
    RALSTON S. HOLMES v. THE UNITED STATES.
    [No. 31406.
    Decided December 1, 1913.]
    
      On the Proofs.
    
    An officer of more than five years’ service in tbe Navy served at sea under orders of tbe Navy Department from October % 1907, till and after July 4,1908, on tbe staff of a rear admiral of tbe lower nine, wbo was during that period in command of tbe second division of tbe Pacific Fleet. During this period tbe said officer received additional pay at tbe rate of $200 per year, as provided in tbe Navy pay act of May 13, 1908. 35 Stat. L., 198. On July 4, 1908, tbe rear admiral became one of tbe senior nine, and said officer continued said service as aid on bis staff. Subsequently it was decided that be was not entitled to additional pay as aid from May 13 to July 3,1908, and tbe amount of such pay for that portion of tbe time was charged to and deducted bom bis regular pay. To recover this additional pay this suit was brought.
    I. Where an officer of more than five years’ service in tbe Navy served at sea under competent orders as aid to a rear admiral of tbe lower nine, be is entitled to the additional compensation provided by tbe Navy pay act of May 13, 1908. 35 Stat. L., 198.
    II. Tbe decision announced in tbe case of Jones v. U. S., p. 16, ante, controls tbe present case and is here reaffirmed.
    
      The Reporter’s statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Ralston S. Holmes, served at sea under orders of the Navy Department from October 7, 1907, till and after July 4, 1908, as aid on the staff of Rear Admiral Uriel Sebree, who was during that period in command of the second division of the Pacific Fleet and a rear admiral of the lower nine. During all of this period said Holmes was a lieutenant of more than five years’ service in the Navy.
    II. While on duty as aid as aforesaid the claimant received additional pay at the rate of $200 a year for his services as aid, and continued to receive pay at that rate after July 4, 1908, upon which date Near Admiral Sebree became one of the senior nine. Subsequently, however, to wit, April 25, 1910, it was decided that he was not entitled to pay as aid from May 13 to July 3, 1908, and the amount of his pay for that portion of the time, amounting to $28.33, was charged to. and deducted from his regular pay subsequently accruing, so that for that portion of the time he has received no additional pay as aid. The amount of such pay at $150 a year allowed to an aid to a rear admiral embraced in the lower nine numbers is $21.25.
    
      Mr. Geo. A. King and Mr. Archibald King for the plaintiff, . King & King were on the brief.
    
      Mr. L. G. Bissell, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants. ' Mr. F. He 0. Faust was on the brief.
    The plaintiff’s contention is flatly opposed to the well-settled canon of statutory construction applied by the Supreme Court in affirming the judgment of this court in the case of Rodgers v. United States, 185 U. S., 87, 89; 36 C. Cls., 266, wherein the question involved was identical in principle with that at bar, namely, whether the special provision of section 7 of the Navy personnel act fixing the pay and allowances of rear admirals of the lower nine at that of brigadier generals of the Army was inconsistent with ‘and therefore repealed by the general provisions of section 13 of the same act prescribing a general rule for the salaries of all naval officers.
    Mr. Justice Brewer delivered the opinion of the court, and in reviewing the authorities quoted with approval the rule as announced by the Supreme Court of Michigan in Crane v. Reeder, 22 Mich., 322, 324:
    “Where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act or provision, especially when such general and special acts or provisions are contemporaneous, as the legislature is not to be presumed to have intended a conflict.”
    Applying this rule to the question at issue, Justice Brewer’s opinion proceeds:
    “In the light of this canon, how should these two sections be construed ? Section 7 in effect abolishes the rank of commodore, at least so far as respects the active list of the line of the Navy, and lifts those in that rank to, that of rear admiral. The attention of Congress was thus directed to such change, and the proper accompanying provisions in respect to salary and otherwise, and it declared that the lower nine rear admirals, they who were by the section lifted to that rank, should receive a particular salary. Clearly that was a special provision in respect to a matter to which the attention of Congress was at the time directed. If another statute had been passed at a subsequent or on the same day making general provisions for the salaries of naval officers, clearly the canon to which we have referred would apply. A fortiori, when the subsequent general provision is in the same statute it should be held applicable. So when, in section 13, Congress prescribed a general rule for the salaries of naval officers, such general rule can not within the scope of this canon be understood as repealing the special provision in the prior section, but the special provision must be taken as an exception to and limitation of the general rule.”
    Applying this canon to the sections of the act involved in this case, we think it clearly results that the general terms of the saving clause can not be understood as repealing or modifying the special provision in the prior act.
    Prior to the act of 1908 the aids to rear admirals received, by virtue of the assimilating clause of the personnel act, the same additional pay under the same conditions and restrictions as aids to officers of corresponding rank in the Army. Accordingly, it was held by the comptroller, 14 Comp., 438; 15 Comp., 723; case of E. B. Barry, Comp. Ms. Dec., Dec. 22, 1909, and decided by this court, Clifford H. West v. United States, No. 28717, that not more than three officers of the Navy, and they not holding a rank above that prescribed for Army aids, were entitled to additional compensation for such service.
   AteiNsoN, Judge,

delivered the opinion of the court:

The plaintiff herein is a lieutenant in the Navy and was detailed by proper orders to serve on the staff of a rear admiral embraced in the lower nine numbers of that grade from October 7, 1907, up to and subsequent to July 4, 1908, and was thereafter allowed additional pay for such extra service at the rate of $200 per year. However, the accounting officers of the Treasury Department thereafter ruled that officers of his rank rendering such special service were not included in the naval-pay act of May 13,1908, 35 Stats., 128, and consequently the amount of $28.33 theretofore paid to him from May 13 to July 4, 1908, was deducted from his regular pay which subsequently accrued, and to recover such deduction this suit was brought.

This case is controlled by the case of Jones v. United States, p. 16, ante. The only difference between the two cases is Jones was an aid to a rear admiral of the higher nine grade, whose pay under the act of May 13, 1908, supra, is fixed at $200 per annum for such extra service, while the plaintiff herein served on like duties as an aid to a rear admiral of the lower nine grade.

Following the decision in the case of Jones v. United States, supra, we decide that plaintiff should recover a judgment against the United States, based on an increase of salary at the rate of $150 per year, amounting to $21.25, as shown by the findings of fact.

It is so ordered.  