
    FREDERICK RODGERS v. THE UNITED STATES.
    [No. 22002.
    Decided April 22, 1901.]
    
      On the Proofs.
    
    At the time of the passage of the act of 1899 to reorganize the personnel of the Navy there were 6 rear-admirals having the relative rank and pay of major-generals in the Army and 10 commodores having the relative rank and pay of brigadier-generals. Section 7 of the statute substitutes for these 18 rear-admirals, 9 having the rank and pay of major-generals and 9 the rank and pay of brigadier-generals, and drops the title or rank of commodore. Section 13 provides “that after June SO, 1899," “officers of the line shall receive the same pay and allowance" provided by law for officers of corresponding rank in the Army, with a proviso that when on shore duty they shall receive 15 per cent less pay than when on sea duty.
    I.Under section 7 of the Act 3d March, 1899 ( 30 Stat. L., 1004), the 9 reai’-admirals of the lower grade were not entitled to sea pay while on shore duty from the 3d March to the 30th June, and were not entitled to the pay of a major-general after the 30th June.
    II.Where the purpose of Congress is plain the several provisions of a statute must be interpreted accordingly.
    III. A special provision in one section will not be treated as having been altered or annulled by a subsequent section.
    IV. Where there are two provisions in an act, the one special and the other general, apparently conflicting, the special must be taken as intended to be an exception to the general. The legislature can not be supposed to have intended a conflict.
    
      The Reporters' statement of the case:
    The'following are the facts of the case as found by the court:
    I. The claimant is a commissioned officer of the United States Navy.
    II. On March 3, 1899, the claimant was appointed a rear-admiral in the line of the United States Navy and commissioned accordingly, and from that day until the date of the commencement of this suit hold his said commission and performed the duties of his grade which were assigned him, namely, from March 3,1899, to February 13,1901, inclusive, shore duty as the president of the board of inspection and survey, and from February 14 to March 2, 1901, inclusive, sea duty as senior squadron commander of the United States naval force on the North Atlantic Station.
    
      III. For bis services rendered during the period between March 3, 1899, and June 30, 1899, the claimant was allowed pay at the rate of §4,675 per annum, which, for the said period, amounted to §1,536. For the same period the pay of a brigadier-general of the United States Arm}’-, or pay at the rate of §5,500 per annum, would have amounted to §1,808.16, or §272.16 more than the said sum allowed the claimant.
    IV. For his services rendered during the period between July 1,1899, and February 13,1901, the claimant was allowed pay at the rate of §4,675 per annum,- which, for the said period, amounted to §7,595.14. For the same period the pay of a .major-general in the United States Army, less 15 per cent, or-pay at the rate of §6,375, would have amounted to §10,356.22, or §2,761.08 more than the said sum allowed the claimant.
    V. For the period between July 1, 1899, and February 13, 1901, the claimant was paid, as commutation in lieu of an allowance of quarters, the sum of §1,166. For the same period a major-general of the United States Army would have been entitled to receive, as commutation in lieu of his proper allowance of quarters, the sum of §1,386.20, or §220.20 more than the sum paid to the claimant.
    VI. For his services rendered during the period between February 14 and March 2, 1901, inclusive, the claimant was allowed pay at the rate of §5,500 per annum, which for the said period amounted to §256.16. For the same period the pay of a major-general of the United States Army, or pay at the rate of §7,500 per annum, would have amounted to §349.32, or §93.16 more than the said sum allowed the claimant.
    VII. On April 29, 1899, the Comptroller of the Treasury rendered a decision, wherein he ruled that the claimant, while on shore duty, should receive pay at the rate of §4,675.per annum (5 Comp. Dec., 750). The United States has failed to pay the claimant the said sums of §272.16, §2,761.08, §220.20, and §93.16, amounting to §3,346.60.
    
