
    HUGH T. NELSON v. THE UNITED STATES.
    [No. 24751.
    Decided January 29, 1906.]
    
      On the Proofs.
    
    The claimant is appointed assistant surgeon “ for temporary service ” in the Navy in January, 1003, under Revised Statutes, §1370. as amended by the act 4th May, 1808.’
    I. Under the Act 1¡th May, 1898 (30 Stat. L., p. 380) “ the President is hereby authorized to appoint for temporary service Iwenly-five acting assistant surgeons who shall have the relative ranJc and compensation of ‘assistant surgeons.'”
    
    II. Under the decision of this court in Taylor’s Case (38 O. Ols. R., 155) an assistant surgeon appointed “ for temporary service ” in the Navy under the preceding statutes is not entitled to the five years’ constructive service given to those oilicers in the Navy appointed from civil life by the Navy Personnel Act, Sil March, 1899 (30 Stat. L., p. 1005) as amended by the Act 7lh June, 1900 (31 Id., 007). The court now adheres in this case to that decision.
    III. The decision of this court in Tlwrber’s Gase (40 O. Ols. R., 480), where it was held that an assistant civil engineer was entitled to the credit of five years on entering the service, does not extend to an officer who enters the Navy merely for temporary service.
    
      The Reporters’ statement of tile case:
    Tlie following are the facts of the case as found by the court:
    I. On the 29th day of December, in the year 1902, the Navy Department issued the following circular:
    “ DEPARTMENT 03? THE NaVX,
    “ Bureau of Medicine and Surgert,
    “ Washington, D. G., December 89,190®.
    
    “Sir: The Secretary of the Navy, in order to meet the exigencies of the service, has authorized the appointment of 25 acting assistant surgeons for three years’ service, to have the same rank and pay as assistant surgeons in the regular service.
    “ The pay is aá follows:
    “At sea. $1,650.00 a year.
    “ On shore, with quarters.. . 1,402.50 “
    “On shore, without quarters. 1,690.50 “ “
    “ The age limit and professional examination for assistant surgeons in the regular service will be waived for applicants for appointment as acting assistant surgeons. They will be required to pass a physical examination and present satisfactory evidence to the examining board of their moral and professional standing and general fitness and aptitude for the service.
    “Acting assistant surgeons will be given an opportunity, if desired, of being examined professionally for appointment as assistant surgeon in the regular service, provided they are within the age limit (21 to 30 years).
    “ If you desire an appointment as an ’acting assistant surgeon for three years’ service, application should be made immediately to the Secretary of the Navy.
    “ Very respectfully,
    “ P. M. Rixex,
    “ Surgeon-General, U. S. Navy.” .
    
      The amount of pay stated in said circular is the pay fixed by section 1261 of the Kevised Statutes for a first lieutenant, not mounted, in the Army, $1,500 a year, with one longevity increase under section 1262, amounting to $150, owing to the five years’ constructive service allowed to officers appointed' from civil life by the navy personnel act, section 13, third proviso, aggregating $1,650 a year, reduced by 15 per cent when on shore, making $1,402.50. The amount added to the pay to make up the amount of $1,690.50 consists of the allowance of $288 a year for quarters, which for an officer of the relative rank of lieutenant in the Army are two rooms, the commutation of which is fixed by the acts of 1878, June 18, chapter 263, section 9, and 1879, June 23, chapter 35, paragraph 2, at $12 per room per month, making said $288 a year.
    II. After making application as provided in said circular and presenting satisfactory evidence of qualification as therein stated, the claimant, Hugh T. Nelson, Avas, on the 28th day of January, in the year 1903, appointed and commissioned an acting assistant surgeon in the Navy under the act of 1898, May 4, chapter 234, paragraph 4, last clause, and accepted the appointment and took the oath of office February 3, 1903.
    His commission is as follows:
    “ Theodore Roosevelt, President of the United States of America. To all who shall see these presents, greeting:
    “ Know ye, that reposing special trust and confidence in the patriotism, valour, fidelity, and abilities of Hugh T. Nelson, junior, I do appoint him an acting assistant surgeon in the Nar^y, with the rank of lieutenant, junior grade, from the 28th day of January, 1903, in the service of the United States. He is therefore carefully and diligently to discharge the duties of an acting assistant surgeon .by doing and performing all manner of things thereto belonging.
    “And I do strictly charge and require all officers, seamen and marines under his command to be obedient to his orders as an acting assistant surgeon. And he is to observe and folloAV such orders and directions from time to time as he shall receive from me; or the future President of the United States of America, or his superior officer set over him; according to the rules and discipline of the Navy.
    “ This commission to continue in force during the pleasure .of the President of tlie United States for the time being, or for a period of three years.
    “ Given under my hand at Washington, this twenty-ninth day of January, in the year of our Lord one thousand nine hundred and tAree and in the 127th year of the Independence of the United States.
    “ Theodoke Roosevelt.
    “ By the President.
    “ Chas. H. DaeliNG,
    
