
    WILLIAM G. DU BOSE, ADMINISTRATOR OF THE ESTATE OF ROBERT T. JASPER, DECEASED, v. THE UNITED STATES
    [No. E-596.
    Decided April 2, 1928]
    
      On the Proofs
    
    
      Retired pay, Navy; see. 11, act of March 3, 1899, res adjudieata.— Where a commander of the Navy, retired as such September 21, 1899, sued the United States for the retired pay of a captain under section 11 of the act of March 3, 1899, and the Court of Claims decided adversely to his claim, from which decision no appeal was taken, the judgment of the court is res adjudieata against his right to such pay.
    
      Same; retroactive promotion after retirement. — A commission issu'ed by the President September 25, 1925, raising a commander of the Navy, retired as such September 21, 1899, to the rank of captain, effective as of the date of retirement, did not, in the absence of a clear intention on the part of Congress to do so, create a liability on the part of the United States for the corresponding increase in pay.
    
      The Reporter’s statement of the case:
    
      Mr. George A. King for the plaintiff. King dk King were on the brief.
    
      Mr. McClure Kelley, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. Mr. Franh J. Keating was on the brief.
    
      The court made special findings of fact, as follows:
    I. William G. Du Bose, the plaintiff, is administrator of the estate of Bobert T. Jasper, who was an officer on the retired list of the United States Navy and a resident of the District of Columbia at the time of his death, February 16, 1926.
    The decedent entered the United States Navy as a midshipman at the Naval Academy on July 21, 1864, where he remained until June 2, 1868, when his course of instruction was completed. He was promoted to ensign on April 19, 1869; to master (now styled lieutenant, junior grade), July 12, 1870; to lieutenant, October 27, 1872; to lieutenant commander, July 4, 1893, and to commander, March 3, 1899. He remained a commander until September 21, 1899, when he was retired from active service, and from that time to the date of his death he was an officer of the Navy on the retired list.
    II. At the time of his appointment as midshipman July 21, 1864, and thereafter during a part of the period when he was serving as a midshipman at the Naval Academy the Civil War was in progress.
    III. The cause of decedent’s retirement was physical incapacity incident to active service. His record was at all times creditable. »
    IY. From the date of his retirement, September 21, 1899, until the date of his death he received pay only as a commander on the retired list.
    Y. At the time of retirement he claimed the benefit of section 11 of the Navy personnel act approved March 3, 1899, 30 Stat. 1007:
    “'That any officer of the Navy, with a creditable record, who served during the Civil War, shall, when retired, be retired with the rank and three-fourths the sea pay of the next higher grade.”
    YI. He thereafter sued in this court for pay as a captain, United States Navy, retired, since September 21, 1899, less all pay previously paid him as a commander. His petition was dismissed, as was also a subsequent suit.
    YII. After the decision of the Supreme Court in the case of Bear Admiral Jefferson F. Moser was announced November 11, 1924, 266 U. S. 236, affirming 58 C. Cls. 164, the decedent made application to the Secretary of the Navy for a commission as captain on the retired list, to rank as such from September 21, 1899.
    On advice of the Judge Advocate General of the Navy the Secretary of the Navy recommended to the President the issuance of the commission, and said commission was issued by the President on September -15, 1925, effective as of September 21, 1899.
    VIII. The plaintiff therefore claims for decedent’s estate $9,369.80, the pay of Robert T. Jasper, as captain on the retired list from September 21,1899, to the date of his death. This claim was submitted to the General Accounting Office and disallowed.
    IX. This claim is made under and depends upon the following, among other, provisions of statute:
    Act of July 16, 1862, ch. 183, secs. 1, 11, and 15, 12 Stat. 583, 585, 586, providing that midshipmen are line officers on the active list of the United States Navy, and fixing their status and pay.
    Revised Statutes, sec. 1261, fixing the pay of a colonel at $3,500 and of a lieutenant colonel at $3,000 a year.
    Revised Statutes, sec. 1262, providing 10 per cent increase for each five years’ service.
    Revised Statutes, sec. 1263, providing that the increase shall not exceed 40 per cent of the yearly pay of the grade.
    Revised Statutes, sec. 1267, providing that the pay of a colonel shall not exceed $4,500 a year, or the pay of a lieutenant colonel $4,000.
    Revised Statutes, sec. 1453, providing for the retirement of officers from active service on account of incapacity incident to the service.
    Revised Statutes, sec. 1466, providing that a captain in the Navy shall rank with a colonel in the Army and a commander in the Navy with a lieutenant colonel in the Army.
    Revised Statutes, sec. 1556, fixing the sea pay of a captain at $4,500 a year and of a commander at $3,500 a year.
    Revised Statutes, sec. 1588, providing that all officers of the Navy retired 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 receive 75 per cent of their sea pay.
    Act of March 3, 1899, 'ch. 413, sec. 11, 30 Stat. 1007, providing:
    “ That any officer of the Navy with a creditable record who served during the Civil. War shall, when retired, be retired with the rank and three-fourths the sea pay of the next higher grade.”
    Section 13, providing that commissioned officers of the line of the Navy shall receive the same pay and allowances as officers of corresponding rank in the Army.
    Act of June 29, 1906, ch. 3590, 34 Stat. 554, which contains a provision for the benefit of officers who were on the retired list at the date of the passage of that act.
    Act of May 13, 1908, ch. 166, 35 Stat. 127, 128, fixing the rates of pay of captain and commander, respectively, in the Navy, and providing that those rates should apply to officers already on the retired list.
    Act of March 3, 1909, ch. 255, 35 Stat. 753, providing that the act of 1906 shall not operate to deprive any officer of the Navy retired since its passage of the right to increased rank and pay, to which but for the passage of the act of 1906 he would have been entitled.
    Act of March 4, 1911, ch. 266, 36 Stat. 1354, providing “ that commissioned officers of the Army, Navy, and Marine Corps on the retired list whose rank has been or shall hereafter be advanced by operation of or in accordance with law shall be entitled to and shall receive commissions in accordance with such advanced rank.”
    Act of March 4, 1913, ch. 148, 37 Stat. 892, providing “that all officers of the Navy who, since the 3d day of March, 1899, 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 court decided that plaintiff was not entitled to recover.
   Geaham, Judge,

