
    ALBERT A. HOOPER v. THE UNITED STATES.
    
    [No. 33841.
    Decided January 7, 1918.]
    
      On the Proofs.
    
    
      Navy pay; statutory construction; Naval promotions pursuant to law.- — Plaintiff, a machinist of the Navy, became eligible for promotion to the grade of chief machinist in December, 1912, and in February, 1913, a naval examining board reported said machinist qualified for promotion; owing to unfavorable reports as to fitness the Department recommended and the President directed in April, 1913, that final action on the recommendation be suspended for one year; in October, 1914, plaintiff was reexamined by a board of medical examiners and found suffering from neurasthenia contracted in line of duty and thereby incapacitated for service, and was not recommended for promotion; the President approved this board’s report; subsequently plaintiff was examined by a naval retiring board and found temporarily incapacitated for active service by reason of neurasthenia, and recommendation was made that he he granted three months sick leave; this recommendation was approved by the President January 2, 1915; in June, 1915, plaintiff was again examined by a naval retiring board and found not incapacitated for active duty, and the President approved this report; in September, 1915, plaintiff being again examined for promotion was found physically qualified, and in November following the naval board' reported him as mentally and morally but ncft professionally qualified, and did not recommend him for promotion; in December, 1915, the President approved this report and directed that plaintiff be suspended from promotion for a period of six months; in July, 1916, plaintiff being examined by a board of medical examiners was found physically incapacitated for duty and recommended that he be reexamined physically in six months; presidential action was not had on this report; in January, 1917, on being reexamined by medical and examining hoards plaintiff was found and reported qualified for promotion, and in March of that year the Secretary of the Navy submitted these reports to the President with the recommendation that they be approved; they were approved by the President, and on April • 30, 1917, plaintiff was appointed chief machinist in the Navy to rank with but after ensign from June 27, 1913; plaintiff was paid as a machinist to January 29, 1917, and sues to recover the difference in pay of a machinist and a chief machinist in the Navy from June 27, 1913, the date of rank stated in his commission.
    
      Held, that under Section 1493 R. S., and Section 1505 R. S., as amended by the act of March 11, 1912, 37 Stat., 73, the act of June 18, 1878, 20 Stat., 165, and the act of March 4, 1913, 37 Stat., 892, plaintiff was not promoted in grade or rank pursuant to law, and is illegally in the service. (Downes’ case, 52 C. Cls., 237, Toulon’s case, 51 C. Ols., 87; 52 0. Ols., 333; Orapo’s case, 50 O. Ols., 337, reaffirmed.)
    
      Admissions. — An admission by Government counsel of the Government’s liability is not controlling on this court.
    Campbell, Ch. J., and Barney and Downey, JJ., specially concurring.
    
      The Reporter's statement of the case:
    
