
    SILAS W. TERRY v. THE UNITED STATES.
    [No. 22927.
    Decided March 28, 1904.]
    
      On the Proofs.
    
    A rear-admiral, in the nine lower numbers, doing shore duty receives the pay of a brigadier-general pursuant to the provisions of the navy personnel act. He claims the old pay of an admiral pursuant to the act 7th June, 1900. The defendants contend that the old pay to which he might be entitled would be that of commodore.
    I.The-object of the Wavy Personnel Act, Set March, 1889 (30 Stat. Ij., 1005), was to equalize army and navy pay, but irot to reduce it.
    II.The Act 7th Pune, 1900 (31 Stat. L., 097), engrafted on the policy of equalizing pay the qualification that the pay of a naval officer then in service should not be reduced, and that he should receive the pay he would have received but for the passage of the act.
    III. The navy personnel act abolished the grade- of commodore and practically constituted, within the. grade of rear-admiral, a new grade for pay purposes known as “ the nine loioer numbers,” into which commodores were advanced without increase of pay; but under the act 7th June, 1900, the old pay of rear-admirals extends to a rear-admiral in the nine lower numbers.
    IV. The question of what rank an officer would be but for the passage of the navy personnel act can not be considered.
    
      
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Silas W. Terry, entered the Navy on the 28th day of September, 1858, and became by successive promotions a captain in the Navy.
    On the 29th of March, 1900, he was promoted to and commissioned a rear-admiral, and was embraced in the nine lower numbers of that grade until the 11th day of April, 1902. During all the time that he was in the nine lower numbers of the grade of rear-admiral he was on shore duty as commandant of the Washington Navy-Yard.
    II. During the entire .time of the claimant’s service as a rear-admiral in the nine lower numbers of that grade, from March 29, 1900, to April 11, 1902, he was paid at the rate of pay of a brigadier-general in the Army, $5,500 a year, less 15 per cent for shore duty, $4,675.
    If he is entitled to be paid at the rate fixed by section 1556 of the Devised Statutes for a rear-admiral on shore duty, $5,000 a year, he will be entitled to the difference between $4,675 a year and $5,000 a year, $325 a year, amounting for the period from March 29,1900, to April 10,1902, to $661.73.
    
      Mr. George A. King and Mr. William B. King for the claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Praclt) for the defendants.
   Howry, J.,

delivered the opinion of the court:

Plaintiff is a rear-admiral, embraced in the nine lower numbers of that'grade, in the Navy. During the time set forth in the findings he has been continuously employed on shore duty and paid at the rate of $4,675 a year, which is the pay of a brigadier-general in the Army, fixed by statute (sec. 1261, Rev. Stat.) and made applicable to rear-admirals embraced in the nine lower numbers of that grade by section 7 of the act of March 3, 1899 (30 Stat. L., 1005), less 15 per cent fixed by the proviso contained in section 13 of that act on account of shore service. The claim is that under the amendment of June 7,1900 (31 Stat. L., 697), a rear-admiral of the nine lower numbers is entitled to receive the old navy pay of rear-admiral authorized by section 1556 of the Revised Statutes, in preference to the rate of pay of a brigadier-general in the Army, as fixed by section 7 of the act of March 3, 1899, supra, known as the navy personnel act.

Section 7 of this act of March 3, 1899, provides:

“ That the active list of the line of the Navy * * * shall be composed of 18 rear-admirals: * * * Provided, That each rear-admiral embraced in the nine lower numbers of that grade shall receive the same pay and allowances as are now allowed a brigadier-general in the Army.”

And section 13 of this act provides:

That after June thirtieth, eighteen hundred and ninety-nine, 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 by or in pursuance of law for the officers of corresponding rank in the Army: Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty. * * * And provided further, That no provision of this act shall operate to reduce the present pay of any commissioned officer now in the Navy; and" in any case in which the pay of such officer would otherwise be reduced he shall continue to receive pay according to existing law.”

The provision of the act of June 7, 1900 (2 Supp. R. S., 1451, par. 2), amended the act of 1899 in regard to pay of officers of the Navy as follows:

“ 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" United States ’ is hereby so amended as to provide that nothing therein contained shall operate to reduce the pay which, but for the passage of said act, would have been received by any commissioned officer at the time of its passage or thereafter.”

The defendants contend that the foregoing amendatory act was passed “ for the purpose of protecting those officers who ivere advanced in grade, but not advanced in rank, and by which advancement in grade they would not receive the same pay that they had previously been receiving,” citing a decision of the Comptroller of the Treasury against the claimant in support of the contention. (7 Comp. Dec., 162.)

We are of opinion that the measure of compensation is that fixed by the statute which antedates the act of 1899. Section 1556 of the Revised Statutes fixed the pay of a rear-admiral for duty on shore at $5,000 a year. Section 7 of the personnel act was enacted subject to the qualifications and restrictions of the first proviso of section 13 of the same act. (Rodgers v. United States, 36 C. Cls. R., 266; 185 U. S., 83.) It seems most reasonable to say that section 7 is likewise subject to other general provisions qualifying the rules as to pay of naval officers. Inasmuch as the qualification appears by a proviso to section 13 and also by a subsequent act, effect should be given to the provisions of the subsequent act where the apparent purpose was to prevent the reduction of pajL

The object of the personnel act was to equalize army and navy pay, but not to reduce ih. In Colhoun v. United States (38 C. Cls. R., 198) we held that the act of June 7, 1900, engrafted on the j>olicy equalizing páy the qualification that the pay of a naval officer should not be reduced then or thereafter, and that he should receive the pay he would have received but for the passage of said act.

But it is argued that the navy personnel act abolished the grade of commodore and practically constituted a new grade for pay purposes within the grade of rear-admiral known .as the nine-lower numbers of that grade, and into this sub-;grade the commodores were advanced. Citing the Comptroller, it is said that “ had the navy personnel act not passed, the claimant would not now be a rear-admiral, but a commodore.”

But the navy personnel act did pass. Plaintiff was promoted to the grade of rear-admiral of the nine lower numbers. The pay which plaintiff might have received as a commodore can not be the measure of his compensation, because he is not a commodore. The pay pertaining to that grade has been abolished, because the grade of commodore no longer 'exists. The old navy pay is not applicable to some rank which plaintiff might have attained to, but is applicable to his present rank. If the equality attempted by the personnel act is disturbed by the act of 1900 the result was one of intention, because the qualification against reduction is manifested by phraseology that admits of no other conclusion.

The question what rank an officer would occupy but for the passage of the personnel act can not be considered, and this is properly in line with the view we have adopted. (In re McVay, 7 Comp. Dec., 29.)

Judgment will be entered for plaintiff in the sum of six hundred and sixty-one dollars and seventy-three cents ($661.73).  