
    WALTER A. WILEY v. THE UNITED STATES.
    [No. 23297.
    Decided May 15, 1905.]
    
      On the Proofs.
    
    The only question in this case is whether ail officer in the Revenue-Cutter Service is entitled, under the act of 2d March, 1901, to the 10 per cent increase allowed to all officers “ serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto.’’
    
    I.By the Act 12th April, 1902 (32 Stat. L., p. 100, § 3), the compensation of officers in the Revenue-Cutter Service is “ the same pay and alloivances, except forage, as are now or may hereafter be provided by law for officers of corresponding rank in the Army, including longevity pay.”
    
    II,An officer in the Revenue-Cutter Service is not entitled to the increase of 10 per cent allowed to officers in the Army “ serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto ” because he served in Alaskan waters.
    III.The Revenue-Cutter Service implies in the main service on the water,'and such service is the normal duty of such officers; and the fact that the place of service is remote, like the waters of Alaska, does not change the service from normal to exceptional. The decision, and application thereof, of the Supreme Court in the case of Thomas (195 U. S. R., 418) reviewed.
    
      The Reporters' statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant, Walter A. Wiley, was appointed a cadet in the Revenue-Cutter Service November 15, 1895, and has served continuously therein ever since. He was appointed and commissioned a third lieutenant in said Service March 25, 1898, and a second lieutenant March 17, 1902, and is still such second lieutenant.
    II. On the 14th of April, 1902, the claimant was ordered to report for duty on the revenue steamer Perry. By order of the Secretary of the- Treasury said steamer left Port Townsend, in the State of Washington, June 20, 1902, for duty in the enforcement of the laws for the protection of the salmon fisheries of Alaska, in addition to duties in connection with the customs service and navigation laws. Her instructions were to visit the canneries situated between Metlakahtla, Anette Island, and Kuskokwim River; to touch at Sitka, Dutch Harbor, and Ketchikan, Alaska, for coal, water, and other purposes; to board and examine all vessels at the different places visited, and to examine the certificates of Chinese laborers and look out generally for violations of the Chinese-exclusion laws.
    Said steamer left Port Townsend, Wash., June 20, 1902, for the performance of the above-named duties by her commanding and other officers in the waters of Alaska. After the performance of such duties by her officers on the cruise to which she had been ordered, she returned to Port Townsend, Wash., arriving there October 2, 1902.
    On the 9th day of July, 1903, the revenue-cutter steamer Rush was ordered to go to various points in Alaska.
    On the 21st of July, 1903, she sailed from Seattle, Wash., for duty in the enforcement of the laws of the United States in the district of Alaska.
    The orders sent to the commanding officer of said steamer early during her cruise contained the following:
    “ 3. Generally speaking, your cruising grounds will extend from Sitka westward about three hundred miles; from Sitka northward to Juneau and to Skagway or the head of Lynn Canal, and southward about three hundred miles from Sitka.
    “ 4. The following points in your cruising must be visited as opportunity offers or exigencies may require: Hunters Bay, Klewak, Water Island, Santa Aha Inlet, Yes Bay, Point Ellis, Copper Mount, Shakan, Sitkoln Bay, Dundas Bay, Karta Bay, and such other points or places as may be necessary to enable you to thoroughly acquaint yourself with conditions within your cruising ground.”
    She performed the duties imposed upon her by her orders, cruising through the waters of Alaska, generally in inland passages and within 3 miles of the coast.
    After the performance of these duties she returned to Seattle, arriving there on the 30th of June, 1904. She again left Seattle on the 4th of July, 1904, for Alaska and Alaskan waters, as previously, and returned to Seattle on the 24th of July, 1904.
    The claimant was on each of said steamers Perry and Rush during their respective cruises, as above described, and took part in the performance of the duties stated. During the three several intervals hereinbefore described he was continuously serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto.
    Under section 2754 of the Revised Statutes, and paragraph 862 of the Revenue-Cutter Service Regulations prescribed in conformity therewith, the Secretary of the Treasury allows to petty officers and seamen of the Revenue-Cutter Service rates of wages at least 20 per cent higher in Alaska than on the Atlantic coast.
    III. During all the time of the cruise set forth in the second finding, the claimant was in receipt of the pay fixed by section 1261 of the Revised Statutes as applied to the Revenue-Cutter Service by the act of April 12, 1902, sections 2, 3, for a first lieutenant, not mounted, in the Army, fifteen hundred dollars ($1,500) a year, plus one longevity increase of one hundred and fifty dollars ($150) under section 1262, making a total rate of pay of sixteen hundred and fifty dollars ($1,650) a year until February 7, 1904, on account of an additional longevity increase of $150 in the third five jrears of service.-
    The claimant submitted a claim to the accounting officers of the Treasury for an. increase of 10 per cent on his entire pay, including longevity pay, while serving on the Perry, constituting a portion of the present claim for “ serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto,” under the act of March 2, 1901.
    If entitled to such increase of 10 per cent as claimed, the amount to which he would be so entitled would be $219.47.
    IY. It has been the practice of the Pay Department to pay officers of the Army serving on board United States Army transports the 10 per cent increase of pay provided for by act of March 2,1901, from date of departure from the United States to elate of their return to, inclusive.
    
