
    KELTON E. FOWLE v. THE UNITED STATES.
    [No. 22384.
    Decided May 6, 1901.]
    
      On the Proofs.
    
    The question involved in this case is whether a surfman in the Life-Saving Service disabled by reason of an injury received “in the line of duty ” while in the service, forfeits his statutory right to his pay “during the continuance of such disability, not to exceed the period of ' one year ” by not applying for it until after the expiration of the year of his enlistment.
    I.The plain purpose of the Act 4th May, 1882 (22 Stat. L., p. 57, §7), is that when a keeper or member of a crew in the Life-Saving Service is disabled in the line of duty, and the disability is determined in the manner prescribed by regulations, he shall be kept upon the rolls and continue to receive his pay. His right can not be defeated by the officers of the service refusing to reenlist him at the end of his year of service because of the disability.
    II.The statute does not make the right conditional upon the filing of an application. Nor do the regulations; nor could they.
    III. Eegulations may supplement a statute, but can not supersede it.
    IV. Where the disability of one in the Life-Saving Service is duly ascertained and declared and he is laid off for that reason, there is no necessity for his application being filed before the expiration of his term of enlistment.
    
      The Reporters’, statement of the case;
    The following are the facts of this case as found bv the court:
    I. The claimant, Kelton E. Eowle, enlisted as a surfman in the Life-Saving Service of the United States at Fletchers Neck station, Maine, in 1896, and reenlisted in 1897 and 1898, passing the physical examination for the same on each occasion.
    His compensation was at the rate of §600 a year.
    His last term of service was to expire August 1, 1899.
    H. Late in the winter of 1898-99 the claimant developed a disability in his legs, caused by hard walking in the performanee of patrol dutjT, which is done on the beach for four hours at a time.
    The disabilitj7 became more pronounced in the following May, at which time the claimant had been at work painting the station. There was a swelling in the veins of his legs, causing pain and a feeling of stiffness after walking.
    By the advice of the keeper of the station he consulted a physician. This physician found a varicose condition of the veins from the ankle to the groin on the right leg, and from the ankle to the knee on the left leg; and declared that the disability was caused by being on the feet too much, producing dilatation of the veins. He prescribed an elastic stocking and rest.
    The claimant thereupon remained off on sick leave for thirteen days, at the end of which time, having procured the elastic stocking prescribed, he returned to duty, and finished out the term of his enlistment.
    On the 5th of June, 1899, he went with the keeper of the station to Portland, Me., to be examined by the regular medical examiner for the Life-Saving Service, Walter E. Merrill, surgeon, Marine-Hospital Service. Said surgeon stated the result of his examination as follows:
    “That he is not fit for duty for the following reasons:
    ‘ ‘ That he is not physically sound. His physical defects are:
    ‘ ‘ Extreme varicose condition of veins in right leg, extending from foot to groin; also enlarged veins in left leg; otherwise in good physical condition. His condition at present would not in my judgment warrant further employment on above account.”
    On the 24th of July, 1899, the entire crew of the station, accompanied by the keeper, and including the claimant, went to Portland to be examined for reenlistment. The surgeon thus certified the result of his examination on that date:
    “Office of Medical Officer in CommaNd,
    ‘‘ Marine-Hospital Service,
    “ Portland, Maine, Jxdy &£, 1899. uTo whom it may concern:
    
    “This is to certify that I have this day examined-Mr. Kelton E. Fowle and find him unfit for duty as surfman in U. S. Life-Saving Service, to wit:
    “Varicose veins in lower extremities, extending from femoral opening to ankles and involving both internal and external saphenous veins in both legs.
    “(Signed) Walter E. Merrill,
    
      “Asst. Surg., U. S. M. H. S.”
    