      Mr. James IT. Hayden for the claimant. Mr. Joseph K. Me Common was on the brief:
    1. During the period between March 3, 1899, the date of his appointment, and June 30,1899, the claimant was entitled to the pay of a brigadier-general ($5,500 per annum) without a deduction of 15 per cent.
    The upper and lower 9 numbers did not constitute two distinct grades, like the grades of lieutenant and junior lieutenant. Each one of the 18 rear-admirals was vested with the same authority, was liable to be assigned to the same duty, was entitled to wear the same uniform and fly the same flag, and took rank corresponding with the same grade in the Army, namely, that of major-general (Rev. Stat. U. S., sec. 1466). The only discrimination between the occupants of the upper and lower 9 numbers of the grade was the one set out in the first proviso. In accordance with this, from March 3, 1899, the rear-admirals embraced in the lower 9 numbers were to receive the pay and allowances provided by law for a brigadier-general, while those of the upper 9 numbers were to continue to receive the pay of rear-admirals as provided by section 1556, Revised Statutes United States. The proviso is clear and free from ambiguity. It did not leave the pay of those embraced in the lower 9 numbers a matter of uncertainty, for the pay of a brigadier-general, no matter on what duty he is employed, is fixed at $5,500 per annum (Rev. Stat. U. S., sec. 1361). Its language can not be disregarded in favor of any presumption as to the supposed policy of the Government to allow naval officers when on sea duty more pay than when on shore (St. Paul, M. and M. P. Go. v. Phelps, 137 U. S,, 528). Its language is not repugnant to the provisions of any other section of the act; it is not dependent upon any of them for support, and the proviso is not controlled or limited by any of them.
    On April 29, 1899, the Comptroller of the Treasury, in a decision (Dec. Comp., Yol. Y, p. 750), advised the paymaster having charge of the claimant’s accounts that the claimant while on shore duty was entitled to the pay of a brigadier-general, less fifteen per centum, or pay at the rate of $4,675 per annum. The Comptroller held that section 15 of the act controlled section 7 to the extent of ingrafting upon it this proviso:
    “ Provided that such officers when on shore shall receive the allowances, but fifteen per centum less pay, than when on sea duty.”
    
      In paying the claimant this decision was followed.
    One thing with regard to section 13 is certain, namely, that the body of the section and the first proviso, which deals with the same subject-matter, are controlled by the first clause of the section. Hence they did not become operative “ existing law” when the act was approved, but only “after June 30, 1899.” This is- conceded by the Comptroller. (Dec. Comp. Treas., Yol. V., pp. 113,715; also pp. 750, 752, middle.)
    Now, a statute must become operative on a day certain. The legislature may expressly provide that it shall take effect on a day subsequent to its enactment. It can not be both operative and inoperative at the same time. Before it becomes operative it can not modify, control, or exert any influence upon an existing law.
    Therefore we submit that prior to July 1,1899, section 13 did not control or limit the proviso of section 7/ We submit that inasmuch as section 7 makes no exception with regard to the pay of rear-admirals on shore duty, the executive officers of -the Government could make none, and that the first proviso of section 13 can not be interpolated into section 7. (French v. Spencer, 12 How. (U. S.), 228; Yturbide v. U. S., 22 How. (U. S.), 290.)
    Hence it appears that there has been withheld from the claimant 15 per cent of the pay which he was entitled to receive between March 3 and June 30, 1899, or §270.42.
    Since July 1, 1899, the claimant has been entitled to the pay of a major-general, less 15 per cent (§6,375 per annum), instead of the pay of a brigadier-general, less 15 per cent (§4,675 per annum).
    The body of section 13 of the “Navy personnel act” and its first proviso relate to the pay of all commissioned officers of the line of the Navy. The language employed in them is clear and explicit. There is nothing in either which tends to show that it does not and was not -intended to apply to the 9 rear-admirals occupying the 9 lower numbers of that grade. No other proviso contains anything which indicates that out of the entire service these rear-admirals were to be excepted from the general provisions of the section. In the absence of some provision leading irresistibly to the conclusion that these 9 officers were excepted it must' be held that as soon as section 13 became operativ.e it fixed the rate of their pay and the extent of their allowances. {French v. Spencer, 21 How. (U. S.), 288; Yturbidev. TI. S., 22 How., 290.)
    There is no provision which does irresistibly lead to such a conclusion or render such a conclusion tenable. There is none which is necesssarify repugnant to the letter of section 13, nor to its application to all line officers. The proviso appended to section 7, which became operative on March 3, 1899, did make special provision for the pay and allowances of the rear admirals embraced in the 9 lower numbers of that grade, but it seems clear that this was not intended to be permanent in its effect. It was intended merely to cover the period from March 3 until “after June 30,” and to be superseded by section 13 when the latter should become operative on July 1. If, on the contrary, Congress had intended that the pay of rear-admirals of the lower 9 numbers should remain at the rate provided by section 7, this could have been made plain and clear by the repetition in section 13 of the proviso appended to section 7, or by a simple reference to it. This would have shown that an exception was made. Congress did not make the exception, and it can not be supposed that one was intended. It would be unreasonable to assume that Congress neglected a simple and obvious means by which to make its intention clear. (.'French v. Spencer, supra; Yturbidev. U. S., supra.)
    
