
    Samuel Magaw v. The United States. Jerome E. Morse v. The Same.
    
      On the Proofs.
    
    
      In 1868, a commander in the Havy is sent before a retiring board, which finds him incapacitated by reason of a disease that did not result from exposure in the line of duty, or other incident of service. The President ap>proves and retires the officer on “furlough pay.” He is paid till 1st July, 1875, $1,750 a year, and since then $1,150.
    I.The Revised Statutes enact that a naval officer retired on “ retired pay ” shall he paid according to the provisions of section 1588; and an officer retired on “ furlough pay” according to the provisions of section 1593 — the one three-fourths of “seaway,” the other one-half of “ leave-of-absence pay.”
    
    II.Where a court is without douht as to the intent of Congress as expressed in the Revised Statutes, it cannot tnrn to the original statutes, even though they would show that the revision changed thb law.
    III.The general provision in the Revised Statutes (§ 5597) that the repeal of previous statutes shall not affect acts done or rights accruing under them, nor affect the right to any office, nor change the term or tenure thereof, does not apply to the salary of an office, nor to the pay of a retired naval officer. If the Revised Statutes reduce the pay of such an officer, it is not saved by the general saving provision of section 5597, which refers only to the office.
    
      The Reporters’ statement of tlie case:
    Tbe claimant here, a commander in tbe Navy, was retired prior to tbe Revised Statutes on furlough pay and was allowed and paid one-balf of tbe sea pay” of bis grade or rank at tbe time of bis retirement, wliicb was then tbe furlough pay” of a retired officer. When tbe Revised Statutes took effect, tbe accounting officers reduced bis pay under section 1593 to onebalf of leave-of-absence pay.” Leave-of-absence pay being less than sea pay, tbe effect of tbe change was to reduce tbe claimant’s pay from $1,750 a year to $1,150. For tbe difference so withheld he now brings his action. The court upon the evidence found the following facts :
    I. The plaintiff was duly commissioned a commander in the Navy of the United States on the 10th day of October, A. D. 1866.
    II. By orders dated September 30, 1868, a naval board was convened for the purpose of investigating and reporting on such cases as should be referred to it under the seventeenth and twenty-third sections of the “ act providing for the better organization of the military establishment,” approved August 3, 1861. Claimant, September 30, 1868, held the office of commander in the Navy, and his case was referred to said board by the Secretary of the Navy, and he, claimant, ordered before the same.
    III. Said board found claimant incapacitated for active service, by reason of phthisis pulmonalis, which did not result from exposure in the line of duty, or from any other incident of service.
    IY. The President concurred in and approved the said finding of the board in case of claimant ¡ and, in accordance with his direction, claimant was retired as commander on furlough pay October 29,1868, and since, and until the filing of his petition in this case, he held continuously said position on the retired list.
    Y. From the 1st day of July, A. D. 1870, to the 1st day of July,- A. D. 1876, plaintiff was paid at the rate of $1,750 per annum, as commander, aforesaid, on said retired list. From July 1,1875, to and including July 1,1879, claimant has been paid by the United States at the rate of $1,150 per annum.
    
      Mr. J. J. Johnson for the claimant:
    The act of Congress approved March 3, 1873, made a new provision regarding the pay of certain officers on the retired list, on account of length of service and other causes, &c., but did notin any manner affect the pay or the status of the plaintiff. These provisions are embraced in the Revised Statutes. The last sentence of section 1588 reads as follows:
    “The pay of all other officers on the retired list shall, when not on active duty, be equal to one-half the sea pay provided by this chapter for the grade or rank held by them, respectively, at the time of their retirement.”
    
