
    SETH M. ACKLEY v. THE UNITED STATES.
    [No. 23982.
    Decided February 6, 1905.]
    
      On the Proofs.
    
    A naval officer on duty as secretary of the Light-House Board is. detached and ordered to the Asiatic Station “ for the command of the Ü. 8. 8. Concord.” He reports at Manila, and is directed to assume command as soon as the Concord shall arrive. Before assuming command he is ordered to the naval hospital at Yokohama for medical treatment, after which he is ordered back to Manila and assumes command of the Concord.
    I. Where a naval officer is attached to a vessel when ordered to a hospital for treatment he is entitled to sea pay while in the hospital. But if, when ordered to the hospital, he is awaiting the arrival of the vessel to which he has been ordered, he is not then attached and will not be entitled to sea pay while in the hospital. Neither will he be entitled to shore-duty pay “ heyond, seas ” under the Kavy personnel (30 Stat. L., p. 1007, § 13). Nott, Ci-i. J., dissenting.
    XI. Shore duty beyond seas is exceptional duty both as to officers of the Army and Navy, and a naval officer must be “ detailed for shore duty beyond seas ” before he can “ receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places.”
    
    
      
      The Reporters'1 statement of the case:
    The facts of the case sufficiently appear in the opinion of the court.
    
      Messrs. George A. and William B. King for the claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The claimant, a commander in the United States Navy on the retired list since October 25, 1901, seeks to recover the difference between the shore pay, which he received, and the sea pay of his grade from June 5 to September 8,1899, under the following state of facts:

March 17, 1899, the claimant was, by order of the Secretary of the Navy, detached from duty as secretary of the Light-House Board, Treasury Department, Washington, D. C., as well as from such other duties as may have been assigned to him, and was ordered to “ report to the commander in chief of the Asiatic Station for the command of the U. S. S. Concord.” The complainant reported, in compliance with the order, June 4, 1899, and on that date was verbally directed by the commander in chief to assume command of the Concord as soon as the claimant should fall in with that vessel. But, on the next day, June 5, before reporting or assuming command of said vessel, the claimant was, upon the recommendation of the medical board of survey, ordered to the United States Naval Hospital at Yokohama, Japan, for medical treatment, where he went and remained under treatment until September 8, 1899, when, by order of the commander in chief, the claimant was ordered to Manila to report to the commander in chief, to relieve Lieut. Commander J. B. Briggs from the command of the Concord, which he did, leaving the hospital September 8 and assuming-command of said vessel September 25, 1899.

The claimant contends, on the facts stated, that he is entitled to the sea pay of his grade from June 5 to September 8, 1899, and that if not so entitled, then he contends that during the time he was in the hospital he was on shore duty beyond seas under detail therefor within the meaning of section 13 of the act of March 3, 1899 (30 Stat. L., 1007).

Had the claimant been attached to a vessel, entitling him to sea pay, at the time he was ordered to the hospital for medical treatment, his status in that respect would have continued until he rejoined his vessel, under the decision in the Collins case (37 C. Cls R., 222) ; but the claimant was not attached to a vessel, entitling him to sea pay, when he was ordered to the hospital, and consequently he is not entitled to sea pay while he was under treatment in the hospital.

Section 13 of the act of 1899, supra, so far as material to this case, provides:

Sec. 13. That after June thirtieth, eighteen hundred and ninety-nine, commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army: Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty; but this provision shall not apply to warrant officers commissioned under section twelve of this act: Provided further, Then when naval officers are detailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places.”

In the case of United States v. Thomas the Supreme Court, in construing that provision of the act relating to the detail of naval officers for shore duty beyond seas, said:

“ The intention of Congress was evidently to put officers of the Army and Navy on the same footing with respect to their general pay, aiid to make the act prospective in its application to future legislation, so that if Congress should thereafter raise the general pay of army officers as fixed by Revised Statutes, section 1201, a like increase, should apply to navy officers. It does not, however, follow that Congress may not increase the pay of army officers for services in particular places or under special circumstances, without thereby intending that the same increase shall apply to naval officers performing the same service under like circumstances. Thus, if the 'act should allow army officers increased pay when ordered to sea or to a foreign port, it would not follow that naval officers would be entitled to a like increase, since such service would be wholly exceptional in the case of army officers, while it is the natural and normal duty of navy officers to engage in sea service, cruise in foreign waters, and lie up in foreign ports. It never could have been the intention of Congress to disable itself from awarding to a particular class of army officers an increase of pay for exceptional services without thereby increasing the pay of navy officers, whose lives are largely passed in performing like services.
“ Confirmation of this view is found in the second proviso of section 13, ‘ that when naval officers are detailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places.’ Here is a distinct recognition of the fact that when naval officers are detailed for a special or unusual duty beyond seas they shall receive the same pay as army officers detailed for the same duties. This provision, however, would be wholly unnecessary if the act were given the broad application contended for, since the increased pay allowed to army officers for duty beyond seas would apply to naval officers without a special proviso to that effect. Shore duty beyond seas being an exceptional duty, both to officers of the Army and Navy, and being probably attended by increased expenditures and dangers incident to a tropical climate, it is very natural that Congress should award them both increased compensation.”

It certainty can not be contended that when a naval officer is ordered to a hospital beyond seas for medical treatment such order will operate as a detail for special or unusual duty entitling such officer to increased pay.

The petition is dismissed.

Nott, Ch. J.,

disssenting:

I am of the opinion that the chief and controlling legislative intent of the navy personnel act was to remove the differences between navy and army pay, and, in place of the pay theretofore given to navy officers, to substitute the pay then and thereafter given or to be given to army officers.

One exception contained in the statute was that where a naval officer was on. shore, under an assignment to shore duty, he should be entitled to the allowances of an army officer of relative rank on similar detached service, but should receive 15 per cent less pay than the army officer of like rank on like service. This exception was a narrow one, in contravention of the general purpose and policy of the statute. In my opinion it should not be extended bjr going back to obsolete navy pay, and then applying to army pay the statutory conditions which were formerly attached to what is now obsolete navy pay.

In the present case the officer was not assigned to shore duty; he was not doing shore duty; he was not on shore during a part of the time; he was not occupying the quarters of an army officer on detached service; he was not entitled to the allowances of an army officer on detached service, and, in my opinion, he was not subject to the deduction of 15 per cent from the pay of an army officer on detached service.

This case contains facts which were not in any case which has been decided by the Supreme Court; and these discrimi-nations against naval officers should not, I think, be carried further than the necessities of each case may require; and to that extent the claimant in this case should recover.  