
    WILLIAM J. BARNETTE v. THE UNITED STATES.
    [No. 18132.
    Decided March 18, 1895.]
    
      On the Proofs.
    
    A lieutenant in the Navy serves as executive officer on the Saint Marys, a United States vessel, hut used for the nautical school of the city of New Yorh. The question involved is whether he is entitled to sea pay.
    I.The Act %0th June, 1874 (18 Stat. L., p. 121), authorizes the Secretary of the Navy to furnish a naval vessel upon the application of the governor of a State, to he used for the benefit of any nautical school.
    II. A ship afloat, officered, manned, victualed, equipped, and capable of proceeding to sea, on which seagoing service, discipline, and duty, are required, though in a harbor, is within the intent of the Revised Statutes, section 1571, “ a ship at sea.”
    
    III. A ship placed at the serviceof a State for the purpose of nautical instruction under the act 20th June, 1874, is a ship acting “under the orders of a Department,” and is a vessel “employed by authority of law" within the intent of the Revised Statutes section 1571; and an officer ordered to service on board of her by the Secretary of the Navy is acting “ under the orders of a Department,” and entitled to sea pay.
    IV. Where a school ship remains in the possession and under the control, discipline, and authority of the Government the fact that the officers are ordered to carry out the directions of a board of education does not change the character of the vessel. She is still a naval vessel under the orders of the Navy Department.
    . V. Payment to a naval officer by a State for acting as instructor in a nautical school does not'in any way affect the rate of pay at which he should be paid by the United States.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant has been a lieutenant in the Navy of the United States since 1872. On the 1st of January, 1891, in obedience to an order from the Secretary of the Navy, he reported to Commander A. S. Crowninshield for duty as executive officer on board the St. Mary’s, a sailing vessel owned and employed by the United States.
    
      He continued to perform tbe duties of executive officer and instructor from that day until October 24,1893, the date of filing his petition. Commander Orowninshield, an officer of the United States Navy, commanded the vessel until January 3, 1891, when he was succeeded by Commander McGowan, also an officer of the Navy. Throughout claimant’s service on said vessel he has received no orders except from these officers. Through him his junior officers received the orders of these commanding officers.
    II. Commander Orowninshield indorsed on claimant’s order the fact that he had reported for duty, and a copy of said order was then filed with the United States paymaster at the New York Navy-Yard.
    III. While on the St. Mary’s he has been paid by the United States as follows:
    As in second five years’ service, on shore duty ($2,200) from January 1,1891, to and including March 31, 1891; as on sea duty ($2,600) from Aiiril 1,1891, to and including November 22, 1891; as on shore duty from November 23, 1891, to and including March 24,1892; as on sea duty from March 25,1892, to and including November 11,1892; as on shore duty from November 12,1892, to and including date of his claim, the 24th of October, 1893, and he claims that for the periods above mentioned for which he has received shore pay, to wit, 559 days, he has been entitled to sea pay and a ration, and he brings this action to recover the difference, to wit, $780.25.
    IY. About the middle of May in each year the St. Mary’s has gone on a cruise lasting until about the middle of October. The complement of officers is the commanding officer, the executive officer, one lieutenant, one ensign, and one surgeon. The commanding officer is required semi-annually to make written report to the Secretary of the Navy of the professional ability and the attention of his subordinate officers to the duty to which they have been assigned, as well as of their sobriety, health, and general conduct, and also of the efficiency of men under their special control. This report is in conformity to the general regulations requiring reports on the fitness of all officers of the Navy.
    Y. The crew of the St. Mary’s consists of twenty-two men of different grades and ranks, seven of whom are of the title seamen. These are all employed by the city of New York.
    