      Section 1593: “ Officers placed on tbe retired list, or furlough, pay, shall receive only one-half the pay to which they would have been entitled if on leave of absence on the active list.”
    The Revised Statutes had no effect until their approval on the 22d day of June, 1874. The plaintiff had been retired upon furlough pay over five years before the adoption of the Revised Statutes. Here a certain act was done, viz, plaintiff had been retired and his pay fixed — furlough pay had been abolished by the pay act of July 15, 1870 — and the settlement thereupon of retired officer’s pay as at “one-half the highest sea pay” of their grade, was an “act done,” and must therefore be included under the words of the statute, “ shall not affect any act done.”
    To draw one-half the highest sea pay of grade must have been a right, before the said revision, or it would not have been permitted by the accounting officers of the Treasury. It will not be said that the retired officers were given this sum as charity, or grace, or kindness, or gift, or gratuity.
    It must be admitted that it is “ a right to receive.” Such a right and “a right to receive” are rights which the afore.said repeal proviso says “shall not affect any right.” “But all rights (without mentioning any exception whatever) and liabilities (i. e., for instance the government’s liability to pay one-half of the highest sea pay to ‘all officers now on, or hereafter placed on, the retired list’) under said (the original) acts, shall continue, and may be enforced in the same manner as if said repeal had not been made. ‘Nor shall said repeal in any manner affect the right to any office.’”
    It is clear that if a law did not exist at the time, nothing can be substituted in place of it, therefore it has no place at all; it is extraneous matter, and this is true with furlough pay, which was abolished by sections 5 and 19, pay act, 16th July, 1870, several years before the revision of the statutes. The original acts were the work of Congress. The Revised Statutes the work of the copyist, to collect together in handy compass, the former legislative enactments which still remained in force,- a praiseworthy act, and not intended to be a snare, a source of loss and ruin and misery to any person. It could not have been the intention of Congress to make the Revised Statutes retrospective or retroactive in their effect.
    A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in respect to transactions and considerations already past is to be deemed retrospective or retroactive. (Sedgwick on Stat. and Constitutional Law, 188.)
    Betrospective laws which impair the obligation of contracts, or partake of the character of ex-post facto laws, are condemned. (8 Peters, 885 17 How., 456.)
    An office is a public station or employment, conferred by the appointment of the government, and embraces the ideas of tenure, duration, emolument, and duties. (United States v. Hartwell, 6 Wall., 385.)
    By the provisions of section 5597, the plaintiff’s pay should be the same as though the Bevised Statutes never had been adopted.
    Now, is not the old law, by which the pay of these officers was fixed and settled, still in force, notwithstanding the Bevised Statutes'? In section 4381, a portion of the old law, Act February 18, 1793 (ch. 8, § 34, 1 Stat. L., p. 316), was left out altogether, and the late Attorney-General Pierrepont decided that the portion omitted was, and is still, in force, and fees therein proscribed are now being paid. A mere change of phraseology in the revision of a statute will not work an alteration in the law as previously declared, unless such was clearly in the intention of the legislature. (Theariat v. Hart, 2 Hill, 380; Parmalee v. Thompson, 7 Hill, 77; Bailey v. The Mayor, &c., New Yorh, 7 Hill, 146.)
    In the case of Bailey v. The Mayor, it is said: “As the verdict in the present case, rendered before the act of 1844 was passed, the charge for interest should have been disallowed.”
    The intent of the legislature to alter the law must be such as palpably to require a different construction. (Yoimg v. BaJce, 1 Selden, 463; The People v. Carnal, 2 Selden, 463; Mooers v. Bunlcer, 9 Foster, N. H., 427.)
    
      Mr. George C. Wing (with whom was the Assistant Attorney-General) for the defendants:
    I. Whether or not the statutes, before the revision, entitled claimant to a higher rate of pay, the only authority for paying him afterwards was section 1593 Bevised Statutes.
    The language of this provision is plain; there is no room for doubt but that it surely describes such an officer as claimant, wbo was “placed on tbe retired list on furlough pay,” and whose status — although a special means is provided, section 1594 — has never been changed.
    Unless it applies to claimant’s case, it can have no application, and unless it justifies the reduction in pay of which he complains, it is totally ineffective and idle among the laws. The meaning is too clear for construction, and according to the now settled doctrine as applied in Bowen’s Case, resort cannot be had, under such circumstances, to the old laws to interpret the revised. In Bowen’s Case the court conceded that the old law stood as claimed by the government, but because as revised the language was clearly indicative of another meaning, and one consistent with the general object of the legislature, that meaning was held to prevail. (United States v. Bowen, 100 D. S. R., 509.) The revision is not a mere collection, as claimant A'iews it; it is the “legislative declaration that such was the state of the law on the 1st of December, 1873” (Smyth v. Mslce, 23 Wall., 382), and “ we are, as to all the future cases, bound by the law as found in'the Revised Statutes, by the express language of Congress on that subject.” (Murdoch v. Citii of Memphis, 20 Wall., 617.)
    II. Brief for claimant does not contest the clear application, by itself, of section 1593 to this case. The closing sentence of section 1588, however, is cited as fixing one-half sea pay for all retired naval officers save those retired for long and faithful service. This apparent conflict between the two sections of the chapter yields readily to the well-known rules of construction.
    Chapter 8 of the revision contains all the provisions respecting the pay of retired naval officers, and it will be seen that these sections deal with nothing else l han the compensation, and together embrace all retired naval officers, whether of the line or staff. If the officer is a retired third assistant engineer his pay is fixed by section 1590, not by section 1588; so if his record shows that he is retired on “ furlough pay,” section 1593 regulates his salary 5 if he belongs to any of the classes described in the first sentence of section 1588, he is entitled to the pay allowed in that sentence. But if he is neither within the terms of section 1590, nor of section 1593, nor of the first sentence of section 1588, then he is to be regarded as within the terms of the last sentence of the latter section.
    