    In construing the “Navy personnel act” aid may be derived from the state of things which existed when the act was passed. {Platt v. Union Pacific R. R., 99 U. S., 491). Prior to March 3, 1899, officers of the Navy, in general, though intrusted with the performance of duties quite as arduous and important as those assigned to officers of the Army of corresponding rank, were allowed less pay than the latter. Congress appreciated that this was unjust, and provided a remedy by equalizing the pay of such officers of the Army and Navy. In adjusting the relative rank, the status and pay of officers of the line of the Navy and those of certain coi’ps, difficulties had arisen and jealousies and discontent had been developed. Congress appreciated that this state of things was undesirable. One of the main objects of the act under consideration was to cure it. The act abolished the system of giving staff officers relative rank and gwe them absolute rank, along with officers of the line. It was found to be unnecessary to have two regular grades of officers of flag rank; therefore the grade of commodore was abolished, or rather merged into that of rear-admiral. From this we see that it was the policy of Congress to “ reorganize and increase the efficienc}r of the personnel of the Navy” by merging of ranks or grades and by granting an equitable increase of pay throughout the service. To allow one-half or any proportion of the officers of one grade more pay than the rest, while all remained subject to the same obligations and entitled to the same status and consideration, would have been unprecedented. There is every reason to suppose that Congress intended to do nothing of the kind. On the other hand, the letter of the act, and common sense, lead to the conclusion that it was intended to have section 13 take effect on July 1, 1899, and to have it supersede the first proviso of section 7, and all other laws in conflict with it, and have that time to regulate and control the pay of all officers.
    The fact that no express limitation is placed upon the duration of the first proviso or section 7, and the fact that it is more specific in terms than section 13, do not show that it was intended to be a permanent provision of law,.nor do they militate against the conclusion that the proviso was repealed by section 13 when it became operative.
    In the case of King v. Cornell (106 U. S., 395, 396) it was said:
    “While repeals by implication are not favored, it is well settled that where two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions which plainly show that it was intended as a substitute for the first, it will operate as a repeal. This subject was fully considered in United States v. Tynen (11 Wall., 88), where the early authorities are cited and revised at considerable length. ” {Bed Boole v. Henry, 106 U. S. 596, 601.)
    In the case of the District of Cohimbia v. Hutton (143 U. S., 18, 26-27) it was said:
    “We are not unmindful of the rule that repeals by implication are not favored. But there is another rule of construction equally sound and well settled which we think applies to this case. Stated in the language of this court in United States y. Tynen (11 Wall., 88, 92) it is this: ‘ When there are' two acts on the same subject, the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.”’ See also Murdoch v. Memphis (20 Wall., 590, 617); Traey v. Tuffiy (134 U. S., 206, 223); Fish v. Henarie (142 U. S., 459).
    Pursuant to the terms of section 13, on and after July 1, 1899, the claimant was entitled to pa3r at the rate of 16,375 per annum. Having been paid at the rate of $4,675 only, there was due him on August 8,1900, a balance amounting to $1,846.39.
    3. Since July 1, 1899, the claimant has been entitled to the commutation in lieu of an allowance of quarters which a major-general would have been entitled to receive ($72 per month), instead of the commutation that a brigadier-general would have been entitled to receive ($60 per month).
    The determination of this proposition will follow that of the one preceding (2). Since July 1, 1899, both the pay and allowances of every officer of the Navy have been fixed by those provided for officers of corresponding rank in the Army. The claimant being entitled to pay equal to that of a major-general, less 15 per cent, was entitled to the allowances of a major-general without reduction (sec. 13, first proviso). The commutation to which a major-general is entitled in lieu of an allowance of quarters is $72 per month (six rooms, at $12 per month each). Having been paid but $60 per month in lieu of an allowance of quarters, $12 was unlawfully withheld from the claimant each month, and on August 1, 1900, the balance due him on this account amounted to $156.
    We respectfully submit that the claimant is entitled to judgment against the United States in a sum equal to the three balances hereinbefore mentioned, namely, $270.42 on account of his pay prior to July 1, 1899; $1,846.39 on account of his pay from July 1, 1899, until August 8, 1900, and $156 on account of his allowances. These amount to $2,273.21.
    
