed none of the territory included in the treaty subsequently ratified by Spain belonged to the United States; and it was an open question whether, upon the exchange of ratifications, the new territory would become an integral part of the United States or continue to be foreign and external. It was then unequivocally “beyond seas.”
    
    V.The purpose of the statute granting 10 per cent increase of pay to officers and enlisted men serving beyond seas was to recompense them for arduous service abroad and increased expenses of living.
    VI.The act 3d March, 1901, provides that officers “who have been detailed, or may hereafter be detailed, for shore duty” “beyond the continental limits of the United States shall be considered as having been 
      
      detailed for shore duty beyond seas.” The act relates back to the original statute giving an increase of pay to officers and men serving beyond seas. The word “considered” refers, not to payment, but to any or a final adjustment of an officer’s account.
    VII. The act 26th May, 1900, increases the pay of officers 10 per cent and of enlisted men 20 per cent “above the rates of pay proper as.fixed by law in times of peace.” “Pay proper” means the fixed amount given by law to officers as distinguished from pay and emoluments or pay and allowances. The increase of an officer’s pay is to be computed'on his longevity pay, if anjo
    VIII. Where quarters are assigned to an officer, though less than the number of rooms to which he is entitled by regulations, commutation for quarters can not be allowed.
    
      The Beporterfi statement of the ease:
    The following are the facts of the - case as found b}r the court:
    I. The claimant was on the 12th day of March, 1900, and during the time thereafter covered by this claim, a lieutenant-commander of more than twenty years’ service in the Navy.
    II. On the 12th da}1- of March, 1900, the claimant, in accord-anee with an order from the commander in chief of the Asiatic Station, entered upon duty at the naval station at Cavite, Philippine Islands, and remained on dutjr at that station until the 31st day of August, 1900.
    III. The claimant was paid from March 12 to May 25, 1900, at the rate of $3,500 a year, as the sea pay of a lieutenant-commander of more than twent}1- years’ service.
    Fi-om May 26 to August 31, 1900, he was paid at the rate of $3,750 a year as such sea pay, plus an increase of 10 per cent, or $250 a year, on the pay of a lieutenant-commander in the first five years of service.
    On January 20, 1901, a checkage and deduction was made against his current pay, amounting to $256.35, on the ground that he was entitled to be paid from March 12 to May 25,1900, only at the rate of $2,975 a year, as the shore pay of a lieutenant-commander of more than twenty years’ service, and from May 26 to August 31, 1900, at the rate of $3,187.57,' shore pay of such a lieutenant-commander, plus an increase of 10 per cent.
    IV. On March 12, 1901, the claimant applied to the Auditor for the Navy Department for pajuuent of said $256.35 checked against him, which claim was allowed, settled, and paid, as follows:
    Difference between the sea pay (§3,500) and the shore pay (§2,975) of a lieutenant-commander after twenty years’ service, from March 12 to May 25, 1900, inclusive, two months fourteen days, at §525 per annum, suspended on the rolls of the Cavite Naval Station, now allowed. §107.90
    Difference between the sea pay plus 10 per cent increase (§3,750) and the-shore pay plus 10 per cent increase (§3,187.50j, from May 26 to June 30, 1900, inclusive, one month five days, at §562.50, suspended on the rolls of the Cavite Naval Station, now allowed. 54. 70
    Same difference as above, from July 1 to August 31, 1900, inclusive, two months, at §562.50 per annum, suspended on the rolls of the Cavite Naval Station, now allowed. 93. 75
    256. 35
    V. On May 31, 1901, the Comptroller of the Treasury, on his own motion, reviewed the settlement made by the Auditor, and decided that said $256.35 had been improperly allowed by the Auditor, on the ground “that officers on shore duty in the Philippine Islands were not on duty ‘ bo-yond seas’ within the meaning of the act of March 3, 1899, and therefore were only entitled to the shore pay of their respective grades.”
    In compliance with this decision of the Comptroller that sum was again checked against his pay and deducted therefrom.
    VI. In calculating the 10 per cent increase from Majr 26 to August 31, 1900, the Auditor onty computed the same upon the $2,500 a year constituting the lowest pa\r of a major in the Army (Rev. Stat., sec. 1261), or lieutenant-commander in the Navy (Rev. Stat., sec. 1466), instead of calculating the same upon the pay of a lieutenant-commander in the Navjr or major in the Army after twenty years’ service, which would amount (Rev. Stat., secs. 1262, 1263) to $3,500 a year. The difference would be 10 per cent on $1,000 a year, which equals $100 a year, or, for the period in question, $26.39.
    VII. While on duty at. Cavite Naval Station as aforesaid from March 12 to August 31,1900, the claimant occupied one room only from the public quarters at that station. No more rooms were available there. The allowance, by regulations of the Army, of quarters for a major, corresponding in rank to a lieutenant-commander of the Navy, is four rooms.
    
