
    DAVID MOUAT v. THE UNITED STATES.
    [No. 14856.
    Decided May 9, 1887.]
    
      On the defendants’ Demurrer.
    
    The only question presented by the case is whether a paymaster’s clerk in the Navy is an officer within the meaning of the Act 30th June, 1876.
    I.The statutes recognize and provide for paymasters’ clerks in the Navy, but are silent as to the manner of appointment. (Rev. Stat., §§ 1386-1388.)
    II.Paymasters’ clerks are officers if not within the meaning of the Constitution certainly within the intent of the Act ZOth June, 1876 (19 Stat. L., 65), allowing mileage to officers traveling on public business.
    III.It is generally understood that the words “ officers and enlisted men ” include the whole personnel of the Navy; those who sign the shipping articles being regarded as enlisted men, and those who take the oath of office prescribed by Revised Statutes, § 1757, as officers.
    
      The Reporters’ statement of the case:
    The only allegation of the petition involved in the decision1 will be found stated in the opinion of the court.
    
      Mr. R. R. Dewees (with whom was Mr. Assistant Attorney-General Soward) for the demurrer :
    The question in this case is as to whether a paymaster’s-clerk is an officer in the Navy. The case of Hendee, lately decided by this court, is not conclusive on this point. It is decided in that case that a paymaster’s clerk is an officer of the Navy within the meaning of the Act of March 3, 1883 (22 Stat. L., 472, 473), known as the longevity pay act. But it is recognized in the opinion rendered that a paymaster’s clerk may be considered as an officer entitled to the benefits ox c> certain act of Congress, although technically he is not entitled to be so regarded.
    This is in accordance with the opinion of the court in the case of Rx parte Reed (100 U. S. R., 13). It was only necessary to determine whether a paymaster’s clerk was in the naval service. and the language used by the court in that case must be construed in its bearing upon the question at issue.
    There is a marked distinction between the description of the beneficiaries under the Longevity Pay Act of 1883 (22 Stat. L., 472, 473) and those entitled to mileage.
    In the longevity pay act “ all officers of the Navy shall be credited with the actual time they may have served as officers or enlisted men,” &c. As to such act it might be argued that the term used, viz, u all officers,” applies to all who are styled “ officers,” either under commission, warrant, or by appointment, as contradistinguished from “ enlisted men,” the object of the act being assumed to have been to embrace every one who served in any capacity in the Navy. On the other hand, the act of 1876 is a limiting statute, and was evidently enacted, with a directly opposite purpose, the intent there being to exclude all who are not officers of the Navy, in a technical sense, from the benefits of the act.
    Adopting this interpretation of the law, a paymaster’s clerk is, it is submitted, not such an officer as is referred to in the act of 1876 as being entitled to mileage.
    The appointment of an officer in the Pay Corps must by law be made by the President. The paymaster is the officer so appointed; the paymaster’s clerk is simply an employé to aid the paymaster in the discharge of his duties. His duties are to aid the individual paymaster by whom he is appointed. A clerk is allowed by law to the paymaster (Rev. Stat., §§ 1386, 1387, 1388) for his personal service.
    He is not an officer within the provisions of the Constitution. He is not appointed by the President, a court of law, or by the head of a Department.
    It is submitted that, under the plain and manifest interpretation of the law, only the commissioned and warrant officers are the “ officers of the Navy ” entitled to mileage.
    If the law should be regarded by the court of doubtful interpretation, then the interpretation given by the Treasury Department for a series of years is entitled to respect, and should control the interpretation given by the court, if not in direct conflict to the terms of the statute. In JPrerich’s Case (21 C. Cls. R., 161) the decisions upon this point are reviewed. In the Philbrick’s Case, lately decided by the Supreme Court, this-rule of interpretation is again affirmed.
    
      The case of Germaine (99 U. S. B., 508) is pertinent as to the point at issue. If the Commissioner of Pensions is not the head of a Department, with the more reason a paymaster in the Navy is not. The appointment of a paymaster’s clerk is approved by the commanding officer. The acceptance must be reported to the Navy Department, but no approval of the Secretary is necessary. A commanding officer may not withhold his approval except for good and sufficient reason, stated in writing and addressed to the paymaster. The power of discharge of such clerk is also in the paymaster, and, if approved by the commanding officer, is without appeal.
    In the case of JBx parte Reed, supra, as before stated, the question to be determined simply was as to whether a paymaster’s clerk was in the naval service so as to be subject to its discipline. So In re Bogart (2 Sawyer, O. Gis. B., 407) the court decided that a paymaster’s clerk is amenable to the criminal jurisdiction of the Navy. The decision in this case was rendered prior to the Navy Begulations of 1876, and is only important in the consideration of the- case at bar by reason of the expression, u He was an officer the same class as the paymaster himself,” &c. This was not at issue in the case, is mere obiter dicta, was not true prior to 1876, and is certainly not true now. A paymaster is a commissioned officer, appointed by the President and confirmed by the Senate; a paymaster’s clerk is neither a commissioned nor warrant officer.
    There is nothing in the duties of a paymaster’s clerk which requires any more knowledge in him of the parts Of a ship or naval details than would be required from any other passenger.
    He is only amenable to Navy discipline when on board a ship by reason of the necessities of the service. This is recognized in the Navy Begulations of 1878, paragraph 81 of chapter 29, which declares that no clerk employed by a pay officer on shore can be considered as attached to the Navy or subject to the Articles of War.
    