      Mr. George A. King for the plaintiff. King c& King were on the briefs.
    The claimant became eligible for promotion from the warrant office of machinist to the commissioned grade of chief machinist at the expiration of six years’ service, December 27, 1912. He was examined for promotion February 15, 1913, by a board of medical examiners and on February 19, 1913, by a naval examining board, and found and reported qualified for promotion by both of these boards. These were unqualified findings in his favor by the two boards required for that purpose by Revised Statutes,' sections 1493,1496. If the usual and regular course followed in ninety-nine cases out of a hundred in the Navy had been pursued in his case, he would immediately have been commissioned from December 27, 1912, the date when he became eligible for promotion, and would have been paid accordingly. These reports of boards, however, require the approval of the President.
    The power of the President to resort to any proper source of further information before taking final action upon favorable reports of examining boards for promotion is clearly stated in Jouett v. United States, 28 C. Cls., 257, 266:
    “ Having the duty imposed upon him to approve or disapprove, the President had the power to suspend action or to seek further information; these are necessary incidents of the executive reviewing power.”
    The consequence of a final favorable action by the President is thus stated, p. 267:
    “After such action, then, under section 1562, so far as pay is concerned, the promotion would relate back to the date when ‘he would have been entitled to it had he been examined and found qualified at the time so required by law or regulation.’ ”
    If this was so in 1886 when the Jouett case arose, how much more must it be now when the existing statute is so much more liberal and unequivocal in entitling an officer to be paid from the date stated in his commission?
    The action of the President was therefore a lawful exercise of unquestionable power.
    Unusual action was, however, taken. The department recommended and the President ordered, in view of some unfavorable reports of fitness found in his official record, that final action be suspended for a period of one year.
    The executive'action in question did not decide that the claimant was either fit or unfit to hold the office of chief machinist. It implied a doubt on that subject. An opportunity was afforded claimant to remove that doubt. The opportunity could have been given him either at once, or in three months, six months, or a year. The President directed that it should be a year. As a matter of fact it was about a year and a half before an opportunity was given him.
    It appears there was but a single failure on professional examination for promotion. All delays and orders for reexamination in this case were matters in the discretion of the executive authority, matters with which a court can have nothing to do. The only question is what was their legal effect on his pay. The court has said in the Downes case, 52 C. Cls., 248, that the only power which the court has to go behind the date of a commission is to inquire whether any positive law has been ignored in fixing the date of rank in the commission. In ToulorOs case, 51 C. Cls., 87; 52 C. Cls., 333, it was held that after an officer had once failed on his examination for promotion, and then passed on his second examination, the penalty to which he should be subjected is loss of six months from the date when he first became entitled to take rank.
    The latter case is a controlling authority in the present. It holds that the only penalty to which an officer who fails on his first professional examination can be subjected, after successfully passing a second examination, is that his date of rank is to be six months later than it otherwise would have been.
    
      Mr. Richard, P. Whiteley, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
    
      
       See also post, p. 370.
    
   Hat, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

This is a suit brought by an officer of the Navy to recover the difference in pay of a machinist and a chief machinist in the Navy, the claim being based upon the act of March 4, 1913, 37 Stats., 892, which provides as follows:

“ That all officers of the Navy who, since the third day of March, eighteen hundred and ninety-nine, have been advanced or may hereafter be advanced in grade or rank pursuant to law shall be allowed the pay and allowances of the higher grade or rank from the dates stated in their commissions.”

The amount claimed is $720.35. The question involved is, Was the plaintiff advanced in grade or rank “pursuant to law ” ?

The facts are that the plaintiff was appointed a warrant machinist in the Navy, the title of which office was subsequently changed to machinist in the Navy; that he served as such for the period of six years, at the expiration of which term of years he on the 27th day of December, 1912, became eligible for promotion to the commissioned grade of chief machinist in the Navy. On February 15, 1913, he was examined by a board of medical examiners, and on February 19, 1913, by a naval examining board, and found and reported qualified for promotion by said examining boards. In view, however, of the unfavorable reports of fitness in his case, the department recommended, and the President directed, on April 29, 1913, that final action on the findings and recommendations of the boards be suspended for the period of one year, at the expiration of which time he would again be examined.

Thereafter, on October 31, 1914, more than 18 months after his first examination, he was examined by a board of medical examiners and was found incapacitated for service. On December 21,1914, the plaintiff was again examined by a naval retiring board, and found temporarily incapacitated for service, and the board recommended that he be granted sick leave for three months. On June 12,1915, he was again examined by a nayal retiring board, and found not incapacitated for service. On September 15, 1915, the plaintiff was again examined, preliminary to promotion, and found physically qualified, but under date of November 17, 1915, the naval examining board in his case found and reported him mentally and morally, but not professionally, qualified and did not recommend him for promotion. The President approved the records in the case on December 1, 1915, and directed that the plaintiff be suspended from promotion for a period of six months. On July 7, 1916, the plaintiff was again examined by a board of medical examiners, which board found and reported him physically incapacitated for duty, and recommended that he be examined again in six months. No action was taken by the President on the record in this case.