      If entitled to commutation of quarters for the rooms which ho failed to obtain, at the rate of $12 per month, under the acts of 1878, June 18, chapter 263, section 9, and 1879, June 23, chapter 35, paragraph 2 (1 Supp. R. S., 190-267), he would be entitled to $36 per month from March 12 to August 31,1900, amounting for five months and twenty days to $204.
    
      Messrs. George A. and William B. King for the claimant.
    
      Mr. John Q. Thompson (with .whom was Mr. Assistant Attorney- General Pradt) for the defendants.
    The term “beyond seas” is well known in legal jurisprudence, and has often received interpretation by courts both in this country and in England. It is found in manj1- statutes of limitation in the different States of the Union, and was apparently taken from the English statute of 21 James I, chapter 16, which barred certain rights of entry unless exercised within the period of twenty years after they had accrued, but made exception in favor of certain persons, among them being those who at the time the right accrued were “ beyond seas.” The ancient common-law expression corresponding to the term “beyond seas” adopted into the statute of 21 James I was “beyond the four seas,” refeiring to the bodies of water which encompassed the original realm of England. The early construction placed upon these words is found in the opinion in the case of Lane v. Bennett (1 M. & W., 70). See also King v. Walker (1 Bl. R., 286).
    The statute of James I, as adopted into many of the statutes of limitation of the different States of the Union, has received substantially the same construction here as in England. In Angelí on Limitations it is said (p. 200):
    “It may now be considered as an established general rule that in this country ‘ beyond seas ’ and ‘ out of the State ’ are analogous expressions and must have the same meaning. ”
    The only difference in the decisions of the State courts is that while in a majority of the States the expression has been held to mean simply out of the State or out of the jurisdiction of the State, on the other hand,, in some States it has been construed to mean without the limits of the United States. In none of the States has the expression been literally construed, but, on the contrary, it has been the general rule to regard a person as “beyond the seas” when only out of the State or out of the United States, although he might be at a place reached b3r land travel alone. {Mxirray v. Balter, 3 Wheat., 541; Shelby r. Guy, 11 Wheat., 366; Davie v. Briggs, 97 U. S., 628; Pancoast v. Addison, 1 Iiarr. & J., 350: Forbes v. Foote, 2 McCord, 331; Ward v. JIallam, 2 Dali., 217; Ifarvin v. Bates, 13 Mo., 217.)
    The question then arises whether Congress, in using the term “beyond seas” in section 13 of the navy personnel act, meant to adopt the meaning given to this expression by the courts or intended to give it a more literal interpretation. Was it the purpose to provide one rule of compensation for officers serving in places within the jurisdiction of the United States and another to those serving without or beyond its jurisdiction, or was it the purpose to give one rate of pay to officers serving within the geographical limits of the United States and another rate of pay to those serving beyond or across the seas from such limits ?
    Words in a statute are generally to be taken in their ordinary and popular meaning, unless they are technical words or words of art, or words having a definite legal significance, in which case thej^ are to be taken in their technical sense or in the meaning they have acquired by legal interpretation.
    Congress must therefore be presumed to have used this language in view of its well-established legal interpretation in this country and in England, unless it appears from the act that it intended to use it in its literal sense. This does not seem to be the case, since it might well be deemed advisable to put army and navy officers of the same corresponding rank upon the same footing as to pay and allowances when serving in foreign countries and upon a different footing when serving within the jurisdiction of the United States. I am therefore led to hold that “beyond seas” is used in this statute in its legal significance, and means the same as out of the United States or out of the jurisdiction of the United States. (7 Comp. Dec., 113-116.)
    ' Bouvier’s Law Dictionary thus defines the term “beyond sea-:”
    “ Beyond sea: Out of the Kingdom of England; out of the State; out of the United States.
    
