
    CALVIN BROWN v. THE UNITED STATES.
    [Nos. 16470, 20691.
    Decided April 19, 1897.]
    
      On the Proofs.
    
    The case is for longevity pay under the act 3d March, 1883; and the only question is whether a “ civil engineer in the Navy” was an officer in the Navy or in the Navy Department. Prior to the act 1867, civil engineers in the Navy were appointed by the Secretary; and their duties were shore duties, the superintendence and charge of buildings in navy-yards.
    I. The Acts March, 1867 (14 Stat. L., 490; Rev. Stat., § 1413), 15th July, 1870 (16 Stat. L., 321,330, § 3), 3d March, 1871 (16 id., 526,536), did not change the legal status of civil engineers in the Navy, but are a legislative recognition of civil engineers as officials who were and always had been in the naval and not in the civil service.
    
      II. Both tlie Navy Department and the accounting officers of the Treasury have uniformly held that civil engineers in the Navy are in the naval service.
    III. A civil engineer in the Navy prior to the Act 3d March, 1867 (Rev. Stat., § 1413), which provided that they should he appointed by the President, were officers, and were in the naval service within the intent of the Act 3d March, 1883 (22 Stat. L., 473), relating to longevity pay.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant was appointed, by the Secretary of the Navy, civil engineer at the navy-yard, Norfolk, Va., April 3, 1852, and served as such from that date until September 8,1864— twelve years, five months, five days — when he resigned.
    II. Under and pursuant to the provisions of the Act 2d March, 1.867 (Bev. Stat., § 1413), the claimant was appointed and commissioned by the President a civil engineer in the Navy on the 13th May, 1869. He served as such continuously until the 15th October, 1881, when he was retired and his name placed on the list of retired officers of the Navy, and he is still borne there as a retired officer.
    III. Prior to the act 2d March, 1867, the duties of civil engineers were defined by regulations of the Navy (see Regulations, 1865), and their duties did not differ in any respect from the duties required of civil engineers appointed subsequently to that statute. Those duties consist generally in supervising the erection and repair of buildings, docks, and wharves, and docks in navy-yards and of magazines or naval structures outside. They have the immediate supervision of the architect and of foremen and of the work confided to them; they must conform to instructions; they must prepare plans and estimates; they must report to the commandant of the navy-yard and inform him of the names and ratings of their employees; they must examine and certify to the correctness of bills and countersign requisitions for materials; they are held responsible for improper waste, and must keep accounts and see that expenditures do not exceed appropriations.
    IY. Until the rejection of this claim by the accounting officers in January, 1883, civil engineers in the Navy were uniformly regarded and treated by the Navy Department and the accounting officers of tbe Treasury a,s officers in or belonging to tbe Navy,- and tbe various statutes relating to them were so interpreted and construed. They were included and enumerated by tbe Secretary of tbe Navy in regulations “established and published for tbe government of all persons attached to the United States naval service” (Begulations, 1865), and in tbe computation of their longevity pay by tbe accounting officers they were credited with service rendered prior to March 2, 1867, and allowed longevity pay therefor.
    Y. Tbe claimant has been credited with bis time of service under his commission 13th May, 1869, and has received longevity pay therefor pursuant to the Act 15th July, 1870 (16 Stat. L., 331). He has not been credited with his time of service from April 3, 1852, until September 8, 1864, as set forth in finding i; nor has he received any of the benefits of the Longevity Pay Acts of 1882 and 1883 (22 Stat. L., 287, 473). If the claimant had been credited with service from April 3, 1852, until September 8, 3864, in the grade of civil engineer, there would have accrued to him up to December 24,1896, iu addition to the pay which he has received, the sum of $13,879.56. Credit for prior service under the Longevity Pay Act 5th August, 1882 (22 Stat. L., 287), was refused on the ground that be, “ while serving as a civil engineer prior to his present appointment, was not an officer of the Navy, and is, therefore, not entitled under the act of August 5, 1882, to any benefit for such service.”
    The original petition in this case was filed March 2,1889— i. e., within six years after the second Longevity Pay Act, March 3,1883. A supplemental petition was filed December 24,1896. In computing the amount of the judgment, credit is given for everything which accrued prior to March 2,1889, and subsequent to December 24, 1890, that being six years prior to the filing of the supplemental petition. For the interval between March 3, 1889, and December 24, 1890, which may be barred by the statute of limitations, the claimant waives his right of recovery, if any he has.
    And upon the foregoing findings of fact the court decides as a conclusion of law:
    That the claimant is entitled to recover judgment in the sum of $13,879.56.
    