Finally, on January 22, 1917, the plaintiff was again examined by a board of medical examiners, and this board found and reported him physically qualified to perform all his duties at sea, and recommended him for promotion. On January 30, 1917, the Naval Examining Board in his case found and reported him mentally, morally, and professionally qualified for promotion, and recommended that he be promoted. On April 5, 1917, the findings and recommendations of the last-mentioned boards were approved by the President, and a commission was issued to the plaintiff dated June 27,1913.

It will be seen from the above facts that the plaintiff was first given an examination for promotion on February 15 and 19, 1913; that the boards by which he was examined found and reported him qualified for promotion, but that the department “in view of the unfavorable reports of fitness in his case ” recommended and the President directed that final action on the findings and recommendations of the boards be suspended for the period of one year, at the expiration of which time he would be examined again. It does not appear from the record whether the unfavorable reports of fitness referred to professional or physical unfitness; and for a proper determination of the case it makes no difference to which they referred.

If he was physically unfit, and the President for that reason suspended for a period of one year the findings and recommendations of the boards, and directed him to be examined again at the end of that period, then the plaintiff could not have been promoted in pursuance of law at the time he was examined, nor until he became physically qualified, section 1493 of the Revised Statutes providing that: “ No officer shall be promoted to a higher grade on the active list of the Navy, except in the case provided in the next section, until he has been examined by a board of naval surgeons and pronounced physically qualified to perform all his duties at sea.” (The next section referred to in this section has no bearing upon this case.) It appears that the plaintiff was examined by a board of naval surgeons on two occasions after his first examination, to wit, on October 31, 1914, and on December 21, 1914, and found physically disqualified. It thus appears that up to December 21, 1914, he could not have been promoted under the provisions of the law above cited, and that he can not be allowed “ the pay and allowances of the higher rank or grade,” as he was not advanced to that rank or grade in pursuance of law. The mere fact that his commission was dated June 27, 1913, can not control the pay and allowances to be received by him, for if it did it would then be in the power of the executive branch of the Government to nullify an act of Congress by arbitrarily writing a date in a commission, although that, commission was not issued in pursuance of law. It may be said that “the unfavorable reports of fitness” in the case of the plaintiff in his first examination in Februarj1', 1913, referred to professional fitness, and that because he was not professionally fit it was directed that final action on the findings of the board was suspended for one year, and that at the expiration of that period he would be examined again. There is no statute authorizing suspension of promotion for one year, but section 1505 of the Revised Statutes, as amended by the act of March 11,1912, 37 Stats., 73, provides as follows:

“ Any officer of the Navy on the active list below the grade of commander, who, upon examination for promotion is not found professionally qualified, shall be suspended from promotion for a period of six months from the date of approval of said examination and shall suffer a loss of numbers equal to the average six months’ rate of promotion to the grade for which said officer is undergoing examination during the five fiscal years next preceding the date of approval of said examination, and upon the termination of said suspension from promotion he shall be reexamined, and in case of his failure upon such examination he shall be dropped from the service with not more than one year’s pay.”

It thus appears that it was not in the power of the President to suspend the promotion of the plaintiff beyond the six months provided for in the statute; but it also appears that the plaintiff was physically disqualified down to June 12, 1915, and that the report of the board declaring him physically qualified was approved by the President on July 19, 1915. Pie could not, therefore, come up for the reexamination provided for in the above-cited statute until that date. Soon thereafter, on September 15, 1915, he was reexamined for promotion and found physically qualified, and on November 17, 1915, the naval examining board found and reported him mentally and morally but not professionally qualified and did not recommend him for promotion. On December 1, 1915, the President approved the records in the case and directed that he be suspended from promotion for a period of six months. If he failed professionally on his first examination and failed again on his reexamination, he is illegally in the service and certainly can not now ask for the pay of an office to which he is not entitled. So whether he was physically or professionally unfit in his first examination he has no standing in this court.