      “‘Beyond seas’ means, generally, without the justificaron of the state or government in which the question arises. (1 Show, 91; 32 E. L. & Eq., 84; 3 Cra., 174; 3 Wheat., 341; 1 H. & Mcli., 350; 14 Pet., 141; 2 McCord, 331; 13 N H., 79; 24 Conn., 432; 52 N. JEL, 41; 6 Allen, 423.)
    ■ “The courts of Pennsylvania have decided that the phrase means ‘out of the United States.’ (9 S. & B.., 288.) The same construction has been given to it in Missouri, Illinois, Michigan, Iowa, and North Carolina. (1 Dev., 16; 97 U. S., 638; 20 Mo., 530; 2 Greene, la., 602; 24 Ill., 169.) In Massachusetts, Maryland, Georgia, New Hampshire, Indiana, Ohio, Alabama, Arkansas, and South Carolina it has boon decided to mean out of the State. (1 Pick., 263; 1 Harr. & J., 350; 2 McCord, 331; 3 Bibb, 510; 3 Wheat., 541; 14 Pet, 141; 3 Cra., 173; 13 N. H., 86; 8 Blackf., 515; 6 Ohio, 126; 23 Ala., 486; 8 Ark., 489.)” (Murray v. Balter, 3 Wheat., 366; Banlt of Alexandria, v. Dyer, 14 Pet-., 141; Davie v. Briggs, 97 Ü. S., 628; Forbes v. Foot. 2 McCord, S. C., 331; 13 Am. Dec., 732.)
    “‘Beyond seas,’ meaning of: ‘It may now be considered as an established general rule that in this country “beyond seas” and “out of the State” are analagous expressions, must have the same meaning.’ (Angelí on Limitations, sec. 200; cases in different States cited.)
    “On the other hand, in Pennsylvania this expression is construed to mean ‘without the limits of the United States.’ (Ward v. llallam., 2 Dali., 217.) ”
    The question of whether our islands possessions are “beyond seas” within the meaning of the proviso was thoroughly considered and determined in the negative by two decisions dated respectively August 20, 1900, and September 19, 1900 (7 Comp. Dec., Ill and 142). Those decisions proceeded upon the theory that the term “be3rond seas” had acquired a definite legal or technical meaning through a long course of judicial decisions, and that it must have been so understood by Congress and so used in the Navy personnel act. It was concluded that this legal or technical meaning precluded the use of the term in a literal sense as applying to places lying- beyond the limits of the two oceans on either side of the geographical division known as the United States, and the words were held to mean places beyond the domain or jurisdictional limits of the United States, thus excluding the Philippine Islands. If the plaintiff w'hile serving in the Philippine Islands as alleged was detailed for shore duty “beyond seas,” he is entitled to recover the difference between the pay received and the full pay of an Army officer of corresponding-rank detailed for duty at the same place.
    “I take it, therefore, that the great weight of American authority gives to this term its jurisdictional and judicial meaning rather than a literal meaning, and according to such meaning it embraces only such places as are beyond the jurisdictional limits of the United States considered as a State or political community.
    “The circumstances surrounding the passage of the law do not support the literal interpretation. These islands did not become the property of the United States until April 11,1899, when the ratifications of the treaty of peace were exchanged, and Congress could not well be said to have had in mind the increased cost of living in islands not acquired when this provision was enacted. On the other hand, it is proper that an officer of the Navy serving in a foreign country should be placed upon an equal footing with an army officer of similar rank in the same situation; and no reason exists why there shoidd be a greater proportionate difference between sea and shore pay in the islands than in the United States proper.” (L. P. Mitchell, Assistant Comptroller.)
    The remainder of the Assistant Comptroller’s letter is found in the argument on the second and third questions presented in this brief.
    Claimant’s attorne3rs seek to interpret the term “ beyond seas’’ in the light of the act of March 3, 1901, which act provides that officers who have been detailed, or who may hereafter be detailed, for shore duty in Alaska, the Philippine Islands, Guam, or elsewhere beyond the continental limits of the United States, shall be considered as having been detailed for shore duty beyond seas 'and shall receive pay accordingly, and claimant says that this act clearly relates back to the proviso in section 13 of the act of March 3,1899, and was intended to clear away any doubt in regard to the title to sea pay of officers serving since March 3, 1899, in the Philippines and other like places. Claimant further contends that it is a legislative correction of the erroneous decision of the Comptroller. Claimant does not seriously contend that this act is retroactive. In order to have a retroactive effect there must be a clear, unmistakable, and positive statement to the effect that the act is intended, to be retroactive in its operations. No such language is used in the act of March 3,1901. As a matter of fact, the act of March 3,1901, has no bearing whatever in this case. It is clear that Congress passed that legislation intending to provide for increased pay for officers serving on shore duty in the Philippine Islands after March 3, 1901, and thereby give them an increased pay which the act of March 3, 1899, did not do. Subsequent history and experience, information concerning the conditions of the country, the requirements of official duties and of naval officers on shore duties in the Philippine Islands coming to the knowledge of our legislators subsequent to the passage of the act of March 3, 1899, undoubtedly led Congress to believe that it would be but just to grant additional pay to naval officers serving on shore duty in the Philippine Islands, and therefore made provision for such future service in the act of March 3, 1901, which Congress recognized it did not do in the act of March 3, 1899.
   Howry, J.,