      “Acting Secretary of the Navy.'’’’
    
    III. The following is a copy of the claimant’s orders to duty, dated February 16,1903:
    “ Proceed to Sitka, Alaska, and. report to the senior officer present at that place for duty at the U. S. Marine Barracks as the relief of Surgeon Henry B. Fitts, U. S. Navy.
    “ This employment on shore duty is required by the public interests.”
    Pie left liis home February 18, 1903, and arrived at Sitka, Alaska, March 6,1903.
    He remained on the same duty at Sitka until the 7th day of July, in the year 1904, when under orders he left Sitka, and on the 13th day of July, 1904, arrived at Seattle, and has since been on duty within the United States.
    IV. The claimant was first paid from the ■ date of his acceptance of his appointment at the rates named in the circular quoted in finding n; that is, $1,402.50, and after his arrival at Sitka, Alaska, at the rate of $1,800 a year, being 'the $1,650 named in said circular as his pay at sea on the ground of being on shore duty beyond seas plus $150, being-10 per cent increase on grade pay for service beyond the States comprising the Union.
    He also received from the date of his arrival at Sitka commutation of quarters at the rate of $24 per month.
    Subsequently it' was decided by the Comptroller of the Treasxiry that he was only entitled to be paid at the rates fixed by section 1556 of the Revised Statutes for an assistant surgeon during the first five years after date of appointment, and that he was not entitled to anything for commutation of quarters. His pay was therefore checked until it was reduced so as to allow him only $1,000, as on waiting orders from the date of his acceptance of appointment to February 17, 1903, and thereafter while en route to Sitka and at Sitka $1,400, as shore-duty pay. AH amounts which had been paid him for commutation of quarters were also checked against him.
    If he is entitled to army mounted rates of pay with 10 per cent additional for five years’ constructive service under section 13 of the personnel act, together with 10 per cent increase for service beyond the limits of the States comprising the Union while on duty in Alaska, as would be received by an assistant surgeon of similar length of service, he will be entitled to $758.26 more pay than he has already received.
    If also entitled to commutation of quarters while at Sitka, the same as an assistant surgeon in the Navy of similar length of service, he is entitled to $385.60; total pay and commutation of quarters, $1,143.86.
    V. Before the date of the decision of this court in the case of R. Roller Richardson v. The United States (38 C. Cls. B.., 182), January 5, 1903, assistant surgeons in the Navy received only the pay of an officer of corresponding rank in the Army “ not mounted.” By that decision it was 'held that they are entitled to the pay of such an officer “mounted.” This decision was not appealed from, and has been accepted as the proper interpretation of the law. It has been applied by ruling of the Comptroller of the Treasury to passed assistant surgeons.
    All officers of the Medical Corps in grades for which there is in the- Army pay table a distinction between “ mounted ” and “ not mounted ” pay have ever since been paid at mounted rates of pay for their service from the date the personnel act took effect, July 1,1899, to the present time.
    
