
    BENJAMIN’S CASE.
    Park Benjamin v. The United States.
    
      On the Proofs.
    
    
      The Act July 16, 1862, (12 Stat. L., 583,)provides “that the students at the Naval Academy shall be styled midshipmen until their final graduating examination, when, if successful, they shall he commissioned ensigns.” When the act is passed there exist certain regulations at the Academy whereby midshipmen must pass a final academic examination, and then, after certain sea-service, must also pass another final examination. A midshipman passes the former, and insists that he is entitled to be commissioned ensign. Se brings his action to recover an ensign’s pay.
    
    
      I. The final examination referred to hy the Act July 16, 1862, (12 Stat. L., 583,) which provides that midshipmen passing such examination shall he commissioned ensigns, is not the final academic examination of the Naval Academy, hut the last examination referred to in the regulations subsisting at the time when the act was passed.
    II. If a midshipman were entitled to he commissioned ensign, and the President should refuse to issue his commission, no action would lie for the salary of the office, which he does not possess.
    
      Mr. John J. Weed, for the claimant:
    The claimant’s right to maintain this action depends upon the construction which shall be given to the act of Congress approved July 16,1862, taken in connection with the act of Congress approved March 3, 1865.
    The claimant bases his right to recover upon section 11 of the act of Congress approved July 16,1862, which is as follows:
    “ That the students at the Naval Academy shall be styled midshipmen (and) until their final graduating examination, when, if successful, they shall be commissioned ensigns, ranking according to merit.” (12 Stat. L., 585.)
    All of the conditions which entitle the claimant to the benefit of the provisions of this act exist here. He was a student at the Naval Academy, and during the time he was such student he was entitled to the rank and pay of a midshipman. He passed the “final graduating examination” prescribed for students at the Naval Academy, and became, upon such graduation, entitled to the rank and pay of an ensign. This the law entitled him to receive, and neither the Secretary of the Navy nor any regulation of the Navy Department could legally deprive him of the rank and pay which the law declared should be rightfully his so soon as he had successfully passed the “ final graduating examination,” by which alone his standing and rank as an officer in the Navy were to be determined. The right to a commission, to assignment to rank according to merit, and to the pay of ensign all followed as an incident of the “ final graduating examination.” It is too clear for argument that this is the construction which this act must receive. The words of this statute, as well as of all others, are to be understood as having been used, and are to be construed in accordance with their usual force and meaning; and if we so construe the words of this statute, this question is free from either doubt or difficulty. The time when a student at the Naval Academy shall cease to be a midshipman and shall become an ensign is marked by the language of this statute with unmistakable clearness. That time is the period when the student and midshipmen shall have successfully passed his “ final graduating examination.” He then ceases to be a midshipman, and becomes an ensign. The act of “ graduating” and the examination to which the midshipmen is subjected previous to that evidently meant the examination which the student must pass previous to receiving a diploma or certificate of graduation at the Naval Academy. “To graduate,” according to Webster, is “ to honor with a diploma or degree at a college or university,” and it is in this sense that we must construe and understand the words of this statute. Being so construed, it is obvious that the “ final examination” to which the midshipman must be subjected before he becomes an ensign is that “ graduating examination,” after which,5(if successful, he receives his diploma, as evidence that he has completed the prescribed course of study at the Naval Academy. After having passed this examination, and without being subjected to further service or other examination, the midshipman, by the terms of this statute, becomes entitled to a commission as ensign.
    But it may be contended that the statute to which we have directed the attention of the court does not in any manner change the rules and regulations for the government of the Naval Academy in force at the time of the passage of this act, and that by these the graduates at the Naval Academy were required to serve a certain period at sea before their promotion to the rank of ensign. If there was any such rule or regulation of the Navy Department in force at the time of the passage of this act, it was repealed and became void by the provisions of this statute. This act fixed the time when a midshipman should become an ensign, and any regulation of the Navy Deparment or of the Naval Academy fixing some other time, for promotion to this rank would be void, because in conflict with the terms of this statute.
    It may be urged also that because the claimant was not actually commissioned as an ensign at the time he passed his “ final graduating examination,” he is not therefore entitled to be paid as such during the time which elapsed between his “ final graduating examination” and the time when he received bis commission as ensign. If tbe claimant’s right to be paid as ensign depended only upon bis commission, or if bis commission could be lawfully withheld from him by tbe President, then it may be conceded that bis right to receive payment as ensign would be an incident of and result from tbe fact of being commissioned. But tbe Act July 11,1862, declares that upon tbe happening of a certain event a midshipman “ shall be commissioned an ensign.” There is no discretion left here which could delay or deprive the midshipman who had passed his “ final graduating examination” of the rank and pay of an ensign. In such cases “shall be commissioned” does not mean “ may be commissioned.” And whether commissioned or not, the claimant, at the very instant that he successfully passed his “final graduating examination,” became entitled to receive the pay and emoluments affixed by law to the rank or office of ensign in the Navy. In the great case of Marbiory v. Madison, (1 Granch, 50,) the Supreme Court held that, as to an officer who is not removable by the President, the signing and sealing of a commission vested the office irrevocably in the officer, although the .commission has never been delivered to him. But the court say: “ Where an officer is removable at the will of the Executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable, and the commission may still be arrested if still in office.”
    In this case the right to the commission was not dependent upon the will of the Executive. The issuance of the commission did not confer the right either to the office or to its pay. The issuing of a commission was only a ministerial act or duty, and could not be avoided, because it was enjoined by law. The President could neither rightfully withhold the commission nor deprive the officer of his rank or pay. He did not derive his right to the commission from the will or pleasure of the President, but from an act of Congress, which the President was bound to see was faithfully executed. It would seem clear, therefore, that although the claimant was not in fact commissioned as an ensign until the 18th day of December, 1868, he was nevertheless entitled to the pay affixed by law to that office from the 6th day of June, A. D. 1867, the date of his “ final graduating examination,” until he was actually commissioned as an ensign.
    