delivered the opinion of the court:

Plaintiff was a lieutenant-commander in the Navy March 3, 1899. He was on shore duty at a naval station in the Philippine Islands in 1900, and for his service he was paid shore-duty pay of an officer of his grade, computed according to anny rates, including 10 per cent increase for service in the islands, as provided bjr the army appropriation act of May 26, 1900. (31 Stat. L., 205.) The increase was computed upon the minimum pay of his grade. He was furnished during the period of his service on shore with one room as quarters, but if he had been assigned the same quarters as an army officer of his corresponding rank he would have been provided with four rooms.

The claim is for the full pay of an army officer of his corresponding rank as for service beyond seas, without deduction for service on shore, with the 10 per cent increase for service in the islands computed upon his full pajr instead of upon his minimum pay, adding the commutation price of three additional rooms for quarters during the time he was furnished with but one room.

Thus, three questions are presented. They all depend for their determination upon the proper construction of the act of March 3, 1899, commonly known as the navy personnel act (31 Stat. L., 1007), and two subsequent acts, approved respectively May 26, 1900 (31 Stat. L., 211), and March 3, 1901 (31 Stat. L., 1108). The questions are important beyond the amount directed to be paid or withheld in this case as being of a class affecting the pay of naval officers serving in the Philippines.

After providing that the commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided for officers of corresponding rank in the Arnry, limited by 15 per cent less pay for shore duty, it is by section

13 off the act of 1899 (supra)—

ii Provided further, That when naval officers are detailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places. ”

If the question of pay could be determined by the authorities which give a literal meaning to the words “ beyond seas,” plaintiff’s contention upon the first question would seem correct.

In Lane v. Bennett (1 Meeson & Welsby) it was held that Ireland was a place beyond seas within the meaning of the words as used in the statute of limitations. This was the early rule. (1 Shower, 91.) In Battersby v. Kirk (2 Bingham, New Cases, 584) the subject was reviewed, and it was held that Ireland was beyond seas with reference to England since its union with Great Britain as well as before.

In King v. Walker (1 William Blackstone, 286) it was held that a person in Scotland was not out of the realm after the union with England, because there was no such kingdom as England after that union. According to the opinion England was an island by itself before the union, and Scotland becoming a part of it afterwards, one of the judges stated that the “legislature by altering the phrase to beyond the seas at a critical juncture seemed to have pointed at this very case, of dwelling in Scotland.”

In Nightingale v. Adams (1 Shower, 91) India was said to be bt^ond seas.

In Williams v. Jones (13 East, 439) it was shown that the defendant resided in India and the case was adjudged to be within one of the exceptions of the statute of limitations as to parties beyond seas.

Again, if the question of shore pay or sea pay could be determined by the authorities Avhich have given a construction to the Avords when used in statutes of limitations in the American States we should find according to some of them that the words ‘‘ beyond seas ” mean “ out of the State. ” But again, if the issue could be settled by a less-restricted meaning Ave should find that precedents are not wanting which hold that the same words mean ‘4out of the United States.” Courts of last resort in eight States construe the phrase as first stated — that is, to be beyond seas one must be out of the jurisdiction of the State, while the courts of last resort in seA'cn other States haAm settled upon that interpretation which places a person beyond seas as out of the United States.