It further appears that he was examined on July 7, 1916, by a board of medical examiners and found physically incapacitated for duty. Being again examined by boards on January 22,1917, and January 30,1917, he was at last found qualified in all respects for promotion, and was promoted and his commission dated June 27, 1913. The recital of the facts in this case show clearly that the plaintiff is not entitled as chief machinist to pay and allowances from June 27, 1913, notwithstanding the date in his commission, for he was not advanced to that grade in pursuance of law.

Counsel for the plaintiff in their brief cite the cases of Downes v. United States, 52 C. Cls., 248, and Toulon v. United States, 51 C. Cls., 87; 52 C. Cls., 333, and claim that the plaintiff under these decisions is entitled to a judgment for his pay from the date stated in his commission. An examination of these cases will show that they are not on all fours with this case. In the Downes case the court said, Campbell, Chief Justice, speaking for the court:

The court has not held, and does not now hold, that said act [the act of Mar. 4, 1913] authorizes the fixing of a date in the commission from which, the rank begins which is controlling on the court regardless of whether the promotion was made pursuant to law or not.”

The very question to be decided in this case is whether or not the promotion was made pursuant to law, and the facts show that it was not. It was also said in that case:

Where he [the officer] is advanced or promoted contrary to law, if such a case is supposable, or where the period of suspension required by section 1505, for instance, is overlooked or disregarded, he can not be said to have been advanced pursuant to law; and in such case he can not be entitled to the pay and allowances of the last higher grade from the date stated in his commission.”

This statement is peculiarly applicable to this case and covers it like a blanket.

It is further stated in the opinion in the Downes case:

“ In other words, speaking generally, when asked to apply the act of March 4, 1913, we may inquire whether the officer is advanced in grade or rank pursuant to law.”

This is what we have done in this case, and it is established from the facts that the plaintiff was not advanced in grade or rank pursuant to law.

This case, in all its features, is so different from the Tou-lon and Downes cases above cited, that it is useless to discuss those cases here.

Defendant’s counsel concedes the correctness of petitioner’s proposed findings of fact, but refers to the Treasury - report on file. That report being all the evidence in the case, our findings of fact are based thereon. The statement in defendant’s brief as to the effect of the Toulon and Downes cases is not sustained by those cases; and admissions of counsel are not controlling. Jones & Laughlin v. United States, 42 C. Cls., 178.

For the foregoing reasons the petition in this case must be dismissed, and it is so ordered.

DowNey, Judge,

concurring:

That the plaintiff is not entitled to recover the pay and allowances of a chief machinist “ from the date stated in his commission ” seems to me so evident as almost to preclude necessity for discussion. Whether another date antecedent to the date of his appointment might have been stated from which he would have been entitled to the pay of the higher rank is not for consideration. As said in the Toulon case, this court can not change the commission and “ as he can not recover from the date stated in his commission he can not recover at all.”

It has been pointed out in another opinion and is conclusive that recovery can not bo had under the Toulon case, if this case were otherwise within the rule of that case, because such a conclusion must ignore other positive provisions of the law. And this case is certainly not the Downes case, a case which would be subject to serious criticism if it assumed to establish the rule that a promotion to a higher grade in violation of section 1493 was an advancement in grade or rank pursuant to law. • That case was peculiarly a case unto itself. The action taken by the President in that case was not with the report of the examining surgeons alone before him but there was also before him the recommendation of the Bureau of Medicine and Surgery submitted therewith, and his action is easily to be construed not so much, if at all, an approval of the finding of physical incapacity as an approval of the recommendation that the officer be ordered to a hospital for an operation to remove a trouble incurred in the service after which he was to be examined as to his fitness for promotion to a vacancy to be held open for him.