      Tbe chapter thus deals with the entire subject of pay, and under no rule can a single provision be selected, and, because general in its expressions, be taken to absorb and overrule special provisions.
    “The rule is that, whenever there is a particular enactment in the same statute, and the latter taken in its most comprehensive sense would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.” (.Pretty v. Solly, 26 Beav., 610; Dwarris, 658; Sedgwick, 800; State ex. rel. Lutfring v. éoetze, 22 Wis., 365.)
    There is certainly plain justice and propriety in the state of law which the construction asserted by defendants would give. It preserves, and not wholly discards, not only sections 1590, 1593, but also all sections which make a distinction between those officers whose faithful service has rendered them unfit for duty, and those whose incapacity has resulted either through their own act and fault, or through no incident for which the government was even remotely responsible.
    But little meaning is left to sections 1451,1453,1454, Bevised Statutes, if incapacity through service does not longer entitle an officer to a higher support than an incapacity for which the government is in no way to blame.
    With what object is the retiring board to report carefully whether the cause is an incident of service, unless some practical distinction in the retirement is to result?
    The rank, possibility in war of active duty, with corresponding pay, has ever been the same with every retired naval officer; but if all distinction of pay is removed, with what purpose should the causes of incapacity be inspected? The revision, to be consistent with claimant’s views, should have simply required the board to report whether the candidate was incompetent. Any further report would be superfluous.
    III. The other ground advanced by claimant is unfounded.
    It is not apparent that any expression of the old law which could aid claimant’s theory has been omitted in the revision. He claims sea pay was awarded him under the act of July 15, 1870 (16 Stat. L., 330). All that is material in that act to such view is found in section 1588. The act was formally repealed .by section 5596, but it reappears complete in its immediate substitute, section 1588. Whatever the act of 1870 ever meant for him is fully expressed in the revision.
    But section 5597 can only apply where section 5596 does, and then to preserve certain rights which had been conferred by expressions in the old law, but which, because omitted in the revision, would by force of section 5596 be otherwise lost by repeal.
    The question always is, without section 5597 would the right be lost by section, 5596? And the answer here is, no; hence, section 5597 cannot be appealed to and does not enter into the controversy.
    The case is entirely one as to the effect of the revision, and as to which of two opposite constructions of the condition of the law is to guide.
    In 1870 the accounting officers of the Treasury, viewing the then Statutes at Large, concluded that the law prescribing furlough pay for such as claimant was no longer operative, but was supplaced by the act of July 15, 1870. In 1874, Congress, viewing the condition of the statutes, declared that the law which fixed furlough pay to claimant and the law of J uly 15, 1870, rvere each in force.
    The question is whether the acceding of the.accounting officers to this legislative construction is to be upheld. Bowen’s Case controls, and the only matter before the court is to give effect to the plain expression of the Bevised Statutes.
    If there is any room in this ease for section 5597, and if the reduction of claimant’s pay can be treated as the effect of the repealing clause of the Bevised Statutes, his retirement in 1868 and allowance at first of one-half sea pay is not such an act done or right accrued, nor would a reduction in pay by virtue-of a change of the law so affect “ the right to any office or change the term or terms thereof” as to be within the saving-clause of section 5597.
    A public office is not a contract. By appointment one acquires, except when the Constitution applies otherwise, not the right to have allowed him the particular compensation which attached at the time of appointment, but only the right to receive such compensation as from time to time may be provided by law.
    In claimant’s view, the Bevised Statutes made no other change as to his office than in its pay. This is an undoubted right of the legislature, as has ever been decided in this court and in every other where the question has arisen. Such legislation cannot be construed to affect or operate upon any right of claimant, either “ accruing or accrued.” (15 Opin., 317.)
   Davis, J.,

delivered the opinion of the court:

By the third chapter of Title XV of the Revised Statutes, it is provided that when a duly organized retiring board finds an officer to be incapacitated for active service, it shall also find the cause which produced the incapacity, and whether it is an incident of the service (§ 1451). The Secretary of the Navy is then required to lay these findings before the President (§1452). On the President’s approval, the officer is to be retired from service ; and, if the incapacity is the result of an incident of the service, the retired officer is to receive retired pay as allowed by chapter 8 of the same title (§ 1453); on the other hand, if the incapacity is not the result of an incident of the service, he is to be retired on furlough pay or wholly retired with one year’s pay, as the President may determine (§ 1454).