delivered the opinion of the court:

Robert T. Jasper was a commander on the retired list of the United States Navy at the time of his death, February 16, 1926. He was retired because of physical incapacity incident to active service. His record was at all times creditable. At the time of his retirement he claimed the benefit of section 11 of the Navy personnel act, approved March 3, 1899 (30 Stat. 1007), which is as follows:

“ That any officer of the Navy, with a creditable record, who served during the Civil War, shall, when retired, be retired with the rank and three-fourths the sea pay of the next higher grade.”

He thereafter sued in this court for pay as a captain from the date of his refitment, September 21, 1899, less all pay received by him from that date as a commander. His petition was dismissed, as was also a subsequent suit. After the decision of the Supreme Court in the case of United States v. Moser, 266 U. S. 236, decedent applied to the Secretary of the Navy for a commission as captain on the retired list, to date from September 21, 1899. On the recommendation of the Secretary, the President appointed the decedent a captain in the Navy, retired, effective September 21, 1899. The plaintiff therefore sues for $9,369.80, the amount which he claims is due the estate of Robert T. Jasper on account of his advance to the grade of captain.

The opinion of the Judge Advocate General, upon which this appointment was based, held that, inasmuch as the Supreme Court in the Moser case, supra, ruled that Moser’s right to the pay of a retired rear admiral was res judicata by reason of previous decisions of this court, Jasper’s right to increase in pay appeared to be concluded by reason of the adverse decision of this court in 43 C. Cls. 368. In this view of the matter we concur. The opinion states:

“ No appeal was taken in the Jasper case, so that the Court of Claims’ decision adverse to his claim would now appear to be conclusive against his right to the pay of the next higher grade upon the principle of the Supreme Court’s decision that the judgment of the Court of Claims in the Moser case was res judicata in favor of that officer’s right to increased pay.”