    On the same date he reported to the Life-Saving Service on the claimant’s application for reenlistment as follows:
    ‘ ‘ His physical defects are varicose veins extending from femoral opening to ankles in both legs.”
    In accordance with this certificate the claimant was rejected for reenlistment.
    As late as November 10, 1900, the disability continued unchanged, and this condition is likely to be permanent.
    III. Before the expiration of the claimant’s term of enlistment, August 1, 1899, he spoke to the keeper of his station about making application for the benefit of section 7 of the act of May 4, 1882 (1 Supp. K. S., 341). The keeper, however, advised him to wait till his term was out and then make out his papers and send them in. He did so because he knew of no limit of time for the application and had in fact had two such cases before where no such limit was placed upon it.
    Said keeper also spoke to the general superintendent about it during the summer, as well as to the General Superintendent of the Life-Saving Service, Mr. Kimball, who was at the station in August, and he said to make out and send on the papers. Neither of them said anything about any limit.
    No limit of time was in fact prescribed by the regulations of the Life-Saving Service in regard to applications under said section 7.
    Afterwards the claimant was delayed in making application by the absence of the only local magistrate, who was temporarily engaged in business at some distance. The magistrate having returned, the claimant made an application October 12, 1899, supported by testimony showing that his disability was incurred in the service, was still continuous, and was likely to remain indefinite. The application was sent to the General Superintendent of the Life-Saving Service, who in due course referred the same to the superintendent of the First district, who reported that from inquiries made while at the station, both before and after the claimant’s rejection for reenlistment by the examining surgeon, be was satisfied that the claim was just. Dr. Walter E. Merrill, surgeon, Marine-Hospital Service, also certified, February 7, 1900, as follows:
    “This.is to certify that Kelton E. Fowle, disabled June 5, 1899, of the Fletcher Neck Life-Saving station, 1 District, has been continuously unfit for duty from August 1,1899, to Feb. 7, 1900, by reason of disability arising from varicose veins, and was disabled, contracted in the line of duty in the LifeSaving Service. I describe his disability as follows: Right leg from ankle to groin, left leg from ankle to kee. I further certify that I pronounced him fit for duty-, 18 — .
    “I further certify that I have this day personally examined said Kelton E. Fowle, and find his exact physical condition to be as stated below:
    ‘‘ 1. He is now suffering from varicose veins of both legs, as per above, which renders him unfit for the performance of duty in the Life-Saving Service.
    “ 2. He has been continuously unfit for the performance of such duty by reason of disability since August 1, 1899, the date Feb. 7, 1900.
    “3. His disability will probably continue indefinite.”
    The application was then submitted to the Supervising Surgeon-General of the Marine-Hospital Service for his opinion as to the sufficiency of the medical evidence, and was returned by him February 24,1900, “with the opinion that the medical evidence of disability herewith submitted should be considered sufficient.”
    It was thereupon referred, February 27, 1900, by the General Superintendent to the Auditor for the Treasury Department for settlement. The Auditor thereupon, although certifying “that the proofs in the case were thoroughty examined; that it appeared to be a most meritorious one and would have been allowed if application had been made within the period covered by his enlistment,” rejected the same, in accordance with a decision previously made by the Comptroller of- the Treasury as referred to in the next succeeding finding.
    The claimant thereupon appealed to the Comptroller of the Treasury, by whom the decision of the Auditor was affirmed on the same ground.
    IY. From the time of the passage of the act of May 24, 1882, up to December 17, 1897, claims for disability pay arising under section 7 of the act of May 4, 1882 (1 Supp. E. S., 341), were paid by the disbursing officer of the Department under authority of the Secretary of the Treasury. If the evidence filed showed that the disability upon which the claims were based was incurred in the line of duty in the service the claims were allowed and paid, whether the application in any case had been filed while the applicant was still in the service or whether he had ceased to be a member of the service prior to the date of his application.
    Under date of December 17, 1897, the Comptroller of the Treasury rendered a decision (4 Comp. Dec., 377) in which he held that claims of this class were not, in his judgment, such as a disbursing officer is authorized to pay, but that their settlement clearly came within the jurisdiction of the Auditor for the Treasury.
    These claims were accordingly thereafter referred to the Auditor for settlement, and in passing upon them no consideration or effect was given by that officer to the date of the application in any case until the decision of the Comptroller of May 28, 1898, in the claim of Warren Adkins (4 Comp. Dec., 656). Under the practice above indicated, the Auditor had issued a certificate in favor of Warren Adkins for a balance due upon his claim for the benefits provided by section 7, act of May 4, 1882, on account of disability incurred while he was serving as surfman at the Cape Henlopen life-saving-station, Fifth district, although the claim in'the case was not executed and filed in the Department for more than six months after Adkins had ceased to be a member of the service by reason of the expiration of the term of his last enlistment therein.
    The Secretary of the Treasury requested a revision of the account by the Comptroller, under the provisions of section 8 of the act of July 31, 1894 (2 Supp. E. S., 125), upon a ques-‘ tion going to the merits of the claim. In making the revision the Comptroller stated that the case under consideration, in his judgment, presented another and more serious question than the one referred to by the Secretary, and after raising and considering this point as to when an application for disability pay should be filed, the Comptroller held that to entitle a disabled surfman to the compensation provided in the act he must make application therefor while he is in the service. For this reason the action of the Auditor in making the allowance in the case was disapproved, and on the revision the claim was disallowed. Since it was rendered this decision has been followed by the Auditor, and in the settlement of claims of this class in which the application was made after the claimant had ceased to be a member of the Life-Saving Service that officer has issued certificates of disallowance.
    
      Mr. George A. King for the claimant. Mr. William, B. King was on the brief.
    