This action involved a large element of simple justice and the court held that the construction put on the action of the Executive was a reasonable one and that the giving of an opportunity for treatment for a temporary physical disability to be followed by a reexamination was an action not properly reviewable by this court and not necessarily in violation of any provision of law. The court might with much reason have gone further and said that the approval of the President was an approval only of the recommendation of the Bureau of Medicine and Surgery and that the examination to be had thereafter was not another and distinct examination, but rather a continuation or completion of the original examination. But however that may be, it certainly appears that the case was predicated on its own peculiar facts and, as said bv the Chief Justice in his opinion herein, these cases “ must largely depend on the facts of the particular case.” This plaintiff has no such standing before the court as Downes had, he can not claim recovery under the Toulon case or, for that matter, under any other decision of this court and his promotion as of the date stated from which he seeks recovery was not only not pursuant to law but was clearly contrary to law. I concur in what has been said by my associates, without repetition, and in the conclusion reached.

BarNey, Judge,

concurring:

The plaintiff failed but once in his professional examination and that was the examination of November 17, 1915, and for such failure he was charged six months’ suspension by the President of the date when his rank was to begin.

The sole question for decision in this case is whether the act of March 14, 1913, 37 Stat., 892, gave the Executive authority to give the plaintiff in his new commission rank from June 27, 1913. That statute is as follows:

“ That all officers of the Navy who, since the third day of March, eighteen hundred ninety-nine, have been advanced or who may hereafter be advanced in grade or rank pursuant to law shall be allowed the pay and allowances of the higher grade or rank from the dates stated in their commissions.”

This court decided in the Toulon case, 51 C. Cls., 87, that under section 1505 of the Revised Statutes, as amended by the act of March 11, 1912, 37 Stat., 73, when a candidate up for promotion failed professionally, if he passed on his final examination he was to be charged with a period of six months’ suspension provided by that statute. That is, that he would not be deemed advanced“ pursuant to law ” under the latter statute without being so charged. As before stated, the plaintiff in this case was deferred from rank as chief machinist for six months, presumably by reason of having failed once professionally on an examination, but was not deferred from rank on advance on account of physical disability. In this connection we cite section 1493 of the Revised Statutes, which is as follows:

“No officer shall be promoted to a higher grade on the active list of the Navy, except in the case provided in the next section, until he has been examined by a board of naval surgeons and pronounced physically qualified to perform all his duties at sea.”

While this court decided that section 1505 of the Revised Statutes as amended actually suspended the candidate for promotion for the period of six months, section 1493, it will be seen, suspends him from promotion automatically during the period that he is not qualified for service at sea, which of course is during the time he is physically disqualified for promotion. Thus, construing section 1493, section 1505 as amended, and the act of March 4,1913, together the plaintiff was automatically (by sec. 1493) and actually by law (act of Mar. 4, 1913) suspended from promotion during the whole period extending from the completion of his six years’ service as machinist (Dec. 29, 1912) to a date six months after his failure on examination professionally, which would bring that time to June 16, 1916, beyond which his rank could not be extended. During the whole period of the service of the plaintiff in the Navy, as appears from the record, the date last mentioned is the earliest date at which he is entitled to promotion and, under the doctrine of the Toulon case, which I think sound, he could not take rank as chief machinist sooner.

Campbell, Chief Justice,

concurring:

I concur in Judge Hay’s opinion, but because of the contention made in this case that former decisions authorize a recovery I think it proper to state my views of the case more at length.

The plaintiff rests his case upon the Toulon and Downes cases, and the defendants’ counsel seems also to admit a right of recovery because of said cases. The case must be determined, however, upon the facts developed in it.