The opinion further states: “ The question now presented in Jasper's case is one of rank, not pay,” and that as the department’s decision in favor of Moser’s advancement in rank was applied to Bear Admiral Davenport—

“ It should likewise be applied to Commander Jasper’s application for advancement in rank, leaving the question of his pay to be determined by the accounting officers or the court.”

It is clear, therefore, that the Judge Advocate General’s office attempted to pass upon the question only of the right to advancement in rank and not in pay, and was of the opinion that the advancement in rank under the circumstances did not carry an increase in pay owing to the previous decisions of this court against the decedent’s right to the pay of a captain.

The facts contained in the record in this case and upon which the right to recover is based have been four times before this court in the following cases: Jasper v. United States, 38 C. Cls. 202, 40 C. Cls. 76, 43 C. Cls. 368, and 52 C. Cls. 521. All of these cases were decided adversely to Jasper on the facts as presented in this case except one fact, namely, the issuance to the decedent by the President, upon the recommendation of the Secretary of the Navy on September 15, 1925, of the commission of captain in the Navy, retired, as of September 21, 1899; that is, the appointment was issued in 1925 and effective in 1899. We have, therefore, the question as to the authority of the President to make the retroactive appointment, and, granting this authority, whether the appointment did anything more than establish the rank of the decedent. An increase in pay does not necessarily follow a promotion in rank. They are not dependent upon each other but upon the statutes, which may confer advance fn rank without increase in pay or increase in pay without advance in rank. The previous decisions of this court being adverse to decedent’s right to the pay of a retired captain concluded the question in the negative. Even if the President had authority to make the retroactive appointment by the order of September 15, 1925, the order would not change decedent’s status as to pay. The determining facts in this case are the same as in the cases heretofore decided against decedent, and are not altered by the action of the President in promoting the decedent to captain on the retired list. It would seem unnecessary, therefore, to pass upon the question of the authority of the President to make a retroactive appointment. No statutory authority therefor has been shown. The opinion of the Judge Advocate General advising the promotion of decedent is based upon section 11 of the act of March 3, 1899, 30 Stat. 1007, supra. This act does not in terms authorize a retroactive appointment. It provided only for the rank and pay an officer shall receive when retired. It does not authorize the promotion of an officer already on the retired list. When the decedent was retired, his status as to rank and pay was fixed (Moser v. United States, 58 C. Cls. 164, 166; 266 U. S. 236), and no authority under which he could thereafter be advanced has been shown.

The act of July 1, 1918, 40 Stat. 717, permitting the promotion of naval officers • on the retired list who were called into service during the World War, does not apply here, as Jasper was not called into service during that war and did not serve.

A statute giving authority to appoint to office will not be taken as authority to make a retroactive appointment unless it clearly appears from the language of the statute that this was the intention of Congress. Kilburn v. United States, 15 C. Cls. 41, 47; Collins v. United States, 15 C. Cls. 22, 34; and Bennett v. United States, 19 C. Cls. 379, 386.

There is nothing in section 11 of the act of March 3, 1899, supra, to indicate such an intention. In construing a statute the intention of Congress is in a measure to be ascertained by what it fails to say as well as by what it says: There should be clear authority of law for antedating a commission which, as claimed here, carries with it an additional expenditure of money by the Treasury. There is no authority under the Constitution for an executive officer to create Government liabilities where there has been no authority given by Congress. But, as stated, whether or not there was authority to make this appointment, it could not have the effect of increasing the pay of the decedent.

The plaintiff is not entitled to recover and his petition should be dismissed. It is so ordered.

Moss, Judge; Booth, Judge.; and Campbell, Qliief Justice, concur.  