      Mr. Assistant Attorney- General Pradt for the defendants. Mr. Willimn II. Button was on the brief.
   Howry, J.,

delivered the opinion of the court:

Plaintiff sues to recover an additional year’s pay as a surf-man in the Life-Saving Service because of physical disability incurred during his term of enlistment. The question presented is his right to maintain the action on an application made after the expiration of the term for the benefits of the statute granting pay for physical disability contracted in the service.

The solution of the question renders necessary some consideration of the rule adopted by the accounting officers of the Treasury denying payment, the case deriving its chief importance from the fact that it is one of a class of cases awaiting judicial action.

Plaintiff enlisted at Fletcher’s Neck station, Maine, in 1896, and reenlisted in 1897 and 1898, passing the necessary physical examination each time. In June, 1898, he went with the keeper of the station to Portland, Me., to be examined. The surgeon there found that he was not fit for duty and gave a certificate showing that the plaintiff was not physically sound. In July of the same year the entire crew of the station went to Portland to be examined for reenlistment. Plaintiff’s application to reenlist was rejected because of the certificate of the medical examiner at that time showing him to be physically disqualified and unfit for further duty.

Two or three months after his term of service had expired plaintiff made an application for the benefits of the act granting additional pay in case of physical disability. The application, substantiated by sufficient proof of the disability, was referred to the accounting officers for settlement. It was rejected on the ground that plaintiff had made no application for the benefits of the act previous to the expiration of his term of service. Thereupon the plaintiff appealed to the Comptroller of the Treasury, by whom the decision of the Auditor denjfing payment was affirmed on the ground stated by the Auditor, the rejection of the claim being based upon a previous decision in the case of Warren Adkins (4 Comp. Dec., 656).

The position of surfmen is regulated by the rules of the civil service. The men are engaged on the coast for terms expiring on July 31 of the year succeeding their enlistment. The active season on the Atlantic coast is from August 1 to June 1 of the succeeding year. (2 Supp. Rev. Stat., 223.) The period from June 1 to August 1 is called the “inactive period,” and during that time a surfman is not required to be in attendance at the station, but is subject to emergency call in case of necessity. (Reg. U. S. Life-Saving Service, secs. 181,183.) According to the regulations, a surfman ceases to be an employee and loses all connection with the service at the expiration of the term of enlistment unless, after examination, he is reenlisted.

The Life-Saving Service is perilous to those engaged in it. Surfmen walk barren shores and keep lonely vigil by day and by night, ready to risk life and limb in the roar and wash of breakers to save human life from the disasters of the sea. Congress recognized the danger of this service bjr passing the statute under which the claim is founded. Section 7 of the act of May 4, 1882 (1 Supp. Rev. Stat., 341), provides—

‘ ‘ That if any keeper or member of a crew of a life-saving or lifeboat station shall be so disabled by reason of any wound or injury received or disease contracted in the Life-Saving Service in the line of duty as to unfit him for the performance of duty, such disability to be determined in such manner as shall be prescribed jn the regulations of the service, he shall be continued upon the rolls of the service and entitled to receive his full pay during the continuance of such disability, not to exceed the period of one year, unless the General Superintendent shall recommend, upon a statement of facts, the extension of the period through a portion or the whole of another jrear, and said recommendation receive the approval of tbe Secretary of tbe Treasury as just and reasonable; but in no case shall said disabled keeper or member of a crew be continued upon tbe rolls or receive pay for a Iong-er period than two years.”

The plain provision of this statute, once the disability is determined under the prescribed regulations, is that any keeper or member of a crew so disabled in the line of duty as to unlit him for further service shall be continued upon the rolls. Should such keeper resign or such member voluntarily retire from the service during the term, neither could have the benefits of the act, notwithstanding disability incurred in the service.

The statute is not in the alternative as to the right. The provision for continuance upon the rolls is peremptory. An • application is altogether proper; indeed, the regulations require one at some time. But with the disability duly ascertained and declared and the surfman laid off for that reason, there is no necessity for an application before the expiration of the period of enlistment. It is true that a beneficiary may waive the benefits of the act, but failure to apply as soon as the disability is declared within the term can not be construed to constitute a waiver. The regulations do not require a specific time for the application any more than does the statute. The act authorizes regulations to determine the disability, but not to supersede the statute after the disability has been determined. The regulations supplement the statute in the means provided to arrive at the fact of disability and to prevent the operation of the statute before the disability is clearly established.

That the act is liable to be abused by those who have gone out of the service does not preclude claims for the benefits of the act by those who can show disability from injuries received or disease contracted within the year of service in the line of duty of such character as to unfit the applicant for the further performance of duty.

These views are not inconsistent with the practice of the Treasury officials for a period of more than fifteen years. The early departmental construction is more in_ accordance with a just administration of the law than the later rule which rests upon the idea that a member once dropped, even though disabled in the service, can not be restored to tbe rolls for the purpose of receiving the additional pay.

Jddgment will be entered for plaintiff for the amount prayed for in the petition.  