
    DENNIS H. MAHAN v. THE UNITED STATES.
    [No. 23187.
    Decided December 5, 1904.]
    
      On the Proofs.
    
    A naval officer while on shore duty at a naval station is ordered by the Secretary of the Navy to report to the commandant of that station for the command of a receiving ship. It is stated in the order that “ th is service is in addition to your present duty.” The officer continues to live on shore in quarters provided for him by the Government. He wears his uniform when on duty, and the ensign, jack, and pennant are flown on board the vessel according to the Regulations.
    I. Officers of the Navy may perform duty on a receiving ship, which will entitle them to sea pay, but only where they wear their uniform when on duty, live and mess on board the vessel, and are subject to all the restrictions and regulations applicable to vessels at sea. But an officer also having shore duty, living and messing on shore in quarters furnished to him by the Government, and presumably receiving the allowances to which Army officers are entitled is entitled only to the shore-duty pay prescribed by the Navy personnel act (30 Stat. L., p. 1007, § 13). The cases reviewed where sea pay may be recovered.
    
      II. Under the Navy personnel act the normal pay of officers in the Nary is sea pay, and the exceptional pay is for shore service. Where an officer performs shore duty and receives shore pay, he is not entitled to the normal pay.
    
      The Re-porters’’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant is an officer of more than twenty years’ service in the Navy, and on the 11th clay of May, 1898, .reached the rank of lieutenant-commander, and on the 3d-clay of March, 1901, that of commander, and has ever since been a commander in the Navy.
    II. On the 9th claj»- of January, 1901, while he was on duty at the Puget Sound Naval Station at Bremerton, in the State of Washington, in obedience to the following order of the Secretary of the Navy, elated January 2, 1901, he reported to the commandant of said station:
    “ Report to the commandant of the Puget Sound Naval Station, Bremerton, Wash., for the command of the U. S. S. Nipsic. This duty is in addition, to your present duties.”
    He assumed command of the U. S. S. Nipsic, then stationed at Puget Sound Naval Station as a receiving ship. Some question having arisen in relation to the status of said vessel, the following order of the Secretary of the Navy was made relative thereto: .
    “ Navy Department,
    “ Washington, July %5,1901.
    
    “ SiR: Referring to your letter of November 19, 1900, recommending the establishment of the U. S. S. Nipsic as a receiving ship, you are informed that the Department will regard the Nipsic in the future as a receiving ship, and that her duty as such will be considered as having begun on January 9, 1901.
    “ Very respectfully,
    
      “ J. D. Long, Secretary.
    
    “ Commandant, Puget Sound Naval Station,
    “ Bremerton, Washington.”
    
    The claimant continued in command of the U. S. S. Nip-sic until the 3d day of October, 1901.
    III.During the time that claimant commanded the Nipsic lie did not live on board or mess there, no servants being-allowed to the ship such as are commonly allowed to the commanding officers of vessels.
    There were quarters on shore unoccupied at the time, and in these quarters he lived. Claimant, while in command, always wore his uniform when on duty. The ensign, jack, and pennant were flown according to regulations from the receipt of the order from the Secretary of the Navy stating that the ship was considered as being in commission from January 9, 1901, the day on which the claimant took command.
    There were supplies on board belonging to the various bureaus of the Navy Department, of which he had charge. The regular returns for the ship’s company, for the enlisted men thereon, and all other returns were made out and transmitted by the claimant. He enlisted, while in command of the vessel, 175 men for the general naval service and for the apprentice service of the Navy. He administered oaths to all the men so enlisted under the provisions of the acts of January 25, 1895, and March 3, 1901. He attended to their transfer from his ship to the receiving ship Independence at Mare Island or to the training station at San Francisco. He had a regular crew on board, consisting of 13 seamen and others, from the day on which he took command to the clay on which the Secretary’s letter was received ordering the ship to be considered as having been in commission, and on that date the complement of the ship ivas increased to 32 men, over whom the claimant had command.
    All regulations applicable to such a receiving ship were observed; she was moored alongside the wharf assigned for her occupancy; the members of the crew had regular duties during the day, and watch was kept all the time, clay and night; steam was always kept up for heating and pumping, and steam launches attached to the ship for the uses of the station and navy-yard were taken care of. The crew was exercised in different drills and was required to keep the ship in nice order, not only around the deck, but in the engine room and firerooms.
    The only other duties of the claimant besides those of com-mancling officer- of the Nipsic were as equipment officer and ordnance officer, in both of which capacities his duties were hardly more than nominal; from May 4, 1901, as president of the board for the trial of the Goldsborough, this duty covering about four days; and from May 9, 1901, as inspector of equipment at the works of Moran Brothers, shipbuilders, these duties occupying two or three hours on from one to three days in the month. With these exceptions his duties as commanding officer of the Nipsic occupied all his time.
    IV. From January 9 to March 2, 1901, the claimant was paid as a lieutenant-commander of over twenty years’ service on shore duty at the rate of $2,975 a year, being 15 per cent less than the pay of such lieutenant-commander on sea duty at $3,500 a year. From March 3, 1901, to October 3, 1901, the claimant was paid as a commander of over twenty years’ service on shore duty at the rate of $3,400 a year, being 15 per cent less than the pay of such commander oil sea duty at $4,000 a year. The difference between the shore pay already received by the claimant and full or sea pay for the period from January 9 to October 3, 1901, would amount to $428.75.
    
