
    CHARLES H. ROCKWELL v. THE UNITED STATES.
    [No. 14739.
    Decided May 3, 1886.]
    
      On the Proofs.
    
    The claimant serves in the volunteer Navy for more than four years as acting master, lieutenant, and lieutenant-commander. He then serves in the regular Navy as master, lieutenant, and lieutenant-commander. When the act 15th July, 1870, attaches graduated pay to the grades of masters and lieutenants he is a lieutenant in the regular Navy. But he receives no benefit from the act 3d March, 1883, for length of service in the volunteer service because the accounting officers construe the act to refer to the grade of master, which at the time he held it had no graduated pay.
    I. Under the AetScl Ma/roh, 1883(22Stat. L., 473), a naval officer who served in the volunteer Navy is entitled to credit for such service in the lowest grade in the regular Navy having graduated pay at the time he held it.
    II. All laws should receive a sensible construction.
    
      III. Tlie act 3d March, 1883, deals with the credit for length of service as it might have been given -when the grade having graduated pay was first held by an officer who had served in the volunteer Navy. Subsequent service cannot be credited.
    IV. The act deals with credit for length of service and the additional pay which arises therefrom. It does not increase the salary of a lower grade antecedently held by an officer.
    V.The pay acts apply only to the grades held by officers while such acts were in force. Therefore credit for length of service should not be given in a grade which did not have graduated'pay when held by the officer merely because graduated pay was subsequently attached to it.
    
      The-¡Reporters' statement of the ease:
    The following are the facts.of this case as found by the court: ■
    I. The claimant was commissioned and served in the regular and volunteer Navy as follows:
    (1) Acting .master in volunteer Navy from July 15, 1862, to December 16, 1862.
    (2) Lieutenant from December 16. 1862, to April 29, I860.
    (3) Lieutenant-commander from April 29, 1865, to December 8, 1865, when he was honorably discharged.
    (4) Acting master from November 19, 1866, to March 12, 1868.
    (5) Master in regular Navy from March 12, 1868, to December 18, 1868.
    (6) Lieutenant from December 18,1868, to February 26,1878.
    (7) Lieutenant-commander from February 26,1878, to March 3, 1883.
    II. He has been paid for all said services in accordance with the laws in force at the time they were performed, but has received nothing on account of the provisions of the Act March 3, 1883, chapter 97 (22 Stat. L., 473), requiring credit to be given to all officers of the Navy for the time they have served as officers or enlisted men in the regular or volunteer Army or Navy, or both.
    
      Mr. John Paul Jones and ilfr. Robert B. Lines for the claim-ant.
    The act of March 3, 1883, required credit for volunteer naval service to be given an ex-volunteer, now regular naval officers, “ in the lowest ” something “ held by such officer since last entering the service.”
    Lowest what? Lowest “grade having graduated pay.” This is a substantive, although a round-about expression. Perhaps, when naval nomenclature shall have advanced in the direction of brevity, some one word will be adopted to signify “grade having graduated pay,” just as “ royal ” or “ sky sail” is used to signify to the nautical mind a particular sail on a ship.
    Now it is conceded on both sides that this act of 1883 has a retrospective operation. The word “lowest” necessarily implies this. We say the court must lookback along the officer’s service since last entering the Navy and see what commissions he has held, and when he held them, and whether they were to “ grades having graduated pay. ” when he held them, and credit prior service on the lowest of such commissions.
    The defense says the court must look back along the line of the officer’s service since last entering the Navy, see what commissions he held and when he held them, and then must turn forward again to the law as it stood in 1883 to see whether any of those commissions were to “ grades noto having graduated pay.” If the court find that any of those commissions now have graduated pay attached to them (as all of them must have under section 1556, Revised Statutes), then it must take the lowest of those commissions, turn back again to the time the officer held it, and credit all prior service upon it. This must be done, although such commission when held had no graduated pay, and the credit, therefore, will not be of the slightest use to the officer in the matter of pay (to affect which was the sole object of the act, rank being expressly excluded and retirement fully provided for in section 1446, ftevised Statutes). Of course it is of no use to give a man greater length of service in a grade where length of service did not affect pay.
    Why Congress, in legislating for a lowest grade, necessarily long past when officers are in the line of promotion, should qualify it by words having reference solely to the present, is not explained by the defense.
    Defendants say: “ If the pay of master had been graduated at the time it was held by claimant there could be no possible question of the application of the statute to such grade. This, of course, would not be of so great advantage to claimant as if his lowest grade were fixed at that of lieutenant, but it would be hard to see why it should be regarded as inequitable.” It would not be regarded as inequitable. If the pay of a master had been graduated when claimant held that grade, the act of 1883 would for the time he was a master give him the difference between the first and second five years’pay, which, under section 1556, Revised Statutes, is exactly the same per annum as the difference for a lieutenant. But what is inequitable is that defendants’ construction, applying present laws to past facts, gives the claimant no benefit whatever. And their hypothesis, even if correct, would not support such a construction.
    The simple fact is that Congress found certain irregularities existing in rank and pay between officers who came into the. Navy from Annapolis and those who came in from the volunteer service. The rank it declined to disturb. The pay it sought to equalize to some little extent. A glance at the record of Rockwell, as compared' with the four regular lieutenant-commanders, his seniors at the top of the list, will show these irregularities:
    Rockwell. — Acting master 5th July, 1862 ■ volunteer lieutenant 16th December, 1863; volunteer lieutenant-commander 29th April, 1865; honorably discharged 8th December, 1865; acting master 19th November, 1866; master 12th March, 1868;. lieutenant IStli December, 1868; lieutenant-commander 26th February, 1878.
    Charles J. Train. — Midshipman 27th November, 1861; graduated November, 1864; ensign 1st November, 1866; master 1st December, 1866; lieutenant 12th March, 1868; lieutenant-commander 30th June, 1869.
    Edwin White. — Midshipman 25th November, 1861; graduated November, 1864; ensign 1st November, 1866; master 1st December, 1866; lieutenant 12th March, 1868 ; lieutenant-commander 15th September, 1869.
    Oscar F. HeyerMAN. — Midshipman 30th November, 1861; graduated 22d November, 1864; ensign 1st November, 1866; master 1st December, 1866; lieutenant 12th March, 1868; lieutenant-commander 13th October, 1869.
    George W. Pigihan. — Midshipman 28th September, 1861; graduated November, 1864; ensign 1st November, 1866; master 1st December, 1866; lieutenant 12th March, 1868; lieutenant-commander 28th October, 1869.
    (See names in Hamersley’s General Naval Register.)
    