      
      Mr. John Paul Jones and Mr. F. P. Dewees for the claimant:
    It is respectfully submitted that did there really exist any ambiguity as to the character of the service of civil engineers, which is not admitted, the continued and universal construction would be conclusive upon that point.
    ■It is further submitted that should such long-established ruling of the Departments be now declared to be without warrant of law many accounts would require revision, not only as applicable to civil engineers, but as to service of like character, notably that of naval constructors.
    If the question were to be presented anew, relieved from the prior adverse decision of the Department, with the interpretation given the act of 1883 by the courts, and a more careful consideration of previous rulings, a different conclusion would probably be reached. The basic principle of the act of 1883 is 'to give an officer in the Regular Navy credit for service.
    In giving that credit there is liberality of interpretation, both as to the character of the service and the nature of the position. For example, the service of a paymaster’s clerk in the Navy is that of an accountant; he is not appointed by the President or the head of a Department; he is not an officer provided for by the Constitution (Mouat Gase, 124 U. S., 303), yet as the act “was meant to include all men in service, either by enlistment or regular appointment,” he is entitled to the benefit of the provisions of the act of 1883. (Sendee’s Gase, 124 U. S., 309.)
    In Dunn’s Gase (21 O. Cls. E., 20; 120 U. S., 249) it was held that while the Marine Corps is no part of the Army or Navy proper, yet it is a service entitled to credit under the .provision of the Longevity Pay Act of 1883 (supra), and that an apprenticeship as a drummer of over ten years should be regarded as the service of an enlisted man.
    In Baler’s Case (23 O. Cls. R., 181; 125 U. S., 646), service as a “student” at Annapolis is held to be service of an officer of the Navy.
    Although by a strict construction of the act of 1883 it could be held to apply to only noncontinuous or irregular service, yet being found in instances to discriminate against continuous service, it was held that where there had been only one entry into the Navy the “first entry” should be regarded as the “last.” (Mullan’s Gase, 121 U. S., 186.)
    
