
    CLINTON D. THURBER v. THE UNITED STATES.
    [No. 26221.
    Decided May 15, 1905.]
    
      On the Proofs.
    
    The .Navy Department issues a circular entitled “Information in regard to the Corps of Civil Engineers,” etc., in which it states in effect that they will'he entitled, when appointed from civil life, to “he credited, for computing their pay, with five years’ service,” under the Navy personnel act, March 3, 1899. The claimant is appointed after the promulgation of this circular. The question in the case is whether civil engineers in the Navy, appointed under the act 3d March, 1903, are entitled to this credit for constructive longevity.
    I. The Act 3d March, 1903 (32 Stat. r,., p. 1197), provides that additional civil engineers and assistant engineers shall receive $1,500 during the first five years after date of appointment, $1,800 during the second five years after such date, etc. The Navy Personnel Act 3(1 March, 1899 (30 Stat. L., p. 1007), provides that “all officers who have heen or may he appointed from civil life shall, on the elate of appointment, he credited, for computing their pay, xoitli five years’ service.’’
    
    II. An assistant civil engineer in the Navy appointed after the circular promulgated by the Navy Department April 20, 1903, assuring persons seeking the appointment of civil engineer that they shall be entitled to he credited with five years’ service, granted by the Navy personnel act, 1899, is entitled to tlie benefit of the credit for constructive service and to the assurance held out by the Navy Department, though the question of statutory construction is not free from doubt.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Clinton D. Thurber, was on the 1st clay of January, 1904, appointed and commissioned an assistant civil engineer in the Navy under the act of March 3,1903 (32 Stat. L., 1197), and accepted the appointment and took the oath of office January 20, 1904.
    Assistant Civil Engineer Thurber was on waiting orders up to and including January 26,1904. On January 27,1904, he reported for duty at the navy-yard, Norfolk, Va., and has been on duty at that yard since that date.
    II. The Navy Department, in a circular entitled “ Information in regard to the Corps of Civil Engineers, United States Navy, in connection with the coming examinations to fill vacancies in the Corps,” issued April 20, 1903, prior to the appointment- of the claimant, stated, after referring to the required examinations for appointment:
    “Appointees to the grade of civil engineer will enter the corps with the rank of junior lieutenant and pay of $2,700 per annum. At the end of five years the pay will be increased to $3,000 per annum and at the end of ten years to $3,500 per annum.
    “Appointees to the grade of assistant civil engineer will enter with the rank of junior lieutenant and pay of $1,800 per annum, increasing to $2,100 at the end of five years.”
    The amount last stated for the pay of an assistant civil engineer on entering the service is that provided by the act of March 3, 1903, for an assistant civil engineer during the second five years after date of appointment owing to' five years’ constructive service allowed to officers appointed from civil life by the navy personnel act, section 13, third proviso.
    III. The claimant while on waiting orders from January 20 to January 2G, 1904, was paid at the rate of only $1,000 a year. Since going on active duty, January 27, 1804, he has been paid only at the rate of $1,500 a year, instead of at the rate of $1,800 a year, as stated in said circular, on the ground, as decided by the Comptroller of the Treasury, that the provision in the act of March 3, 1899, granting five years’ constructive service to all officers who have been or may be appointed to the Navy from civil life has no application to assistant civil engineers appointed under the act of March 3,1903.
    
      Mr. George A. King for the claimant. Messrs. George A. <& William B. King were on this brief.
    ■ Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Per CuRiAM:

The claimant, Clinton B. Thurber, was, on January 1, 1904, appointed and commissioned from civil life as assistant engineer in the Navy. The oath of office was administered January 20, 1904, and he entered upon active duty January 20, 1904, with the rank of junior lieutenant. His appointment was made under the Act March 3, 1903 ( 32 Stat. L., 1197) :

“ The grades of the active list of the Navy hereinafter designated shall be so increased that there shall be * * * one additional civil engineer, in all twenty-eight; and twelve assistant civil engineers, of whom six shall have the rank of lieutenant (junior grade) and six the rank of ensign: Pro vided, That assistant civil engineers, during the first five years after date of appointment, shall receive, per annum, when on duty, $1,500; when on leave or waiting orders, $1,000; during the second five years after such date, when on duty, $1,800; when on leave or waiting orders, $1,200; and after ten years from such date, when on duty, $2,100; and when on leave or waiting orders, $1,400: And provided f arther, That promotions in the corps of civil engineers shall be after such examinations as the Secretary of the Navy may prescribe.”

The claimant contends, under section 13 of the act of March 3, 1899, known as the navy personnel act, 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 therefore he is entitled to constructive-service pay upon the basis of the amounts fixed by the Congress in the act of March 3, 1903; that in effect the act of March 3, 1903, did not by implication render inapplicable section 13 of the act of March 3, 1899, in so far as claimant’s salary is concerned, and this contention appears to be sustained by the fact that contemporaneously with the passage of the act, to wit, on April 20, 1903, the Navy Department issued a public circular adopting this construction and inviting enlistments under its terms. That circular provided, among other things:

“Appointees to the grade of civil engineer will enter the corps with the rank of junior lieutenant and pay of $2,700 per annum. At the end of five years the pay will be increased to $3,000 per annum and at the end of ten years to $3,500 per annum.
“Appointees to the grade of assistant civil engineer will enter with t'he rank of junior lieutenant and pay of $1,800 per annum, increasing to $2,100 at the end of five years.”

The services of the claimant were enlisted after the promulgation of this construction of the act and no doubt under the belief that its terms would be fully complied with. While we entertain some doubt as to the correctness of this ruling, we are inclined to follow the construction so given by the Navy Department.

The judgment of the court is that the claimant recover $1S2.50.  