      Mr. Linden Kent opposed:
    The Begulations recognize the position of paymaster’s clerk as an office in the naval service and the person who fills it as an officer. The Acting Secretary of the Navy, as the head of a Department in this particular case, concurred in the appointment to the office.
    
      The power of appointment was duly exercised if there was anything to appoint to. (United States v. Hartwell, 6 Wall., 385.)
    The position of paymaster’s clerk comes within the definition. “The term (office) embraces the ideas of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occasional and temporary.” ' (United States v. Germaine, 99 U. S. B., 511.)
    The paymaster’s clerk receives a pension in case of total disability under the Act of March 3,1873 (Bev. Stat., § 4695), and the pension therein provided is fixed by. designation of the office and rank of the officer.
    In the case of Hxfarte Reed, (100 U. S. B., 13), who was a paymaster’s clerk and was court-martialed as such, as being in the naval service, Justice Swayne, speaking for the court, after enumerating the class of duties and rights in such cases, says: “If these officers are not in the naval service it may well be asked who are.”
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant alleges in his petition that on the 16th of November, 1885, he was appointed a paymaster’s clerk in the Navy; that he accepted the appointment November 19, 1885, took.the oath of office on the same day, and entered upon his duties, and that he traveled 1, 041 miles, under orders, for which he has not been'paid. He claims 8 cents a mile, under the provisions of the Act of June 30, 1876, chapter 159 (Supp. Bev. Stat., 218, 219, par. 1), allowing that rate for travel to “ such officers [of the Navy] while so engaged [on public business] in lieu of their actual expenses.”

The defendants demur, upon the ground that the claimant is not an officer, and so not entitled to the benefit of the act. That presents the only issue in the case.

The claimant was appointed by a paymaster, with the approval of his commanding officer, according to the Begulations, and his appointment was also approved by the Secretary of the Navy, and he took the required oath of office. This would be a valid appointment to office, within the meaning of the Constitution, if the position held by the claimant is an office and the Secretary of the Navy is authorized to make or approve such appointment. (United States v. Hartwell, 6 Wall., 393.)

statutes recognize and provide for paymasters’ clerks in the Navy, but are silent as to the manner of appointment (Rev. Stat., §§ 1386-1388); and Eevised Statutes, section 1410, classes them among' “ all officers not holding commissions or warrants, or who are not entitled to them,” by excepting them, with others, from such officers as are to be deemed petty officers.

Upon the authority of Moore’s Case (95 U.S. R., 760) it may be that the claimant should be held to be an officer in the constitutional sense of that term. Moore was called a “ passed assistant surgeon ” in the Medical Corps of the Navy. The statutes provided that the Medical Corps should consist of fifteen medical directors, fifteen medical inspectors, fifty surgeons, and one hundred assistant surgeons (Rev. Stat., § 1368), without mentioning passed assistant surgeons; that all appointments in the Medical Corps should be made with the advice and consent of the Senate (id., § 1369); that no person should be appointed surgeon until lie had served as an assistant surgeon two years, and had been examined and approved for such appointment, &c. (id., § 1371). It had been the custom of the Navy Department to examine assistant surgeons for promotion as surgeons after a certain period of service, and often long before vacancies occurred to which they could be appointed, and when so examined and passed and while waiting for promotion to the next grade, that of surgeon, upon the occurring of vacancies they were called “ passed assistant surgeons.” By that designation they were recognized in statutes fixing their pay and their rank, but no provision ivas made or their appointment.

Moore was an assistant surgeon who had successfully passed his examination for promotion to the grade of surgeon, and had been notified by the Secretary of the Navy that the report of the board of examiners was approved, and “from that date he would be regarded as a passed assistant surgeon.”