Section 1493 of the Revised Statutes forbids promotion to a higher grade on the active list of the Navy (except in a case not material here) until the officer has been examined by a board of naval surgeons and pronounced physically “ qualified to perform all his duties at sea.” Section 1496 requires an examination as to mental, moral, and professional fitness by a board of examining officers appointed by the President. Other sections (1498 et seq.) provide for the examining board, its powers, a record of the examination, and a revision by the President. Section 1502 provides that any matter on the files and records of the Navy Department touching each case which may be, in the opinion of the board, “necessary to assist them in making up their judgment, shall, together with the whole record and finding, be presented to the President for his approval or disapproval of the finding.” The form of recommendation by the examining board is prescribed by section 1504. Section 1505 as amended by the act of May 11, 1912, 87 Stats., 73, requires a suspension from promotion for a period of six months from the date of the approval of the examination where the officer has failed professionally in his examination. Toulon’s case, 51 C. Cls., 87. The act of June 18, 1878, 20 Stats., 165, provides that in the examination of officers in the Navy for promotion no fact which occurred prior to the last examination of the candidate whereby he was promoted, which has been inquired into and decided upon, shall be again inquired into, but such previous examination if approved shall be conclusive unless such fact continuing shows the unfitness of the officer to perform all of his duties at sea, and also authorizes the President in cases wherein the rule prescribed by this act has been violated to order and direct a reexamination.

It thus appears that no officer can be promoted until his • physical fitness to discharge “ all his duties at sea ” has been favorably passed upon by a board and the board’s action has the approval of the President, and similarly that there must be an approval of an examination to ascertain professional fitness. A noticeable difference between section 1493, referring to physical disabilities, and section 1505 as amended, referring to professional disqualifications, is that where an officer fails to qualify professionally it is required that he shall be suspended for a period of six months and lose certain numbers, when he may be again examined, whereas the statute requiring physical examination does not specifically direct the course to be taken upon his failure to qualify therein. It is, however, provided by section 1447 and section 1448 that officers may be placed on the retired list under certain conditions who have failed in their examinations for promotion. Section 1505 as amended requires that the officer be dropped from the service upon his failure the second time in his professional examination, but section 1498 does not in terms, at least, provide for dropping the officer from the service, and the other statutes mentioned seems to authorize his retention in the grade to which he is attached until action by a retiring board is had. The action of the retiring board must be submitted to the President for his approval or disapproval “ or orders in the case.” — Section 11¡5?j.

In the Downes case, 52 C. Cls., 237, it appeared that there was an adverse report upon his physical examination, but also a recommendation by a medical board that he be given treatment. The President approved the report of the medical board and suspended action on the other report awaiting the result of the treatment. We reached the conclusion in that case that the action of the President was not contrary to law, because section 1493 does not prescribe a course to be taken upon an adverse report by the examining board until the President shall have approved or disapproved the same. Section 1502, as has been stated, requires a submission to the President along with the report of the board of the files and records of the Navy Department bearing on the case, and manifestly these may be considered by the President in taking action upon the report.

Attention is called to the statutes above mentioned to show the difference between the instant case and the other cases we have had under consideration.

In the Toulon case, supra, the court was called upon to consider section 1505 of the Revised Statutes as amended because Toulon had failed in his first professional examination and passed his second examination. He did not fail physically at all. If he had failed in his second professional examination the statute prescribes the course that would have to be taken in his case. Section 1493 of the Revised Statutes had no bearing on Toulon’s case. Similarly section 1505 as amended had no bearing on Downes’s case. Downes did not pass successfully his physical examination, but no action was taken on the report by the President, who, acting upon the recommendation of the Secretary of the Navy, suspended action on the examining board’s report in order that the officer might take treatment for an ascertained tern-porary disability. He took the treatment and in a few months after his first examination he passed successfully both physical and professional examinations and was promoted. The vacancy to which he was eligible had been kept open all the time. The court recognized that under the facts presented in that case the exercise of some discretion on the part of those in authority to do what seemed so eminently just in that case should not be held to be a disregard of the law or that there was a promotion contrary to law.

The facts of the present case are materially different from the facts in the Downes case. While recognizing, as has been stated, the right of the administrative officers to afford an opportunity to an officer when examined for physical qualifications to have a reasonable opportunity to get relief from an ascertained temporary physical disability the court did not hold, nor indeed under the law could it hold, that there was any right to postpone indefinitely and without any limit the opportunities which could be afforded for a correction of ascertained disabilities when a question arises as to the legality of promotion to a higher rank from a stated date.