It is needless to discuss these authorities in detail. They are referred to on the briefs of counsel and likewise in an opinion from the Treasury in another case deciding this question adversety where the contention was that the HaAvaiian Islands Avere not beyond seas within the contemplation of the act under which that, as Avell as this claim, have been made. Their persuasive character, eAren if it could be said that the question involved is exactly analogous to this issue, is greatly lessened by the different views expressed. At the same time it is probably true, as stated by the Comptroller of the Treasury, that in none of the States where the subject has been under consideration has the expression been literally construed. (7 Comp. Dec., 115.) So far as the American decisions go, there does not seem to have been any occasion for going into the status of a person in the island possessions of the United States. The time had not come for that when the cases were considered. . •

Generally speaking, “beyond seas” means out of the Kingdom of England; out of the State; out of the United States. (Bouv. Law. Diet.)

In wbat sense did Congress use the words in the act under consideration ? And what was the measure of pajr intended to be given to naval officers serving in the new acquisitions of the United States?

It is said, citing Black on Interpretation of Laws, that when an act of Congress uses a technical term which is known, and its meaning is clearly ascertained by the common or the civil law,JErom one or the other of ivhich it is obviously borrowed, it is proper to refer to the one from which it is taken for its meaning, and that Congress must be presumed to have used the language of the proviso according to what is claimed to be the established legal interpretation in this country and in England, unless it appears from the act that there was an intention to use the language in its literal sense,'

The diverse views as to where a person had to be in order to be beyond seas leaves room to doubt whether Congress adopted the proviso with reference to anjr of the adjudicated cases. Rather should resort be had, if there be any ambiguity or doubt, to the circumstances surrounding the passage of the act, the history of the times, and the defect which the statute was intended to remecty. (Smith v. Townsend, 148 U. S., 490.)

At the time of the enactment the relinquishment of all claim of sovereignty over and title to Cuba by Spain was provided for in a treaty then pending, and Spain had ceded to the United States by the same instrument the islands of Guam and Porto Rico and the archipelago known as the Philippines. Technically none of the territory included in the treaty belonged to the United States. But the ratification was accepted as a foregone conclusion, inasmuch as the proclamation closing the negotiations only awaited the willing action of Spain. The civil and political rights of the native inhabitants of the islands remained open as the treaty became operative, to be determined by Congress, there being an express stipulation to that effect.

Cuba was to become a protectorate under our Government, to be held as a dependency until such time as it could be granted political autonomy. All the islands were in possession of the armed forces of the United States. Legislation ivas then being directed to strengthening the Army and increasing the efficiency of the Navy. It was far from certain that with the close of the war with Spain peace and tranquillity would at once ensue among the people whose duty it was by the treaty and by previous conquest to submit to the authority of the United States. It was universally conceded that a necessity existed for the maintenance of a large military and naval force in the new acquisitions to prevent disorder and to maintain the authority of the United States while adjusting the native inhabitants to the new conditions imposed by change of government.

The cost of living was well understood to be greater in all the islands than at home, while there appeared greater obstacles to health and pleasure in a tropical climate than in the more temperate zone of our own country.

It was then a disputed question which time has not wholly cleared, whether upon the exchange of ratifications the new territory became an integral part of the United States, with the right on the part of their inhabitants (as Congress came to exercise jurisdiction) to be governed by the same Constitution and laws which apply to us, or whether the now acquisitions continued to be foreign and external, without the right by its people to claim the privileges accorded to citizens residing in Territories within the continental limits of the United States.

Since the decisions of the Supreme Court referring to the relations which the newly acquired countries and their inhabitants bear to the United States, it is neither important nor useful in the determination of the issue now presented for this court to enter that field of discussion. If stated, these views would perhaps only emphasize differences of opinion, as far as it would now be permissible to state them.

The decisions of the court of last resort in what have come to be known as the insular cases have gone far enough to clearly establish two propositions. Constitutional provisions and limitations do not control Congress in legislating for the inhabitants of the ceded territory in matters of taxation and the regulation commerce. Congress may direct otherwise, but not until after that body shall determine a different policy can the people of the newly acquired acquisitions claim any-tiling different from that state of affairs established by these cases. (De Lima v. Bidmell, 182 U. S., 244; Downes v. Bidwell, 182 U. S., 244; Dooley v. United States, 183 U. S., 151; Fourteen Diamond Rings v. United States, 183 U. S., 176.)