      Rockwell got Ms naval education in private life, and while he was serving as a volunteer officer during the war these regulars, now his superiors, were getting their education at the Naval Academy at the expense of the Government. If they had come out and served in the war they would have been Rockwell’s juniors and under his command.
    These officers became masters about the time of Rockwell’s second appointment to that grade as a volunteer, but when he became a regular master, March 12, 1868, they were made lieutenants by reason of their continuous regular service. While he was a lieutenant in 1869-they were made lieutenant-commanders, a grade he did not reach until nine years later, in 1878. Congress would not give Rockwell the rank his service would have given him if he had been in the regular Navy, and it would not give him the difference between lieutenant’s and lieutenant-commander’s pay, which these gentlemen received for nine years longer than he did.
    But Congress did propose to let him count his volunteer service on the first regular grade to which a graduated pay was attached. And this benefit, amounting to $600 or $700, the Comptroller now seeks to take from him by a forced and ungrammatical construction — a construction which, as we have shown in our former brief, would leave the words “ having graduated pay” without any force whatever. We submit this should not be done.
    The Official Naval Register of 1886 shows twenty-seven lieutenant-commanders who, having previously served in the volunteer Navy, were appointed to the regular Navy on the same day as Mr. Rockwell (viz, March 12, 1868), under authority of the Act of July 25, 1866 (14 Stat. L., 422). These officers, being now in the same grade as Mr. Rockwell, were, like him, promoted from the grades to which they were appointed before July 1, 1870, and would be entirely cut off from the benefit of the act of March 3, 1883, by the defendants’ construction. The result would be that the benefit of that act, which in terms provides for “ all officers,” would be practically confined to warrant officers, who are not in the line of promotion, and officers of the line would be cut out altogether. This is neither just nor reasonable, and ought not to prevail.
    ' Mr. P. P. Dewees for the defendants.
   Richardson, Cli. J.,

delivered the opinion of the court:

The claimant, an officer of the Navy, brings this action to recover the additional pay to which he alleges that he is entitled under the following provisions of the Act of March 3,1883, chapter 97 (22 Stat. L., 473):

“And all officers of the Nary 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 officer since last entering the service:
Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers:
“Provided further, That nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his service in the volunteer Army or Navy.”

From July 16, 1862, when the claimant entered the service, line officers of the Navy received, under the Act of July 16, 1862, chapter 183 (12 Stat. L., 586), no additional pay for length of service until the passage of the Act of July 15,1870, chapter 295, section 2 (16 id., 330, now Rev. Stat., § 1556). From June 30, 1870, by the latter act, $200 a year additional has been allowed to lieutenant-commanders after four years from date of commission, and the same amount to lieuteuants, masters, and ensigns after five years from date of commission.