      Messrs. George A. and Wm. B. King for claimants.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Pradt) for defendants.
   Peblle, Ch. J.,

delivered the opinion of the court:

In January, 1903, the claimant was appointed for temporary service in the United States Navy under Revised Statutes, section 1370, as amended by the act of May 4, 1898 (30 Stats. L., 380), which, among other things, provides: “ The President is hereby authorized to appoint for temporary service twenty-five acting assistant surgeons who shall have the relative rank and conqpensation of assistant surgeons.”

Under that appointment the claimant became entitled to and was paid the rate provided for by Revised Statutes, section 1556, for assistant surgeons in the Navy during the first five years after date of appointment.

The claimant contends, notwithstanding he was appointed for temporary service, that he is entitled to be credited on the date of his appointment with five years’ constructive service under the provisions of section 13 of the act of March 3, 1899, known as the navy personnel act (30 Stat. L., 1005), as amended by the act of June 7, 1900 (31 Stat. L., 697), the first of which acts assimilates the pay of officers of the line and of the medical and pay corps of the Navy to officers of corresponding rank in the Army and provides for five years’ constructive service to those appointed from civil life. The amendatory act of June 7 provides, in effect, that if by said section 13 the pay of such officers would be reduced, then and. in that case they shall be paid the rates of pay in force prior to the passage of said act of 1899.

The question here was involved in the Taylor case (38 C. Cls. R., 155), and the ruling in that case was against the claimant on the ground that the act of March 3, 1899, had no application to officers of the Navy in the temporary service, and that therefore the claimant was not entitled to credit for the constructive service therein provided for. We see no reason to change the ruling in that case or the reasoning by which that ruling was reached.

The claimant also cites and apparently relies on the case of Thurber (40 C. Cls. R., 489), wherein the claimant was appointed an assistant civil engineer under the naval appropriation act of March 3, 1903 (32 Stat. L., 1177-1197).

The provision of the act referred to provides for the increase of the active list of the Navy in certain grades, while section 7 of the jxersonnel act provides what officers shall compose “ tile active list of the line of the Navy,” among which the claimant was by said act of March 3, 1903, included, he having been appointed from civil life under that act as an assistant civil engineer with the rank of lieutenant, junior grade, and was therefore appointed in the Kegular Navy.

The question in that case was whether the claimant was entitled under the 'third proviso to said section 13 to be credited with five years’ constructive service. That proviso, so far as material here, is that “ all officers, including warrant officers, who have been or may be appointed to the Navy from civil life shall, on the date of appointment, be credited, for computing their pay, with five years’ service.”

Prior to the claimant’s appointment in that case the Secretary of the Navy had issued a circular wherein, in conformity with the provisions of said section 13, he designated the pay an assistant civil engineer would be entitled to upon entering the service, and in respect thereto the court said:

“ The services of the claimant were enlisted after the promulgation of this construction of the act, and no doubt-under the belief that its terms would be fully complied with. While we entertain some doubt as to the correctness of this ruling, we are inclined to follow the construction so given by the Navy Department.”

The doubt expressed in that case was because the act authorizing the appointment 'of assistant surgeons in the regular Navy fixed their salary “ during the first five years after date of appointment ” at one thousand five hundred dollars, etc. That act being- subsequent to the navy personnel act, the question was whether it did not operate to repeal the proviso to section 13 of said navy personnel act giving to such officers appointed from civil life credit for five years’ constructive service. But as the claimant' in that case had been appointed in the regular Navy and the Secretary of the Navy in his circular had construed the provision of the navy personnel act as applicable to such officers, Ave concluded to follow him but expressed our doubt as to the correctness of his ruling.

In the present case the claimant >vas appointed for tern-porary service, and the circular issued by direction of the Secretary of the Navy, set out in finding i, shows that fact— that is, to meet the exigencies of the service the Secretary had authorized the “ appointment of twenty-five acting assistant surgeons for three years’ service.”

We have examined with great care the able and somewhat persuasive brief of the claimant’s counsel and the various authorities cited therein, but as the claimant’s right to recover depends upon whether on the date of his appointment he is entitled under the navy personnel act to credit for five years’ constructive service, and as we hold that the Taylor case applies, we deem it unnecessary to pursue the case further, and the petition is dismissed.  