      
      Mr. 'Assistant Attorney-General Pradt for the' defendants.
    It certainly seems reasonable to say, as urged by the Comptroller, that—
    “ It is hardly to be supposed that Congress would enact two provisions in different parts of the same act, one of which should abrogate another and render it wholly null and void. The two are rather to be construed together, if such construction is possible according to any known rules of interpretation.”
    The fair intention of Congress in enacting section 7 of the navy personnel act, by which the grade of commodore was abolished, seems to have been to create in lieu of the grade of commodore, for pay purposes, a new or subgrade within the grade of rear-admiral known as the nine lower numbers of that grade. Into this subgrade the claimant, with other commodores, was advanced. It certainly seems wholly unreasonable to suppose this purpose of Congress, to make a distinction as to pay between rear-admirals of the nine lower numbers and those above them, to have been intended to relate only to the period between March 3 and July 1,1899. Rather it should be held to continue unaffected by the provisions of section 13.
    The other contention of claimant is that during the period from March 3, 1899, to July 1, 1899, he was entitled to the full pay and allowance of a bi’igadier-general, although at the time he was engaged in shore duty, upon the ground that the proviso of section 13, that commissioned officers of the line of the Navy, etc., shall receive 15 per cent less pay when on shore than when on sea duty, does not take effect until after June 30, 1899.
    If this contention is correct, it can be so only because of inadvertent legislation, for the distinction between pay for sea duty and for shore duty has always been maintained and rests upon grounds of the clearest policy. Hence it can not be supposed that Congress deliberately intended to abolish this distinction as regards the pay of one class of naval officers, and then only during the brief period in controversy, and this was the view taken by the Comptroller.
    It can not be denied that the sections of the navy personnel act, which are the subjects of discussion in this case, seem to have been hastily and are certainly unartistically drawn, so that the meaning of the same is not wholly clear; but it is insisted that the construction which is contended for herein by the Government gives effect to what seems to be the reasonable intent and purpose of Congress in that enactment. Furthermore, this construction results in absolute fairness and justness to the claimant, which is all that he can fairty ask.
   Peelde, J.,

delivered the opinion of the court:

On March 8, 1899, the claimant was appointed a rear-admiral in the United States Navy, and as such claims the pay and allowance of a brigadier-general in the United States Army from that date until June 30,1899, without any deduction for shore service. Since July 1, 1899, ho claims the pay and' allowances, except forage, of a major-general in the United States Army, less 15 per cent pay when on shore duty.

The claimant grounds his right to recover as stated on sections 7 and 13 of the act of March 3, 1899, entitled “An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States” (chap. 413, 30 Stat. L., 1004).

Section 7 reads:

“ That the active list of the line of the Navy, as constituted by section one of this act, shall be composed of eighteen rear-admirals, seventy captains, one hundred and twelve commanders. one hundred and seventy lieutenant-commanders, three hundred lieutenants, and not more than a total of three hundred and fifty lieutenants (junior grade) and ensigns: Provided, That each rear-admiral embraced in the nine lower numbers of that grade shall receive the same pay and allowance as are now allowed a brigadier-general in the Army. Officers, after performing three years’ service in the grade of ensign, shall, after passing the examinations now required by law, be eligible to promotion to the grade of lieutenant (junior grade): Provided, That when the office of chief of bureau is filled by an officer below the rank of rear-admiral, said officer shall, while holding said office, have the rank of rear-admiral and receive the same pay and allowance as are now allowed a brigadier-general in the Anuyu And provided furtllar, That nothing contained in this section shall be construed to prevent the retirement of officers who now have the rank or relative rank of commodore, with the rank and pay of that grade: And provided further, That all sections of the Revised Statutes which, in defining the rank of officers or positions in the Navy, contain the words “the relative rank of” are hereby amended so as to read “the rank of,” but officers whose rank is so defined shall not be entitled, in virtue of their rank, to command in the line or in other staff corps. Neither shall this act be construed as changing the titles of officers in the staff corps of the Navy. No appointments shall be made of civil engineers in the Navy on the active list under section fourteen hundred and thirteen of the Revised Statutes in excess of the present number, twenty-one.”