As the provisions regulating furlough pay are all contained in the same chapter, 8, it follows that chapter 3 of Title XV contemplates and provides for a difference between the pay of officers on the retired list with retired pay and that of officers on the retired list with furlough pay, and, in fact, though not in form, refers to chapter 8 of the same title for the provisions as to each class of pay. The further provision that the President, the Senate consenting, may transfer any retired officer from the furlough to the retired-pay list (§ 1594) confirms the conclusion that Congress contemplates a difference between the pay of the .two classes.

Turning now to chapter 8 we find the following general provision respecting the pay of retired officers:

“ The pay of all officers of the Navy who have been retired after forty-five years’ service after reaching the age of sixty years, or who have been or may be retired after forty years’ service upon their own application to the President, or on attaining the age of sixty-two years, or on account of incapacity resulting from long and faithful service, from wounds or injuries received in the line of duty, or from sickness or exposure therein, shall, when not on active duty, be equal to seventy-five per centum of the sea pay provided by this chapter for the grade or rank which they held respectively at the time of their retirement. The pay of all other officers on the retired list shall, when not on active duty, be equal to one-balf of tbe sea pay provided by this chapter for the grade or rank held by them respectively at the time of their retirement.”

On its face this applies to all retired officers, and provides an identical rule for those on retired pay and for those on furlough pay; but, proceeding a little further, we find in section 1590 a provision that officers who have been retired as third assistant engineers shall continue to receive pay at the rate of $400 a year; and in section 1593 that officers placed on the retired list on furlough pay shall receive only one-half of the pay to which they would have been entitled if on leave of absence on the active list. No possible force can be given to these sections unless they are treated as exceptions to the broad rule laid down in section 1588, that the unenumerated retired officers shall receive half sea pay. Regarding them as such, we find in section 1593 the provision for the difference in compensation between officers retired on retired pay and those retired on furlough pay, which is contemplated in chapter 3 and in section 1594, viz, the difference between half sea pay and half leave-of-absence pay.

The claimant contends, however, that this conclusion is argumentative, and that, in the most favorable view for the government, the conflict between the provisions of section 1588 and those of sections 1590 and 1593 leave the legislative intent in doubt. He asks us to refer to the original acts in order to interpret the codification.

If we felt doubt as to the intent of Congress we should listen to his suggestion. But we have no doubt that the Revised Statutes enact that an officer retired on retired pay is to be paid according to the provisions of section 158S, and that an officer retired on furlough pay is to be paid according to the provisions of section 1593. Such being the case, we could not turn to the original acts even if it were conceded that they show that the law has been changed in the revision. (Bowen v. The United States, 100 U. S. R., 508).

The claimant further contends that, having been retired before the enactment of the Revised Statutes, he became entitled to compensation at a rate fixed by previous statutes, which is greater than that fixed by the Revised Statutes; and that the general provision in section 5597 that the repeal of previous acts shall not affect acts done or rights accruing under them, but that all rights and liabilities under said acts shall continue, and that the repeal shall not affect the right of any office, or change the term or tenure thereof, protect him in the enjoyment of his salary at the old rate.

Without intimating an opinion as to the .state of the law before the codification, it is a sufficient answer to this proposition to say that the reservation of the right to the office carries with it the obligation to accept, as full compensation for it, such salary as Congress may, under the Constitution, provide for it by law. The Bevised Statutes having fixed the claimant’s compensation in section .1593, the provisions in section 5597 do not refer to it. On the contrary, as they refer in terms to the office from which the salary springs, and do not refer to the salary itself, the expression of the one, by a familiar rule, works the exclusion of the other.

In a recent case this court said: “ With some exceptions Congress may at any time make alterations of the salaries of public officers, to take effect from the passage of the act. The only contract which arises upon a statute establishing a salary is, to pay '’the incumbent of the office that salary while the law remains in force and unchanged.” (Fisher v. The United, States, 15 C. Cls. R., 323.) This is the law for officers on the retired list as well as for those on active duty. Being so, the claimant must accept the salary which the law affixes to his office in full compensation, even though it be, as he contends, less than a previous law allowed him.

The judgment of the court is that the claimants petition be dismissed.

At the same time with the foregoing, the case of Lieut. J. B. Morse was argued and submitted, and the following opinion delivered.

Davis, J.:

This case differs from the last in but two respects: 1st. When the claimant was retired the Bevised Statutes were in force. 2d. The claimant has in accordance with the provisions of section 1593 of the Bevised Statutes been transferred from the retired list on furlough pay to the retired list on retired pay. It is not perceived how either of these facts makes the case more favorable for the claimant.

The judgment of the court is that the claimant’s petition be dismissed.  