      Messrs. George A. and 'William B. King for the claimant:
    The specific question of the status of an officer on a receiving ship was presented to this court and the Supreme Court in the case of Strong v. United States (23 C. Cls. B., 10; 125 U. S., 656).
    In that case this court and the Supreme Court followed 'their previous decisions in the cases of Symonds v. United States and Bishop v. United States (21 C. Cls. B., 148, 215; 120 TJ. S., 46, 51), deciding that service on a training ship was sea service and entitled an officer serving on such a ship to sea pay.
    Still more directly in point is the case of Wyckojf v. United States (34 C. Cls. B., 288), a claim for sea pay for commanding this very same vessel, the Nipsic.
    The latest expression of the views of this court is that given in the case of Albert G. Engard v. The United States (38 C. Cls. B., 712).
    
      This case is stronger than the Engarcl case for the following reasons:
    1. The Engarcl case arose under the old law which allowed one rate of pay “ when at sea ” and another “ on shore duty,” while the present case arises under the terms of the personnel act, which, in the enacting clause of section 13, allows one rate of pay without qualification of the character of the duty, and in a proviso fixes another and lower rate “ when on shore.”
    2. During the time covered by the recovery in the Engard case the claimant was not actuallj'- on shipboard at all. But it was held that a mere temporary assignment to shore duty being in express terms in addition tó his present duty, as it could not exempt him from continued responsibility for his duties on the vessel, so also could not deprive him of the right to sea pay even for the brief period of temporary absence from his vessel. In the present case the claimant was not released for a single day from attendance on shipboard and responsibility for the performance of all his duties there.
    It is quite apparent from the decision in the Engard case that the test made in some previous opinions of this court as to whether sea duty or shore duty is paramount, is one which can not be applied in practice. Where the law allows payment for two services at different rates, and the claimant can receive only one of the compensations, he is entitled to the higher. (Webster v. United States, 28 C. Cls. R., 25; Winchell v. United States, 28 C. Cls. R., 30.)
    An officer assigned to the double service of sea duty and shore duty can not justly be deprived of the compensation of the higher of the two services.
    This court has, in McGowan v. United States (36 C. Cls. R., 63) and Taussig v. United States (38 C. Cls. R., 104) formulated a test for sea or shore pay, consisting in the question whether the duty at sea or on shore is paramount.
    According to this rule, an officer having sea duty occupying three hours a day in its performance, and having all the rest of the day off duty, is clearly entitled to sea pay. But if, to his sea duty of three hours, there is superadded shore duty occupying six hours, bis pay will thereafter be reduced 15 per cent, solely because of the added duty.
    No better criticism on a theory leading to such a result can be made than the expression of this court in Butler v. United States, 23 C. Cls R., 162, 166) :
    “ Such a conclusion, in the lack of statutory provision to the contrary, seems to us unjust, for it results in reducing compensation as labor increases.” (United States v. Bassett, 2 Story, 389.)
    There is a peculiar reason in the case of officers of the Navy for ajoplying a rule which shall be intelligible and easy of application. The officer himself has current ■ expenses to meet and for these expenses he is supposed to use his current pay. From the standpoint of the officer, therefore, it is but reasonable that when assigned to any kind of sea duty he should receive sea pay; that is, the ordinary and normal pay of an officer of the Navy fixed by the enacting clause of the statute prescribing pay in the Navy. From the standpoint of the paymaster it is even more important. The statutes regulating pay in the Navy are primarily to be applied, not by the courts, but by the pay officers of the Navy. These officers apply them at their peril. If they make a wrong-payment the amount will be stopped against them in their accounts, and while it will be checked and ultimately recovered back against an officer still in the service, this can not be done where the officer has gone out of the service by death, resignation, or dismissal.
    The character of the officer’s duty with reference to the respective paramountcy of sea or shore duty is not before the paymaster. He-must abide by the record. He can not take testimony on the subject, and if he does so, he has neither the knowledge of law to enable him to decide whether one or the other is paramount, nor the legal power to carry out his decision. The Comptroller of the Treasury has felt this difficulty and has attempted to apply the decisions of this court by laying down a plain and intelligible test of paramountcy. This test consists in the place where the officer messes and quarters. If his mess and quarters are on shipboard, his sea duty is paramount. If on shore, his shore duty is paramount. (Decision of June 11, 1903, 9 Comp. Dec., 763.) In other words, the character of an officer’s duty is to be determined by what he does when off duty. This ruling meets the requirement of plainness and intelligibility, but it has no other merit. This court has decided that it is immaterial to the Government what an officer is doing when off duty, even though he be in official uniform, and in that capacity subject to some obligations and restrictions of official position. (King v. United States, 32 C. Cls. E.', 234.) Of these difficulties and contradictions the law itself furnishes the best solution. The enacting-clause of section 13 of the personnel act gives to line officers of the Navy the same pay as officers of corresponding rank in the Army. Of this they can be deprived only by bringing them clearly within the terms of some exception or proviso. The first proviso reduces this pay by 15 per cent “ when on shore.” In this case he worked at sea and he slept on shore. The duty is the test of pay. To disentitle the officer to the full army pay of his grade there must be a distinct assignment to shore duty, as contemplated by the act of 1883, March 3 (ch. 97, sec. 2, 1 Supp. E. S., 402), and this assignment must be exclusive of all sea duty.
    In the present case the paymaster had before him an order assigning the claimant to the command of a receiving ship of the Navy. This order should have been a sufficient warrant to the paymaster to pay sea pay and to the claimant to retain it when paid.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    In the Symonds ease (21 C. Cls. E., 148) the court said:
    “ The legal essence of things can not be changed by a mere name — by the volition of an executive officer in the discharge of executive duty.”
    And in the McGowan ease (36 C. Cls. E., 63) and the Taussig ease (38 C. Cls. E., 104) the court formulated a test for sea or shore pay and made that test the question as to whether the duty on sea - or shore is paramount. However the order may read designating the service, where the officer is performing- two kinds of duties if his duties on shore are paramount to his duties at sea he is to receive compensation accordingly, while if his duties at sea are paramount to his shore duties he should receive sea pay. In other words, the actual work performed, the duties required of the officer, the responsibilities devolving upon him, and the time' consumed in the discharge of his duties, in right and justice, as between the United States and the officer, should govern the character of his pay.
    This is now the well-settled principle followed by this court and recognized by the Department as the equitable, lawful, and just basis upon which to determine the character of the pay the officer should receive. To overturn this doctrine would put it entirely within the power of the Bureau of Navigation in the Navy Department to declare almost any kind of service shore service where the officer was performing two kinds of service, and the officer would be necessitated to be content with shore pay when as a matter of fact he may have spent the greater portion of his time performing sea service proper.
   Peelle, J.,