      VI. On board tbe ship there are two messes, the commander’s mess and the wardroom mess. The plates, towels, etc., of the mess are furnished by the officers. The claimant contributed his share of their cost when he became attached to the vessel, he contributes from time to time to keep them up, and when he is detached he will sell out his share to his relief. The wardroom officers on a flagship average from twenty to twenty-two, and on a smaller man-of-war ten to fifteen; on account of the small number in the wardroom of the St. Mary’s the expense of the mess is about 50 per cent greater for each man than upon a man-of-war or other larger vessel.
    During the periods when the ship is not cruising the claimant’s relation to the mess and the stateroom are precisely the same as when she is under sail. He is compelled to wear his uniform all the time while on duty; while at anchor he keeps his clothes in the stateroom which he occupies and in which he sleeps. He is on duty at the vessel every day, and in the matter of quarters, mess, and uniform there is no difference, whether the vessel is under sail, riding at anchor, or tied to a wharf.
    VII. Claimant’s duties as executive are the care and preservation of the ship, looking after the crew, attending to the details of the organization and police of the ship.
    He has been instructor of seamanship. The winter routine, in addition to the instruction in the ordinary school branches, includes seamanship, navigation, sailmaking, and practical exercises in these particular branches; also sending the boys aloft; they go over the masthead, also go aloft for the purpose of loosing and furling sails and reefing, and do other work necessary on shipboard. These things are done under claimant’s orders. While the vessel is tied to the wharf, weather permitting, the boys are exercised every day in going aloft and out on the yard. A yard has been rigged- for exercising seamanship with sails, in making, loosing, furling, and reefing, and that sort of instruction which relates purely to a seaman’s life.
    VIII. The St. Mary’s had been furnished for educational purposes by the Secretary of the Navy under the Act 20th June, 1874 (18 Stat. L., p. 121); but the command of the vessel was always retained in an officer in the United States Navy. The nautical school on board of the vessel was established by the board of education of the city of New York. The vessel cruises ordinarily from about the 15th of May until some time in October. From October until May, as a rule, she does not cruise. The claimant has been allowed by the accounting officers of the United States sea pay while the vessel was on a cruise; but has been allowed only shore-duty pay when the vessel was not on a cruise and lying attached to a dock in the harbor of New York, he then, however, being and living on board and doing the duty and being subject to the regulations of a ship at sea. The claimant also acted as an instructor of the pupils of the nautical school on board of the St. Mary’s for which service he was paid by the board of education.
    IX. For a period of two and one-half years prior to December 31,1890, the claimant had been attached to the U. S. S. Galena, and had been on a cruise, performing sea duty and receiving sea pay during that time.
    X. In the official routine of duty in the Navy Department ordinarily alternates the sea and shore duties of officers, so far as the same may be practicable, by assigning them alternately to sea and shore duties for periods of about three years each. The order of the Secretary of the Navy on the 30th December, 1890, assigning the claimant to duty on the nautical school-ship St. Mary’s, was in these words:
    “Navy Department.
    “ Washington, December 30,1890.
    
    “Sir: You are detached from the Minnesota on the 31st inst., and will report to Commander A. S. Crowninshield on the same day for duty as executive on board the nautical school-ship St. Mary’s as the relief of Lieutenant C. C. Cornwell.
    “ This employment on shore duty is required by the public interests, and such service will continue until 31 December, 1893, unless it is otherwise ordered.
    It was in obedience to this order that the claimant served on the St. Mary’s as executive officer.
    XI. The object of the nautical school is to instruct young men in maritime matters so as to fit them for any service connected with maritime life, leaving them free to go into the merchant marine or Navy. The instruction is in seamanship, navigation, sailmaking, and everything pertaining to a seaman’s life.
    
      NTT. Tbe Navy Department when assigning officers to duty on school-ships has done so by orders similar in terms to that set forth in finding x.
    
      Mr. John 8. Blair for the claimant.
    This case is much stronger than that of Strong v. The United States (125 TJ. S., p. 656), decided April 16,1888, and upon the decision in that and the following cases we rely: Symonds, 21 O. Cls. R., 153; 120 U. S., 46; Bishop, 21 O. Ols. R., 215; 120 U. S., 51; Strong, 23 O.Ols. R., 17; 325 U. S., 657; Aulieh, 27 O. Ols. R., 109.
    