The Supreme Court held that “the place of passed assistant surgeon is an office, and the notification by the Secretary of the Navy was a valid appointment to it,” citing The United States v. Hartwell (6 Wall., 385), and the Constitution, Art. II, sec. 2.

The position of the claimant in the Navy would seem to be as well established by law as an office, and his appointment to it as constitutionally made, as the position and appointment of a passed assistant surgeon of the Navy.

In the present case, however, it is not necessary to go as far as the Supreme Court went in Moore’s Case, nor to determine the question whether or not paymasters’ clerks are officers within the meaning of the Constitution, hut only to find whether or not Congress intended to include them among officers of the-Navy to whom mileage is allowed by the act of 1876, even though they be so in a different sense from that in which the word is used in the Constitution.

In Hendee’s Case, recently decided (22 C. Cls. R., 134), we held that as paymasters’ clerks were often called and regarded as officers in some sense, in statutes, in Regulations of the Navy, in orders of the Secretary of the Navy, and injudicial decisions, as therein pointed out, they must be taken to be officers within the meaning of the Act of March 3, 1883, chapter 97 (22 Static, 473), requiring 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,” for the purpose of computing longevity pay, even though they might not be strictly and technically such within the meaning of the word as used in the Constitution with reference to appointments.

It seems to be generally understood that the words officers and enlisted men include the whole personnel of the Navy, regarding as enlisted men all those who sign articles of agreement, called “ shipping articles,’’ which paymasters’ clerks da not, and whose only required oath is that they make true statement of their age according to the best of their knowledge and belief (Regulations of 1876, ch. XXV, par. 3), and as officers, all others who take the oath of office prescribed by Revised Statutes, section 1757, to be taken by all persons elected or appointed to any office of honor or trust under the Government of the United States, as do paymasters’ clerks, as appears by copy of the claimant’s oath of office attached to his petition.

Section 1417 of the Revised Statutes defines who are enlisted men and limits their number; and paymasters’ clerks are not among them, while they are among those who take the oath of office.

On board ship, paymasters’ clerks are quartered and mess with officers, and are everywhere treated as such, whether at sea or on shore.

In United States v. Tinklepaugh (3 Blatch., 430, 431) it was held that a deputy marshal appointed by the marshal, wiihout the approval of higher authority, was an officer, because, as was said in the opinion of the court, “ the statute shows that Congress deemed deputies of the marshal to be officers of the United States.” The court in that case did not deem it necessary that a person should be appointed according to the provisions of the Constitution in order to constitute him an officer of the United States within the meaning of the statutes there referred to.

Under these circumstances, and those to which we referred in Sendee’s Case, we may well infer that in the passage of laws like that under consideration Congress used the word officers in its general, popular, and broad signification, rather than in its narrow and technical one, derived wholly from the operation of provisions of the Constitution in relation to certain appointments, and which as one of the distinctions in the meaning of the word has not yet found a place in the dictionaries.

At the argument both parties claimed that contemporaneous interpretations of the statute by the accounting officers of the Treasury supported their respective positions. So far as such interpretation is entitled to weight, we think, when considered on principle, that it is favorable to the claimant’s case.

It appears by the allegations of the petition, admitted by the demurrer, that ever since the passage of the act in 1876, paymasters’ clerks have uniformly been paid mileage while attached to sea-going vessels, and have not been so paid when engaged on shore duty. There is no warrant for such a distinction. It is purely arbitrary. The statute allows mileage to officers of the Navy when traveling on public business, and if paymasters’ clerks are officers in any sense, they are entitled to mileage for travel, whatever be the public duty in which they are engaged. Continuously paying them mileage when attached to sea-going vessels concedes that they are officers, and if that be admitted in the one case it cannot be denied in the other.

Under another act the accounting officers made a similar distinction, which the Supreme Court overruled. The act of March 3,1835, chapter 27, gave mileage at the rate of ten cents a mile to officers of the Navy while traveling under orders. For forty years the accounting officers had interpreted this as applying only to travel within the United States; while to officers traveling by sea or out of the country they allowed actual expenses and not mileage. The Supreme Court held that the statute made no such distinction, and that forty years’ practice of the Department did not and could not change the law. Their right to mileage when traveling under orders, by sea and by land, at home and abroad, was upheld by the court. (United States v. Temple, 105 U. S. R., 97; United States v. Graham, 110 id., 219.)

In our opinion Congress intended to include paymasters’ clerks among officers of the Navy to whom mileage is allowed by the act of 1876.

The demurrer is overruled and judgment will be entered for the claimant in the sum of $83.28, with leave to have the judgment set aside if the defendants elect within ten days to plead to the petition.

Nott, J., was not present when the case was decided.  