delivered the opinion of the court:

The claimant, an officer in the United States Navy, while on shore duty at the Puget Sound Naval Station, was ordered by the Secretary of the Navy to report to the commandant of that station “ for the command of the U. S. S. Nipsic,” a receiving ship, stating in the order that “ This service is in addition to your present duty.” The claimant, in obedience to the order, reported to the commandant and from the date of the order, January 9, to October 3, 1901, performed the duties under both assignments.

During the period stated the claimant lived on shore in quarters provided for him by the Government. No servants, such as are usually allowed to the commanding officers of vessels, were allowed to the ship. The claimant when on dutjr wore his uniform, and from the date of the order of the Secretary of the Navy (July 25, 1901), stating that the ship would be considered as a receiving ship from the date of the order assigning him to the command of the Nipsic, the ensign, jack, and pennant were flown according to the .regulations of the Navy Department.

Two questions are presented: First, Was the claimant’s service as commander of the vessel sea service within the meaning of Revised Statutes, section 1571, providing that “No service shall be regarded as sea service except such as shall be performed at sea under the orders of a Department and in vessels employed by authority of law ?”

Second, Whether if such service was sea duty the claimant is entitled to sea pay, notwithstanding during such period he performed in addition thereto the shore service to which he had previously been assigned ?

That an officer of the Navy may perform sea duty entitling him to sea pay on a receiving ship or recruiting vessel, under certain conditions, has been frequently decided both by the Supreme Court and this court; but do these conditions exist in the present case?