It will tend to clarify the principle applicable in this class of cases if it be borne in mind that what the act of March 4, 1913, 37 Stats., 892, provides for is payment for a constructive service. When an officer is promoted he can not be paid for actual service until he has been appointed and executes the oath of office. That being done he enters upon an actual service in the grade to which he is promoted. The statute recognizes that the date of rank stated in his commission may be prior to the time of his entry upon this actual service and authorizes certain pay and allowances from the date stated in the commission where he shall have been promoted pursuant to law. Toulon's case, supra, and Downes's ease, supra.

The plaintiff here is seeking to recover pay and allowances as for constructive service. At the time of his first examination and report thereon action was suspended by the President. In that regard the case may be said to be similar to wbat was done in the Downes case. In neither the Downes case nor in the instant case did the President approve the report of the examining board. Therefore, it can not be said that final action upon the report was taken, because section 1502 contemplates affirmative action by the Executive to effectuate the examining board’s report. But upon the second examination of plaintiff he failed physically, whereas Downes passed his second examination. The situation of the two men at that point is therefore very different. The plaintiff could not be promoted under his first-examination until the report thereon had been approved by the President. He could not be promoted until his second examination because promotion was forbidden by section 1493 of the Revised Statutes. Not only was he found incapacitated under the examination of October 31, 1914, which was approved by the President November 21, 1914, but in a month thereafter he was examined by a naval retiring board and found temporarily incapacitated and was granted a sick leave for three months. In June, 1915, another retiring board found him not incapacitated for active service. It will be noted that these naval retiring boards are not the boards that examine preliminary to promotion, but their findings may be looked to, I think, as one of the facts in the case shown by the record. Later on, in September, the plaintiff was found physically qualified, but failed professionally shortly thereafter, and he was suspended for six months under the requirements of said section 1505 as amended. Up to September 15, 1915, the plaintiff had been found physically disqualified and, therefore, could not be promoted because of the provisions of section 1493. He could not be promoted during the period of suspension because of the provisions of section 1505 as amended. The difficulty of applying the rule announced in the Toulon case as to the six months is apparent in this case, because all that was necessary in the Toulon case was to consider the effect of section 1505 as amended. Manifestly when an officer has failed in repeated examinations to qualify as required by section 1493 we can not take the rule announced in the Tou-lon case as applicable without a disregard of section 1493. After the expiration of the period of six months for which plaintiff was suspended, he was examined on July 7, 1916, and was reported incapacitated for duty. While no action appears to have been taken by the President on that last report the officer could not be promoted under section 1493 in face of that report unless inaction upon it be held to be equivalent to no report by the board. It was not until January 22, 1917, that plaintiff qualified under section 1493. On January 30 he qualified professionally, and on April 5, 1917, the record was approved by the President. It thus plainly appears that this officer was not qualified for promotion under section 1493 from the date stated in his commission. Not only is it thus made to appear that he was not qualified, but the record goes further and affirmatively shows that he was disqualified. To have promoted him in the face of this record would have been in total disregard of section 1493. He was not qualified for actual promotion under said section; he was not actually promoted; and he did not hold office in the higher rank until after his examination of January 22, 1917. Can he be paid for constructive service in a rank which he was disqualified to enter. Would a promotion under such circumstances be pursuant to law when the statute in plain terms declares that an officer shall not be promoted until he has demonstrated his fitness under suit-abde examination? Would it not be anomalous to say that a man was constructively in service in a grade to which he could not actually be promoted under the law ?

Having announced in the Crapo case, 50 C. Cls., 387, and the Toulon and Downes eases, supra, that the court had the right, and would exercise it, to examine into the legality of promotion it was plainly implied, and may now be stated again, that cases brought under the provisions of the act of March 4, 1913, must largely depend upon the facts of the particular case. Plainly the plaintiff was not promoted pursuant to law upon the date stated in his commission. This court has held that it can not and will not undertake to correct the date stated in the commission. Grapo's ease, supra; Toulon's ease, supra.

The plaintiff should not recover.  