It is not, as we view it, material to the -inquiry now to know that the decisions only establish the want of commercial unity in the government and differences in the methods of taxation and the collection of revenue as between the people in the continental limits of the United States and the people of our new acquisitions. It is enough to say that none of these questions were settled when the statute we are considering was enacted, and that the uncertainty covered not merely these points but others as well. The new acquisitions were regarded by some, on the exchange of ratifications, as domestic territory, and by others as yet so foreign as never to become like one of our Territories at home, but dependencies out of the jurisdiction of the United State, until incorporated; by some as one country, covered by one flag, with one kind of government, while others yet did not deem it incompatible with our Constitution.and laws to maintain a distinct power and a separate government over the conquered people until Congress should decide otherwise in the indefinite future.

It does not seem to us reasonable to say that Congress intended to give this increase to naval officers serving in Cuba at our very doors and to withhold it from those serving thousands of miles off in the Philippine Islands. It is even less reasonable to say that it was intended that the few officers serving as naval attaches at foreign legations should have an increase in their pay while'the same increase was.denied officers engaged in far more arduous service abroad. We say “abroad” because, in a substantial sense as well as from a technical point of view, a large part of our naval force was on the other side of the world and beyond seas from the seat of government. Said the Supreme Court:

“Beyond the cape and ‘east of the cape’ are often used in the acts of Congress as equivalent expressions, and they indicate the locality of certain countries with reference to the position of the lawmakers at the national capital. In a similar manner would the words ‘beyond the Mississippi’ be considered, if found in an act of Congress. They would be held to refer to a country west of the Mississippi, which, with reference to the legislators at Washington, would lie beyond that river.” (Hadden v. Collector, 5 Wall., 107, 113.)

The difficulty with the present Government contention is that the law would be discriminative without reason for its partiality. We say “present” contention because when the statute took effect its provisions were practical^ applied to officers like plaintiff. The accounting officers deemed him to be within the statute, but subsequent consideration brought about a change of views, and naval officers serving on shore, though far from home, were denied payment to await the decisions of the courts. Without affecting any but those in Cuban ports (where our officers were not expected to remain) and the few connected with the diplomatic service (where the duties wore light), the statute would have but little to operate upon.

Our conclusion is that as the language does not justify the exclusion of those on shore duty in the Philippine Islands, but, on the contrary, the sound principles of the statute would be defeated by depriving officers there of the pay claimed, and plaintiff should recover the difference between the shore pay he has already received and the sea pay to which he is entitled.

Another aspect to this part of the controversy remains. IN the act of March 3, 1901 (31 Stat. L., 1108), Congress provided that officers “who have been detailed, or who may hereafter be detailed, for shore duty in Alaska, the Philippine Islands, Guam, or elsewhere beyond the continental limits of the United States shall be considered as having been detailed for-‘shore duty beyond seas,’ and shall receive pay accordingly.” It seems to us clear that this act relates back to the original statute. The language is that officers “who- have been,” etc., “shall be considered,” etc., not shall hereafter be faid. An officer’s account is always open. “Shall be considered” refers to anj^ or a final adjustment of an officer’s account.

We are not unmindful of the general rule that statutes shall not have a retroactive effect. But exceptions do exist, and the language of the act of 1901 (su])ra) immediately points to the intent of the previous act on the subject and declares its meaning, if there was then any doubt of its previous operation. The accounting officers had raised a doubt. Congress ■had the privilege of restating the meaning of the first statute, and wo think that body removed the objections taken at the Treasury.

The next question for determination on this branch of the case relates to the 10 per cent increase allowed for service over and above the rates fixed by law in times of peace, and the proper method of calculating the increase.

The act of May 26, 1900 (31 Stat. L., 211), is an army act. It provides:

“That hereafter the pajr proper of all officers and enlisted men serving in Porto Rico, Cuba, the Philippine Islands, Hawaii, and the Territory of Alaska shall be increased 10 per centum for officers and 20 per centum for enlisted men over and above the rates of pay proper as fixed by law in times of peace.”