• It may be noticed that the length of service which gives additional pay to officers of the Army counts from their first entry into service, and the pay is increased every five years until it reaches 40 per cent, of their grade, or, in the case of a colonel, to $4,000 (Rev. Stat., §§ 1262, 1263, 1267; act of June 18, 1878, ch. 263, 7; Tyler's Case, 16 C. Cls. R., 223), while the length of service which gives additional pay to officers of the Navy counts only from the date of commission and begins anew with each commission, ánd'the officers of the line have but one increase of pay for length of service. (Rev. Stat., § 1556.)

That additional pay was expected to follow the credit for length of service is evident from the last proviso, which is that “nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his service in the volunteer Army or Navy," thus implying that it was to be given in other cases, and so the act has been construed by accounting officers.

The provisions of the act of 1883 seem, to have been enacted for the purpose of giving to all officers in the regular Navy, since last entering the service, in the grade first held by them then having graduated pay, credit for all their previous service in the Army or Navy, or both, regular or volunteer, and whether continuous or not, in order that while they remained in such grade they should have the additional pay then allowed for length of service.

The claimant served three years four months and twenty-three days in the volunteer Navy as acting master, lieutenant, and lieutenant-commander, when he was honorably discharged December 8,1865. He last entered the service March 12,1868, and has served continuously ever since in different grades. First he was acting master from November 19,1866, to March, 1868, and then master till December 18,1868, two years and twenty-nine days. At that time the grade of master had no graduated pay. From December 18, 1868, he served as lieutenant, for which grade as well as that of master graduated pay was first established by the Act of July 15, 1870, chapter 295, section 3 (now Rev. Stat., § 1556).

Therefore the lowest grade having graduated pay when held by the claimant since last entering the service was that of lieutenant. Credit under the act of 1883, for previous service, which was more than five years, must be given to him in that grade. Turning to the pay acts in force at that time we find that such credit would entitle him to no additional pay until July 1, 1870, from which time, under the act of July 15 of that year, he would be entitled to $200 a year additional to his regular pay for length of service. He was in fact so paid, under the pay law then in force, after five years’ service in that grade from December 18,1873, till he was promoted, February 26, 1878.

But he has not been paid for additional pay accruing from the act of 1883, from July 1,1870, to December 18,1873, which amounts to $691.60.

This is the only reasonable and sensible interpretation which we can give to the act of 1883, and, as was said by Mr. Justice Field in United States v. Kirby (7 U. S. R., 486), “all laws should receive a sensible construction.”

Other intrepretations have been suggested which we cannot adopt. The act provides that all’officers “shall be credited with the actual time they have served as officers and enlisted men and shall receive all the benefits of such actual service in •all respects and in the same manner as if all said service had been continuous in the regular Navy in the lowest grade held by them having graduated pay held by such officer since last entering the service.”

The strict letter of this language would include credit for length of service after leaving the grade first held with graduated pay, as well as services before entering that grade. But we understand the act to deal with the credit for length of service as it might have been given when the grade having graduated pay was first held, and of course subsequent service -could not then have been reckoned, and the claimant does not ask for that construction.

Again it is suggested that in order to give 'the officer all the benefits of such actual service as though it had been in the .grade to which it is to be credited, as the language of the act provides, he ought to have the full salary of that grade for the whole time, back to his re-entry into the regular Navy, although he might have held during that time a lower grade having less pay. But a sensible and reasonable view of the act is that it deals with credit for length of service and the additional pay which arises therefrom, and not with the matter of regular salary ; and thus it appears to have been understood by all parties.

But it is claimed for the defendants that the credit for length of service under the act of 1883 should be given in the lowest grade having graduated pay by the then existing law which the claimant held since last entering the service, although when it was held by him it had no graduated pay. This construction we do not adopt.

The pay acts apply only to the grades held by officers while such acts were in force. To give credit for previous length of service in a grade which did not have graduated pay when held by an officer, merely because it did have graduated pay under a subsequent law when he did not hold it, and when such credit could confer no benefit, would require an unreasonable construction of the act, which should not be adopted if there be the slightest ambiguity or doubt.

The act of 1883 seems to deal with the status of the officers while they were passing through the different grades held by them, both as to credit for length of service and as to pay which may be affected by such credit. As the law in force when officers held their different grades must regulate their pay, and as that law is not changed by the act of 1883, so the credit for length of service must be held to relate to the same period of time; that is, the time in which the grades were actually held.

The claimant will have judgment for $691.60.  