At the time of the passage of that act there were, as we are advised, 6 rear-admirals in the 'Navy with the relative rank of major-general in the United States Army, and 10 commodores with the relative rank of brigadier-general in the Army.

By the provisions of section 7, excluding commodores from the active list of the line of the Navy, the rank or grade of commodore is.abolished and, in effect, merged into that of rear-admiral. And as the active list was, among other officers, to be composed of 18 rear-admirals, and only 6 were serving at the time of the passage of the act, there were vacancies to be filled by appointment, and in respect to certain of that grade it was provided “that each rear-admiral embraced in the 9 lower numbers of that grade shall receive the same pay and allowance as are now allowed a brigadier-general in the army. ”

As the rank of commodore was -abolished by the act, the claimant and others holding that grade were advanced by appointment, pursuant to Revised Statutes, section 1366, to the grade of rear-admiral, and in part are “embraced in the 9 lower numbers of that grade,” so that for the purpose of pay a distinction is created by the act in the grade of rear-admirals and special provision made therefor.

When the act was passed; though the relative rank of a commodore was that of a brigadier-general in the Army the pay was less, and it was largely because the officers in the Navy were paid less than the officers of corresponding rank in the Army that dissatisfaction arose. So to meet that objection in part the rear-admirals “embraced in the 9 lower numbers of that grade ” were given the pay and allowance of a brigadier-general in the Army.

Thus, biT the abolition of the rank of commodore and the advancement of those theretofore in that grade to the 9 lower numbers in the grade of rear-admiral, their pay is increased from $5,000 (sea-pay) to $5,500 per annum, an increase of 10 per cent over the highest rate of pay theretofore received- by them as commodores, while for shore duty thejr received 15 per cent less pay, plus their allowance for commutation for quarters ($720), or in all $5,395 per annum, an increase of nearly 35 per cent over their shore pay ($4,000) as commodores, and as vacancies occur in the grade above the nine, those embraced in said lower numbers will according to seniority be advanced, and they will then be entitled to receive the pay and allowances, except forage, of a major-general in the Army, as provided by section 13 of said act, which reads:

“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 shalPnot apply to warrant officers commissioned under section twelve of this act: Provided further, 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: Provided further, That naval chaplains, who do possess relative rank, shall have the rank of lieutenant in the Navy; and 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. And all provisions of law authorizing the distribution among captors of the whole or any portion of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed: And provided further, That no provision of this act shall operate to reduce the present pay of any commissioned officer now in the Navy; and in any case in which the pay of such an officer would otherwise be reduced he shall continue to receive pay according to existing law: And provided further, That nothing in this act shall operate to increase or reduce the pay of any officer now on the retired list of the Navy.

The claimant’s contention that by virtue of the first proviso to section 7 he was entitled to the same pay and allowance as a brigadier-general from the date of the approval of the act of March 3 to June 30, 1899, without any deduction for shore duty, and thereafter to the páy and allowances, except forage, of a major-general in the Army, less 15 per cent pay for shore duty, can not be sustained without holding that section 13 superseded and abrogated section 7 in respect to the pay of the rear-admirals “embraced in the 9 lower numbers of that grade.”

Both sections are part of the same act, and the first proviso to section 7 is a special provision for the class of officers there stated. There is also a special provision in the second proviso to the effect that “ when the office of chief of bureau is filled by an officer below the rank of rear-admiral said officer shall, while holding said office, have the rank of rear-admiral and receive the same pay and allowance as are now allowed á brigadier-general in the Army.”

If the claimant’s contention should prevail it is question-' able whether that provision would not also be abrogated; but whether that be correct or not the general rule is that a general provision will not repeal a special provision unless there are express words to that effect or an irreconcilable conflict in the language used.

Legislation must, in case of doubt, be viewed in the light of the historical circumstances and surroundings to ascertain the meaning of the language employed. Prior to the passage of the act the highest or sea pay of a commodore was $5,000 per annum, shore duty $4,000, and leave or waiting orders, pay $3,000. That of a rear-admiral was for sea service $6,000 per annum, shore duty $5,000, and for leave or waiting orders pay $4,000, being less pay than that of brigadier or major general in the Army, whose rank they assimilated, respectively, at the time of the passage of the act. This was in part. the mischief to be remedied.