      Mr. George S. Gorman (with whom was Mr. Assistant Attorney-General Bodge) for the defendant:
    If we concede that under the.doctrines laid down in the decisions heretofore cited the services rendered by the claimant while the St. Marys was tied to her wharf (he has been paid sea pay for all the time that the vessel cruised) were services rendered at sea, it still remains to be determined whether such services at sea were rendered “ under orders of a Department and in a vessel employed by authority of law.”
    Of course the claimant was ordered to duty on the St. Marys by the Secretary of the Navy, and to that extent he was acting “under the order of a Department.” Butthis is not the point. The inquiry is whether the particular service, at the particular time and in the particular manner in which it was performed, was so performed “by order of a Department”; that is, when the ship went on a cruise it went by “ order of a Department,” and when it was laid up at a wharf it was so laid up by “ order of a Department.” The record shows that this was not done. The entire control of the movements of the St. Marys was in the proper authorities of the nautical school or municipal board, and the only authority that was exercised by the Navy Department over the United States officers thereon was in and about the regulations concerning naval discipline, etc.
    Of course, too, the St. Marys was lawfully employed, using the term lawful as the antithesis of unlawful. But, again, that is not the point. When the statute requires that the services must be rendered at sea “upon a vessel employed by authority of law,” the meaning is that such vessel must be employed by authority of law in and about the business of the United States. Now, the evidence in the case at bar shows that the St. Marys was employed in and about the business of the nautical school of the city of New York. The ownership of the vessel, to be sure, was in the United States, but the use of it had been loaned to, and was in the control of, the city, which manned it and equipped it and defrayed all its expenses and used it for purposes of its own.
    The order of the Secretary of the Navy designates this service of the claimant as shore duty, and the assignment was made in regular turn after a period of duty at sea, in the interest of the public service. It is admitted that the orders of the Secretary of the Navy, when not in conflict with acts of Congress, have the effect of law (Gratiot v. United States, 4 How., 80 5 Symonds v. United States, 125 U. S., 47-50) ,• and inasmuch, for the reasons already given, this order does not appear to be in conflict with section 1571, Revised Statutes, it is not perceived why such order should not be regarded as final.
    To this, of course, it will be answered that such compensation was a mere gratuity, so far as the United States was concerned, and can not operate to deprive an officer of that rate of pay which the law has fixed for’a certain class of service; and I am nob insensible to the full force of such a position as an abstract proposition of law. Considered, however, in connection with the facts of the case at bar, the answer is far more apparent than real, for the following reasons:
    Without intending to question the correctness of the decisions to which I have heretofore referred, it must be admitted that, upon the surface, at least, those cases appear to present a very strained construction of the law. When we remember that the statute (Rev. Stat., 1571) declares in positive terms that “no service shall be regarded as sea service except such as shall be performed at sea,” it certainly does not become immediately manifest that a vessel grounded in 10 feet of mud at her wharf) roofed over, heated by steam from the shore, and incapable of being moved from her position is at sea, or that service upon her is service “performed at sea.” It is only when we give the language of the decisions a close scrutiny that we discover that the character of the service and the additional expenses which it entails are made the test, and not the location of the ship; and if the services performed upon such a vessel and the resultant expenses are identical with service upon a ship actually at sea, then the officer is entitled to sea pay, irrespective of the location of the vessel.
    The decisions, then, apparently disregarding the letter of the law, have conformed themselves in consonance with what is held to be the meaning and intent of the statute. Following the line of thought just suggested, we are led to inquire into the reasons which actuated the lawmakers in fixing a higher rate of compensation for sea service than for duty on shore. The controlling, if not the only, reason, it is believed, is to be found in the fact that while at sea the officer can not reside with his family, but must, in addition to the expenses of his shore establishment, maintain his mess on board ship, and in this and in other ways be subjected to a greater personal expense than when on shore duty, in compensation for which a higher rate of pay is allowed him.
    And the decisions of the courts, following this reason of the law, have laid it down that where the services required of the officer are such as to entail upon him the expenses incident to sea service he shall be entitled to that rate of compensation, albeit the ship upon which he serves is not at sea. But that reason can not be applied to the case at bar, because the claimant received from the city of New York a rate of pay nearly four times as great as the difference between sea pay and shore pay, and which was a full compensation for these additional expenses. The reason upon which these decisions rest having failed in the case at bar, it is not perceived why those decisions should be invoked in conclusion of this case, and, mutatis mutandis, the attention of the court is directed to the maxim of the common law, u Oessante rations legis, oessat ipsa lex”
    