      Since May 26, 1900, army officers serving on army gunboats in the Philippines have been paid the 10 per cent increase provided for by the acts of March 2, 1901, and May 26, 1900.
    An army transport engaged in laying a cable was in service in Alaskan waters during a portion of the time the claimant was there with commissioned officers thereon.
    
      Messrs. George A. c&- 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 herein is a second lieutenant in the Revenue-Cutter Service. By section 3 of the act of April 12, 1902 (32: Stat. L., 100), the compensation of officers in the Revenue-Cutter Service is “ the same pay and allowances, except forage, as are iioav or may hereafter be provided by law for officers of corresponding rank in the Army, including longevity pay.”

The pay of officers of the Army is fixed by Revised Statutes, section 1261, and that of a first lieutenant not mounted,, which corresponds to a second lieutenant in the Revenue-Cutter Service, is $1,500 per annum.

The claimant contends that as his pay and allowances are-the same as officers in the Army of corresponding rank, therefore he is entitled, under the act of March 2, 1901 (31 Stat. L., 903), to the 10 per cent increase thereby allowed to all officers * * * serving beyond the limits of the States comprising the Union and the territories of the United States contiguous thereto.” It is not shown that the officers-in the Revenue-Cutter Service perform any duties now different from what they did prior to the passage of that act.

This question in respect of the right of naval officers to recover the increase of 10 per cent while performing sea service, under a like statute fixing their pay and allowances,, was considered in the case of United States v. Thomas (195 U. S., 418), reversing this court on that point (38 C. Cls. R., 413), and the court ruled against the claimant’s right to recover on the ground that it was “ the natural and normal duty of navy officers to engage in sea service, cruise in foreign waters, and lie up in foreign ports.” That it was never the intention of the Congress, says the court, “ 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.”

Is that ruling applicable to an officer in the Revenue-Cutter Service? By the act of July 27,1868 (15 Stat. L., 246), now in part Revised Statutes, section 1954, respecting the unorganized territory of Alaska, “ The laws of the United States relating to customs, commerce, and navigation ” were extended to and over all the mainland, islands, and waters of the territory ceded to the United States by the Emperor of Russia by the treaty of March 30, 1867. But it is contended that the duties of officers of the Revenue-Cutter Service are defined by Revised Statutes, sections 2760 and 2761, confining their ordinary or normal duties to the United States and territories contiguous thereto, and that therefore when ordered to Alaska such service is exceptional within the decision in the Thomas case and entitles such officers to the 10 per cent increase.

But we think the sufficient answer to this contention is that by Revised Statutes, section 2762, such officers may, in addition to the duties therein prescribed, be required to perform “ such other duties for the collection and security of the revenue as from time to time shall be directed by the Secretary of the Treasury, not contrary to law.”

The Revenue-Cutter Service implies, in the main, service on the Avater, and therefore it may be said to be the normal duty of the officers in that sendee.

“ The intention of Congress,” says the court in the Thomas case, “ was evidently to put officers of the Army and Navy on the same footing with respect to their general pay, and 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 1261, a like increase should apply to navy officers. It does not, however, follow that Congress may not'increase the pay of arnw 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.” That ruling is equally applicable to officers in the Revenue-Cutter Service.

Our attention has not been called tc any appropriation, nor are we aware of any that has been made, to pay the additional 10 per cent to officers of the Revenue-Cutter Service, and this, as mentioned in the Tliomas case, may be regarded as significant in that the Congress did not deem such officers entitled to the extra pay.

That the service of such officers serving in Alaska and in Alaskan waters is more expensive and attended with more hardships, there can be no doubt, but we are unable to see any distinction between this and the Thomas case respecting naval officers, and the claimant’s petition must therefore be dismissed.  