The rear-admirals in the service when the act was passed, and those appointed thereafter in the upper 9 of that grade, became entitled, after June 30, 1899, by virtue of section 13, to $7,500 per annum, an increase over the pj-ior sea pay of rear-admirals of 25 per cent; and for shore service, 15 per cent less pay, plus their allowance for commutation for quarters ($864), making $7,239 per .annum, an increase of nearly 45 per cent, while of course the percentage of increase in the pay of the commodores advanced to the upper 9 of that grade will bo still greater.

What reason the Congress had for making the distinction they did in the pay of rear-admirals we do not know. It may have been based on long or distinguished services. But whatever the reason may have been our duty is to give force and effect to the language used if it can be done.

Section 13 standing alone appears broad enough to justify the claimant’s contention, but construing the two sections together as parts of the same act, and keeping in view the canon of interpretation as to the purpose' of the act and the former service, status, and pay of rear-admirals and commodores we think there is no difficulty in upholding section 7 as permanent legislation not inconsistent with the general provisions of section 13.

By the proviso to section 7 the rear-admirals “embracedin the 9 lower numbers of that grade” are segregated from the other officers there named and placed in a separate class for the purpose of fixing their pay; and special provision being made therefor section 13 must be read with that in view; and thus reading the section, we interpret it to mean that commissioned officers not otherwise specially provided for in the act “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.” This construction is neither new nor novel, but is abundantly supported by authority.

Section 13 is in general terms, and the language there used does not indicate that it was the intention of the Congress to abrogate the special provision made in section 7 for the rear-admirals “ embraced in the 9 lower numbers of that grade;” and special provision having been made for them it can not be held that a subsequent general statute, much less in the same act, was intended to alter or repeal the special provision so made. (Endlich on the Interpretation of the Statutes, 223 et seq.)

“The reason and philosophy of the rule is that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms — or treating the subject in a general manner, and not expressly contradicting the original act — shall not be considered as intended to affect the more particular or positive previous provisions, unless it is 'absolutely necessary to give the latter act such a construction in order that its words shall have any meaning at all.” (Sedgwick, on the construction of statutory and constitutional law, 98.)

Here is a case directly in point:

“Where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other general, which, if standing alone, • would include the same matter, and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act, as the legislature is not to be presumed to have intended a conflict.” (Crane v. Reader, 22 Mich., 322, 334, and the numerous authorities there cited.)

We can not attribute to the Congress the folly of having in the same act provided two rates of pay for the same officers, one a temporary rate for four months at $5,500, and thereafter a permanent rate of $7,500.

It must therefore be held that the purpose and intent of the Congress was, as expressed in the proviso, that “ each rear-admiral embraced in. the 9 lower numbers of that grade shall receive the same pay and allowance as are now allowed a brigadier-general in the Army,” and that such pay will continue so long as they remain in the 9 lower numbers of that grade.

The next question is, what deduction,' if any, should be made from the claimant’s pay while on shore dutjr, and when should such deduction begin — that is, whether from the date of the act, March 3, or after June 30, 1899?

Section 13 provides in express terms “that after June thirtieth, eighteen hundred and ninety-nine, commissioned officers of the line of the Navy and of the Medical 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.” Hence, the proviso thereto fixing 15 per cent as the- amount to be deducted from the pay. of such officers when on shore duty did not, of course, become .operative as " to those whose pay was so fixed until after that date, i. e., until after such officers became entitled to receive the pay and allowances therein provided for them.

But in respect to the rear-admirals, embraced in the nine lower numbers of that grade,” though their pay is elsewhere provided for, they are nevertheless included among the commissioned officers, referred to, and for that reason the proviso as to them became operative upon the passage of the act— that is, when they became entitled to receive the pay thus specially provided for them.

This construction is not only in harmony with the language of the two sections, but also with the long-established policy of the Government, continued in section 13, to pay officers in the Navy less when on shore duty than when at sea.

If the Congress had intended to except anjr of the commissioned officers referred to in section 13 from the operation of the proviso in respect to less pay for shore than for sea service they would have said so, and not having done so we can not add an exception thereto. Therefore, our conclusion is that the pay of the claimant is fixed by the proviso to section †, except that for shore service he will be entitled to “ receive the allowances, but 15 per cent less pay than when on sea duty,” as provided in said section 13.

For the reasons stated, the petition must be dismissed.

Nott, Ch. J., was not present when this case was tried and took no part in the decision.  