      The rule of liberality of construction as to what constitutes service, and the position in which the service was rendered when applied to longevity service, is found not only in the numerous cases arising under the act of 1883 (supra), but is also applied to Army longevity statutes. In La Tourrette’s Case (151 U. S., 572), service as a post chaplain, appointed or elected, without commission, the chaplain not required to take an oath of office, his duty not of a military character (Digest Ops. Judge-Ad vocate-G-eneral Winthrop, 48, 49), is held to be such service in the Army as to entitle him to credit on his longevity pay account.
    Claimant is a retired officer of the Navy. He had actually rendered service in the Navy of the same character as that rendered by Sanger, Chandler, and Hastings prior to March 2, 1867. Their services being continuous were recognized. His service being noncontinuous was not recognized. The purpose of the act of 1883 was to give credit for noncontinuous or irregular service. Under the acts of 1882 and 1883 a retired officer as well as one on the active list is entitled to such credit. (BradMiry’s Case, 20 C. Gis. B.. 187.)
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Bodge) for the defendants:
    Prior to the act of March 2,1867, making appropriations for the naval service for the year ending June 30,1868, there was no mention made of civil engineers anywhere in the statutes in connection with the Navy or navy-yards, except in the Naval Appropriation Act of March 3,1863 (12 Stat. L., 818), in a proviso after an appropriation, which reads as follows:
    “For pay of superintendents, naval constructors, and all the. civil establishment of the several navy-yards and stations, one hundred and six thousand seven hundred and eighty-four dollars : Provided, That hereafter the salary of the civil engineer at the Washington Navy-Yard shall be two thousand dollars a year, and the salary of the civil engineer of the Bureau of Yards and Docks shall be three thousand dollars.
    Without this proviso, and varying in the amounts appropriated, this item “For pay of superintendent, naval constructors, and all the civil establishment at the several navy-yards” appears in every annual appropriation act for the naval service, as far back as I have examined the statutes, namely, in 5 Stat. L. (commencing at the year 1836), pp. 27,155, 232, 362, 398, 419, 500, 615, 699, 790; 9 Stat. L., pp. 97,169,266,374,513, and those contained in 10, 11, and 12 Stat. L.
    In each, of these appropriation acts the first item appropriated is:
    “For pay of commissioned, warrant, and petty officers, and seamen” (including “the Engineer Corps of the Navy” — after steam vessels were employed in the Navy).
    The appropriation acts above referred to provide for two classes of people, namely, the officers and enlisted men of the Navy, and the necessary, employees in the civil establishment at the various navy-yards and naval stations. The persons employed in the “civil establishment” were civilians, and it may be admitted that the superintendents and naval constructors were in a sense officers because of their annual recognition by Congress, and because they and other emjdoyees had sometimes fixed salaries and were once designated as “civil officers,” namely, in the appropriation Act of August 10, 1846 (9 Stat. L., 98, 99). But civil engineers were never recognized even as civil officers, but only as employees in the civil establishment under the implied authority of the annual appropriations for that establishment, until March 2,1867. (14 Stat. L., 490.)
    Naval constructors continued to belong to the civil establishment at the navy-yards as civil officers until the' Act of July 25, 1866, § 7 (14 Stat. L., 222) provided that they should be appointed by the President and confirmed by the Senate, and that when so appointed they should “ have naval rank and pay as officers of the Navy.” Thereafter naval constructors were not mentioned in the appropriations for the civil estab-lisment, and thus they became officers of the Navy.
    The Act of March 2,1867 (14 Stat. L., 490), is really the first that provides generally for civil engineers, but it expressly includes them in the civil establishment “ under the control of the Bureau of Yards and Docks,” and provides:
    “That civil engineers and naval storekeepers, when required at any of the navy-yards, shall be appointed by the President by and with the advice and consent of the Senate.” * * *
    No salary or tenure was' prescribed for these officers; both of these features of office were left to the discretion of the Chief of the Bureau of Yards and Docks, under the Secretary of the Navy; and, unlike the provision above cited creating tbe office of naval constructor, no rank in the Navy was given to these temporary officers. How, then, can it be maintained that claimant ever served as an officer or enlisted man in the Navy of the United States prior to May 13,1869? He was a civilian employee and not subject to the rules for the government of the Navy, and he probably retained that civil status during his alleged service as a naval officer.
   Nott, Ch. J.,

delivered the opinion of the court:

The confused condition of our statute law relating to the officers, warrant officers, petty officers, and seamen of the Navy may be best illustrated by the fact that a paymaster’s clerk was held to be an officer and was held not to be an officer by the same court, on the same day, and through the same judge. (United States v. Mouat, 124 U. S., 303; United States v. Hendee, ib., 309.) These decisions, of course, meant that a paymaster’s clerk was and was not an officer within the intent of certain statutes. The one decision related to mileage, the other to longevity pay. As to the former, it was held that a paymaster’s clerk is not an officer within the intent of a statute allowing mileage to officers in the Navy; as to the latter, that he is an officer within the intent of the Act March 3, 1883 (22 Stat. L., 473), which provides that “ all officers of the Navy 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 officers since last entering the service.”

The case now before us rests upon the same statute, and the question plainly stated is whether “ a civil engineer in the Navy” was as much an officer in the Navy as a paymaster’s clerk — whether this case comes within the decision of the Supreme Court in United States v. Hendee.

So far as the authority and character of the appointing power are involved in the question, civil engineers in the Navy, prior to the Act 2d March, 1867 (Rev. Stat., § 1413), were much more officers than paymasters’ clerks. The head of an Executive Department, the Secretary of the Navy, formally appointed them; but a paymaster’s clerk was appointed by a paymaster with, the approval of the commanding officer of the vessel. Both were employed by virtue of general appropriation acts; both were recognized and their duties defined more or less by the regulations of the Navy; the pay and tenure of office of neither were fixed by law.