    It seems to us that claimant’s positions are distinctly inconsistent. Being on shore duty with resultant pay, he rendered certain services to the State or city of New York not included, as he claims, within the duties of his then position and pay as a United States officer, which, if he had performed them for the United States, would have entitled him to some $400 per annum additional. He has accepted pay from the city of New York, and has thereby committed himself most conclusively to the proposition that such services were not performed for the United States and were not within the duties of bis then position as a naval officer. If they were be bas committed a most gross official offense — that of taking pay from private individuals for performing bis duty as a public officer. Tbe only possible excuse or justification for bis accepting this pay from tbe city of New York must consist in tbe fact that tbe extra services performed on tbis scbool-sbip were not within but wholly outside of any duties imposed on him by bis superiors or bis official position. Tbe allowance of sea pay while actually on cruise, while perhaps inconsistent with this view, can not enhance tbe legal liability of tbe Government, for tbe reason that a ruling of a Department can not make law of that which is not law.
   Nott, J.,

delivered the opinion of the court:

The claimant served as executive officer of the nautical school-ship St. Mary’s. While the vessel was on a cruise he was allowed sea pay; while she was in the harbor of New York he was allowed shore pay. The vessel was manned and victualed by tbe State of New York, but owned and officered by tbe United States. The officers as instructors received their directions from the nautical school committee of tbe city of New York, but were always subject to the orders of the Navy Department, and if there had been a conflict of orders would unhesitatingly have obeyed the latter. The service was nominally for tbe benefit of the State, but really tbe United States bad just tbe same interest in the ultimate object of the school — the building up of the American marine and the advancement of American seamanship. It was a kind of partnership in which both contributed to tbe cost and in which both shared in tbe general benefits.

The law of the State, by authority of which this nautical school existed, is as follows:

“ Seo. 1068. The boardof educationare authorized and directed to provide and maintain a. nautical school in said city, for the education and training of pupils in the science and practice of navigation; to furnish accommodations for said school, and make all needful rules and regulations therefor, and for tbe number and compensation of instructors and others employed therein; to prescribe tbe government and discipline thereof, and tbe terms and conditions upon which pupils shall be received and instructed therein and discharged therefrom, and provide in all things for the good management of said nautical school. And the said board shall have power to purchase the books, apparatus, stationery, and other things necessary or expedient to enable said school to be properly and successfully conducted, and may cause the said school or the pupils, or part of the pupils thereof, to go on board vessels in the harbor of New York, and take cruises in or from said harbor for the purpose of obtaining a practical knowledge in navigation and of the duties of mariners. And the said board are hereby authorized to apply to the United States Government for the requisite use of vessels and supplies for the purpose above mentioned.
“ Sec. 1070. The said board of education shall appoint annually at least three of their number, who shall, subject to the control, supervision, and approbation of the board, constitute an executive committee for the care, government, and management of such nautical school, under rules and regulations so prescribed, and whose duty it shall be, among other things, to recommend the rules and regulations which they deem necessary and proper for such school.
“ Sec. 1071. After the establishment and organization of the said school, the expenses thereof, and of carrying out the provisions of this chapter, shall be defrayed from the moneys raised by law for the support of common schools in the city and county of New York.
“ Laws New York, 105 session, Yol. II.”

The law of the United States by authority of which the ship St. Mary’s was placed at the disposal of the board of education of the city of New York as a nautical school-ship is as follows:

“ That the Secretary of the Navy, to promote nautical education, is hereby authorized and empowered to furnish, upon the application in writing of the governor of the State, a suitable vessel of the Navy, with all her apparel, charts, books, and instruments of navigation, provided the same can be spared without detriment to the naval service, to be used for the benefit of any nautical school, or school or college having a nautical branch, established at each or any of the ports of New York, Boston, Philadelphia, Baltimore, Norfolk, and Sa.n Francisco, upon the condition that there shall be maintained at such port a school or branch of a school for the instruction of youths in navigation, seamanship, marine enginery, and all matters pertaining to the proper construction, equipment, and sailing of vessels, or any particular branch thereof.
“And the President of the United States is hereby authorized, when in his opinion the same can be done without detriment to the public service, to detail proper officers of the Navy as superintendents of or instructors in such schools:
Provided, That if any such school shall be discontinued, or the good of the naval service shall require, such vessel shall be immediately restored to the Secretary of the Navy, and the officers so detailed recalled:
And provided further, That no person shall be sentenced to or received at such schools as a punishment or commutation of punishment for crime.
Act June 20, 1874 (18 Stat. L., 121).”