In the case of Symonds v. United States (120 U. S., 46, 51) the court, affirming the judgment of this court (21 C. Cls. R., 148), held that sea pajr might “ be earned by services performed under the orders of the Navy Department in a vessel employed, with authority of law, in active service in bays, inlets, roadsteads, and other arms of the sea, under the general restrictions, regulations, and requirements that are incident or peculiar to service on the high seas.” The vessel in that case was anchored in Narragansett Bay during the whole period for which sea pay was claimed, and was not in condition to be taken out to sea beyond the mainland. The vessel was a training ship subject to the regulations which would have been enforced had the vessel been used for cruising or as a practice ship. The claimant was required to live and mess on board. For the reason stated, the court held that he was, while in the performance of such service, on sea duty and entitled to sea pay.

That case was followed in the like case of United States v. Bishop (120 U. S., 51). The vessel in that case was also a training ship “ stationed in the harbor of New York, cruising and moving about under her own power, her machinery and equipment were kept in order, and she was perfectly seaworthy, capable, upon short notice, of being used in. a protracted cruise,” and the duties of her “ executive officer were more arduous and confining than those of officers in similar grades upon vessels in foreign waters.”

In the case of United States v. Strong (125 U. S., 656) sea pay was allowed for service performed as executive officer on a recruiting ship anchored in a port at a navy-yard, not in commission for sea service, on the ground that the duties of such officer were not only similar to those of executive officers on cruising ships, but in addition thereto such officer performed other duties “ more exacting and arduous than those on cruising ships; ” and was required to have his quarters on board and to mess there, to wear his uniform, and “ was not permitted by the rules of the service to live with his family.”

In the case of United States v. Barnette (165 U. S., 174) the officer was assigned as executive officer of a Government, vessel furnished by the Navy Department, under an act of Congress, to the State of New York, as a school-ship. The vessel cruised for about five months in the year and the remainder of the time was attached to a dock in the harbor of New York. “ While she was not cruising, the claimant lived on board, and Avas on duty on board every day, wearing his uniform and doing the same duty, and subject to the same regulations as while the ship was on the high seas; and in the matter of quarters, mess, and uniform there was no difference, whether the vessel was under sail, or lying at anchor, or tied to a wharf.” For these reasons the court, affirming th'e judgment of this court (30 C. Cls. R., 197), allowed sea pay.

In the case of Wykoff v. United States (34 C. Cls. R., 288) an officer while in command of the naval station at Puget Sound was ordered by the Secretary of the Navy to the command of the Nipsic, the vessel here in controversy, and retained command of her until ordered before a retiring-board. The force on the vessel was in the employment of the Bureau of Yards and Docks, and all regulations applicable to a vessel at sea were observed. The officer wore his uniform when on duty and had his quarters continuously on hpard and messed there.

To the same effect also is the case of Taussig (38 C. Cls. R., 104).

In all these cases it will be noted that the officers not only were their uniforms when on duty, but lived and messed on board their respective vessels while so employed and were subject to all the restrictions, regulations, and requirements of the Department applicable to vessels in the open sea.

In the present case the claimant neither lived nor messed on board, nor were servants allowed to the vessel. On the contrary, he lived and messed on shore in quarters furnished to him by the Government, and he presumably received the other allowances to which he was entitled; and to hold that under such circumstances the claimant’s service was performed in a vessel subject to the restrictions, regulations, and requirements incident or peculiar to service on the high seas would, in effect, nullify the first proviso to said section 13.

The liberal construction which has been given to section 1511 can not be applied to the present case without practically nullifying the section. It was certainly not the purpose of the Congress by section 13 of the act of 1899 to repeal that section, though that doubtless would have been the result but for the first proviso thereto. The Congress in fixing the compensation for naval officers had long recognized the dangers incident to sea service, and for that reason made a difference in the pay of officers for service at sea and on shore. And that distinction is preserved in section 13 of the act of 1899..

Let us again examine that section, 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 * * * .”

It will thus be noted that the officers named in that section, of which the claimant is one, are by the enacting clause given but one rate of pay — i. e., “ the same pay and allowances, except forage,” as that given to officers of corresponding rank in the Army, and but for the proviso thereto — “ that such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty ” — they would have been entitled to sea pay whether on sea or shore duty. The proviso, therefore, carves out of the enacting clause the exceptional pay based wholly on shore service. It follows, therefore, that while the normal pay of officers in the Navy is sea pay, as we held in effect in the Ryan case (38 C. Cls. R., 143, 147), the exceptional pay is for shore service, thus showing, we think, beyond question, that the purpose of the Congress by the act of 1899 was not to repeal section 1571. That being so, we must adhere to the meaning of that section as construed by the Supreme Court and this court in the decisions cited.

The petition is dismissed.  