As regards their being in the naval service, the case of the civil engineer is not so strong. On the one hand, the duties and responsibilities of a civil engineer in the Navy are and always have been much greater than those of a paymaster’s clerk. He was required to “make such suggestions to the commandant of the yard, in the line of his profession or duty, as he may consider advantageous to the interest of the service;” he had the “ superintendence and charge of the erection and repairs of all buildings in the yard;” he had the “superintendence and direction of the architect when one was employed;” he was held “ responsible for the proper distribution and employment of all materials;” he was required to keep “ an account of all materials and labor,” and report to the commandant of the yard. (Navy Regulations, 1865, § 15.) On the other hand, a paymaster’s clerk was required to submit to the laws and regulations for the government and discipline of the Navy; his acceptance and agreement to submit to such laws and regulations had to be given in writing and filed in the Department; he must take an oath and bind himself to serve until discharged; his discharge .must be by the appointing power, and approved in the same manner as his appointment; he was required to wear the uniform of the service; he had a fixed rank; he was upon the pay roll, and paid accordingly. (Ex parte Reed, 100 U. S., 13.) We are not aware that any of these indicia of naval as distinguished from civil service appeared in the duties and employment and official life of a civil engineer prior to the act of 1867.

But in the magnitude of the civil war the importance of the civil engineers in the Navy had grown with the growth of the Navy, and accordingly the Act 2d March, 1867 (14 Stat. L., 490; Rev. Stat., § 1413), enacted “that civil engineers and naval storekeepers, when required at any of the navy-yards, shall be appointed by the President, by and with the advice and consent of the Senate.” This fixed the status of civil engineers as officers. But the provision was a proviso to an appropriation act, and it was coupled immediately with the further provision, “ and the persons employed at the several navy-yards as master machinists, master carpenters, master joiners, master blacksmiths, master boiler makers, master sail-makers, master plumbers, and master painters, and master caulkers, shall be men skilled in their several duties and appointed from civil life.”

This statute manifestly left it questionable whether a civil engineer was an officer in the civil or the naval service— whether he was an officer in the Navy Department or in the Navy; that is to say, the statute left it uncertain whether an officer always employed on shore duty and in one of the occupations of civil life, the erection and superintendence of buildings, whose prescribed duties, indeed, precluded his ever rendering service on board of a ship, and who had no relative .rank assigned to him, could be deemed an officer in the Navy.

But the statute fixing “ the annual pay of the officers of the Navy on the active list,” the Act 15th July, 1870 (16 Stat. L., 321, 330, § 3), classed civil engineers with other naval officers — with admirals, commodores, captains, etc. It assigned to them three kinds of pay which belong to the naval and are unknown to the civil service, “duty” pay, “leave or waiting orders” pay, and “longevity” pay. The statute reorganizing the Navy, the Act 3d, March, 1871 (16 Stat. L., 526, 536), completed the enactments necessary for the determination of a civil engineer’s actual standing in the Navy by providing “ that the President of the United States is hereby authorized, in his discretion, to determine and fix the relative rank of civil engineers.”

These acts of Congress do not seem to the court to have been passed with the intention of changing the law — that is to say, of altering the legal status of civil engineers in the Navy — but rather to define and make certain their position in the Navy. In other words, the purpose of the statutes was not to transfer them from the civil service to the naval service, but to elevate and dignify the position in the naval service. In the opinion of the court these statutory provisions amount to a legislative recognition of civil engineers as officials who were and always had been in the Navy.

The executive branch of the Government has in like manner, interpreted the law and classified the service. In regulations “ established and published for the government of all persons attached, to the United States naval service” (Navy Regulations, 1865), civil engineers were enumerated and their duties rigorously defined, and they were thus classified by the Secretary of the Navy: “A rigid observance of these Regulations is required from all persons belonging to the Navy of the United States, and it is furthermore made their positive duty to report forthwith to the Secretary of the Navy any negligence, disobedience, or infraction thereof which may come to their knowledge.” After the act 15th July, 1870, they were uniformly credited with longevity pay for service rendered prior to the act 2d March, 1867, until the present controversy began. Both the Navy Department and the accounting officers of the Treasury consequently have agreed that whatever civil engineers were officially as appointees of the Secretary of the Navy, they at least belonged to the Navy. So far as the rulings of the accounting officers appear in the records of the Treasury Department now before the court, the rejection of the claimant’s application was the first decision that a civil engineer did not belong to the Navy.

The status of such an officer, the department or place to which he properly belongs, is something which can be much better determined by the legislative and executive branches of the Government than by the judicial. In view of the fact that the legislative and executive have uniformly given the same construction to the laws and the same classification to the service of the officer, we do not feel at liberty to hold otherwise.

The judgment of the court is that the claimant recover $13,879.56.  