If the nautical school on this ship had been maintained, and for the same purposes, by the United States, instead of by the State of New York', not a doubt would exist as to the right of the officers to recover sea pay for services rendered on board of the ship while she was subject to and actually governed by seagoing rules and regulations. Such may now be considered as settled law since the decisions in Symond's Case (21 C. Cls. R., 153; 120 U. S., 46), Bishop's Case (21 C. Cls. R., 215; 120 U. S., 51), Strong's Case (23 C. Cls. R., 17; 125 U. S., 65-67), Aulick's base (27 C. Cls. R., 109).

The statute does indeed say (Rev. Stat., sec. 1571) that “no service shall be regarded as sea service except such as shall be performed at sea;” but a ship at sea does not necessarily mean, so it has been repeatedly held, a ship on the high seas. A ship officered, manned, victualed, equipped, and capable of proceeding to sea, on which seagoing service, discipline, and duty are required, though in a harbor, is, within the intent of the statute, a ship at sea. The statute does not make an arbitrary or fanciful distinction in pay. Its imperative terms were intended to do away with a constructive sea service which formerly existed; and its manifest purpose is to help officers meet the additional expenses incident to sea service as compared with shore duty.

The nature of the service, therefore, which the claimant rendered was that of sea service; and the real question in the case is whether it comes within the restriction of an additional clause in the statute, “no service shall be regarded as sea service except such as be performed at sea under the orders of a Department and in vessels employed by authority of law.” Was this service on the school-ship performed under the orders of the Navy Department and in a vessel employed by the authority of law?

Undoubtedly the school-ship on board which the claimant served was employed as a school-ship by authority of law. The Secretary of the Navy did. not act illegally when he placed tbe vessel in tbis particular service. He bad statutory authority for wbat be did — tbe act -20th June, 1874, before set forth.

Tbe question, then, is narrowed down to tbis: Was tbe service performed under tbe orders of a Department? It is contended by tbe counsel for tbe defendants that tbe service was not performed under tbe orders of tbe Navy Department, but under tbe orders of tbe New York board of education or tbe executive committee of tbe nautical school.

Tbe order which placed tbe St. Mary’s on duty as a school-ship and, to a certain extent, at tbe disposal of tbe board of education, did not transfer tbe vessel to any other authority than that of tbe United States. Possession, control, discipline, and authority were all retained by tbe Government. Tbe officers doubtless carried out tbe directions of tbe board of education, but they did not do so because they were the orders of tbe board of education, but because they were sent by tbe Secretary of tbe Navy to New York to do so. If a ship were carrying a minister or envoy to foreign ports and tbe captain was ordered to sail here or there as he might be directed by tbe minister, can it be questioned whether be was sailing under orders of tbe Navy Department? If one sends bis carriage to take out a sick friend and tells tbe driver to go wherever tbe friend may direct him, is not tbe driver still acting under tbe orders of bis own master? Tbe provision was probably placed in tbe statute to prevent a person being placed on sea-service pay by any authority lower than that of a Department.

But it can not be questioned, we think, that the claimant proceeded to New York and reported to tbe commanding officer of tbe St. Mary’s and did duty upon her, and was required to live on board and wear bis uniform at all times and perform tbe duties of an executive officer on board of a ship at sea by tbe express order of tbe Secretary of tbe Navy. Tbe service which be did perform, therefore, was sea service, and was performed by tbe direct order of tbe Secretary of tbe Navy.

Tbe service which tbe claimant performed for tbe State of New York was a distinct and different thing. As executive officer be was paid by tbe United States,- as instructor in tbe nautical school be was paid by tbe State of New York. Tbe duties did not conflict; they were permitted by tbe Secretary ■ of the Navy; it was doubtless understood by the Secretary of the Navy that they would be performed ; it was indeed probable that if the claimant had not been willing to perform them and thereby cooperate with the board of education he would not have been assigned to the ship; but payment for this additional service by the party which received it does not in any way relate to or affect the rate of pay at which the claimant should be paid by the United States.

The judgment of the court is that the claimant recover $780.25.  