Under the operation of the acts of March 3, 1899, and March 3, 1901, plaintiff claims that as his service on shore at the Cavite Naval Station was shore duty beyond seas ho is entitled to the full sea pay of his rank while on such dut}r, as provided by law for officers of the Army of corresponding rank similarly detailed, and that the increase of the pay proper of officers and enlisted men made in the Army appropriation act of May 26, 1900, grants to him, under the operation of the act of March 3, 1899, an increase of 10 per cent of his pay proper, such pay proper being the sum of $3,500 a year as the pay of an officer of his rank of more than twenty years’ sol'vice. But the question is whether the increase shall be calculated upon the minimum pay of the grade or upon the total pay, including longevity increase. In other words, shall the increase be computed upon $2,500, constituting the lowest pay of a lieutenant-commander, or upon $3,500, constituting the total pay which carries the amount of the longevity increase?

The proper determination of the question depends upon the true meaning of the words “pay proper” as they appear in the statute.

It is insisted by the. defendants that in using the words “pay proper” the minimum pay of the grade is the true basis of calculation. That is the construction of the accounting-officers (1 Comp. Dec., 668, and 6 Comp. Dec., 944).

The want of any statutory definitioiisOr direct judicial determination involves the matter in doubt as to whether “pay” and “pay proper” are equivalent, and whether the word “proper” refers to any special kind of payor only means that compensation which is properly called “pay.”

Military lexicons disclose differences between pay and allowances to officers. These differences nowhere appear more clearly stated than in Sherburne's case (16 C. Cls. R., 491), in which, quoting from Scott’s Military Diction ary,, it is shown that—

“Pay is a fixed and direct amount given by law to persons in the military service in consideration of and as compensation for their personal service. Allowances, as they are now called, or emoluments, as they were formerly termed, are indirect or contingent remuneration which may or may not be earned, and which is sometimes in the nature of compensation and sometimes in the nature of reimbursement.”

In Tyler v. United States (16 C. Cls. R., 223) the method of computing longevity pay prescribed bv section 1262 of the Revised Statutes was declared to be not by taking- one-tenth of the officer’s fixed annual pay, but one-tenth of his current yearly pay; that is, his second longevity pay to include 10 per cent of his first longevhy pay, subject to another provision limiting the total amount of such increase to 40 per cent of the fixed annual pay. In affirming this judgment, Mr. Justice Miller, for the Supreme Court, said that — ■

“The words ‘current yearly pay’ require that when the increased pay for any period of five years is to commence the 10 per cent must be counted on the regular salary added to its increase by any previous periods of five years; so that the original salary of the rank and any additions of 10 per cent previously earned for periods of five years constitute the current yearly pay on which said 10'per cent is to be calculated.” (105 U. S., 244, 246.)

In Emory v. United States (19 C. Cls. R., 255) it was held that the “three months’ extra pay” given to those who served in the war with Mexico, by the acts of 1848 and 1879, is pay proper, not pay and allowances. This opinion treats “paj7” and “pay proper” as interchangeable terms.

An officer’s annual pay implies a pay subject to change. When the longevity increase attaches it is as much of the officer’s proper pay as the amount first fixed.

Pay proper is pajr regulated by service. It depends upon the officer’s longevity. Longevity arises out of length of service and is founded on that. The pay proper in such a case is determinable upon an officer’s lustrum — the amount he is to receive for every five years’ period of service.

Longevity paj' provisions are a legislative convenience. They go hand in hand with the officer’s pay as the years add to his term of service. These provisions say in effect that a major shall receive, during the first five years of service, $2,500; during the second, $2,750, etc. Thus longevity- pay is as fixed and certain as if actual amounts had been named.

From these views we think that the computation made upon the minimum pay of the grade is erroneous. Plaintiff is therefore entitled to the $256.35 first allowed him by the accounting officers, but afterwards checked against his pay, and to an addition of $26.39 as the 10 per cent increase upon his longevity pajT, making a total of $282.71.

The third question presented relates to the commutation for quarters. It appears that plaintiff had but one room furnished him for quarters because there were no other public quarters available at his station. Commutation is claimed for three rooms not furnished.

In the opinion of this court contemporaneously announced herewith in Odell v. United States (post), it is shown that the theory of commutation'is compensation or reimbursement for something paid out. The only difference between this case and Odell’s is that here one room only was available, whereas Odell found not even one room available, but occupied quarters assigned to another officer by the consent and courtesy of the officer first in possession. In both cases the officer claiming commutation was relieved from expense and neither became entitled to recover, from defendants the value of quarters not paid for by the officer. As no expense was incurred, this part of the claim must be denied.

Judgment for $282.71 will be entered in plaintiff’s favor.  