      
      Mr. Albert D. Robinson (with whom was the Assistant Attorney-General) for the defendants:
    By the terms “final graduating examination,” in the act in question, the final examination before the board of naval officers was intended, as distinct from the graduating examination before the academic board. The language used shows this. It is clearly shown that, at the time of the passage of the act, there were three examinations for the students, that had been in use for years, to wit: the examination on entering, the graduating academic examination, and the final graduating examination, or examination of graduates before the naval board. These had been in use for a long time, and must have been well known to Congress, and especially to.the naval committees. Now, if Congress intended the usual academic graduating examination, why say “final1?” The “graduating” examination was also familiar j and if Congress had intended the “ graduating,” there would have been no need of adding “ final;” and why say “final graduating” when, as claimant says, there «was but one graduating examination ? In view of the fact that there were then two well-known examinations, the “ graduating ” and the “ final graduating,” how could Congress have better expressed its reference to the latter ? Again, the act says: “The students shall be styled midshipmen, and until their final graduating examination,” &c. Why use the word “ and,” unless something more than theacademical course was intended ? The students were such clearly until they passed the academic graduating examination, and the language up to the word “ and ” would have given them all that claimant contends was intended, without using any more. The only other time to which it could apply -was the time between the graduating examinatio.n of the Academy and the final graduating examination by the board of naval officers. By all reasonable and fair rules of construction this latter examination was intended. Again, these rules and regulations with reference to these various examinations were then well known, as before stated, and were in full force and use at the time of the passage of the Act July 14, 1862, by which they were approved and adopted. Will any one seriously urge that in two days after this Congress, by another separate act, and without any modification of or reference to the former, radically changed what they.had but just approved and adopted two days before, and without any reason appearing for it ? The idea is absurd. Evidently Congress did not intend materially to change the regulations in force, nor to infringe upon the right and propriety of the Secretary of the Navy making such rules and regulations as he should deem best for the interests of the service; for, after the ap-approval, it adds, “ subject, however, to such alterations as the Secretary of the Navy may adopt,” &c.; still leaving with him the same full and ample authority he had before possessed and used without question.
    Biit this was the intent of Congress, because it was eminently proper and necessary that it should be so.
    The regulations requiring this final graduating examination had been in existence and in use for about • ten years, and must have been well known to the members, and especially the naval committees, of the two houses, as before stated. With this knowledge of the rules, and knowing the importance (as every one must see at a glance) of regular sea-service (after having received their book-knowledge) before assuming such a responsible position as ensign, can it be believed for a moment that Congress intended to do away with such a long-established and wise regulation without leaving clearer proof of such intent than appears in the act in question or in its surroundings?
    But still, again, the Act March 3, 1865, above noted, is sufficiently declaratory of the intention of Congress in passing the Act July 16, 1862, so that “he that runneth may read.” There can be no other reasonable construction of it. It says, “ that midshipmen, after their final academic examination.” Thisshows that, for some time at least, they would be midshipmen after their graduating examination; keeping up the same distinction recognized in all the regulations between academic examinations and the one after the academy course is all over, “ and until their .promotion to the grade of ensign.” This assumes, and by its assumption declares, that there is a space of time, long or short, after.their graduating examination and before they are promoted to ensign. It does not specify the time, and therefore it can mean nothing else than the well-known usage not only in force at the passage of the Act July 16,1862, but continued and in force at the time of the Act March 3,1865. If this view is correct thus far, the claim must fail, because, if there is any force in claimant’s view of the law, as soon as the middy swings his hat at his successfully passing the academic examination, he becomes, cle facto, an ensign, not needing promotion, warrant, or commission, and must be obeyed as such. This will not do. But, further, the act says: “ And shall be paid at the rate of $800 per annum.” What! an ensign to be declared by Congress entitled to only $800 per annum, when the law says an ensign shall have $1,200 ! Preposterous, if claimant’s view is right, but entirely consistent with the view of the defense. But more than all, and'above all, and as if Congress intended not to leave anything for a claimant to stand on, it adds, “while on sea-service.” But this is the very gravamen of the complaint, that claimant, after his graduating academic examination and before receiving his commission as ensign, was required to render sea-service, (see petition,) and yet Congress says there shall or may be, properly, a sea-service required. Of whom — an ensign ? No; a midshipman, after his graduating academic examination, and before promotion to ensign.
    ■ The case of Marburg, (1 Oranch,) referred to in claimant’s brief, does not touch the point. In that case the appointment had been made by the President, confirmed by the Senate, and a commission duly issued by the President and delivered to the Secretary of State to record and deliver to claimant, and demand had been made on the Secretary for it, which was refused. A very different case from this. The court held that the commission had issued.
    A distinction is also made in that case between officers removable by the President and such as were not; and in that also the case differs from this. This officer was removable at the. pleasure of the President. (12 Stat. L., 596.) The very commission which claimant received so states, as proved by himself. The time of the appointment of claimant as ensign was in the discretion of the President, and, at least until it is shown that such discretion was abused, claimant cannot recover. The words “ shall be commissioned ensign ” are only another form of saying when, in the discretion of the President, the time shall arrive for the promotion of any such students, he may be commissioned ensign and become a commissioned officer of the line, instead of a passed midshipmen only, as heretofore. It is not possible that Congress intended to say that as soon as a student passed his examination he should be commissioned ensign, notwithstanding any reason that might exist to show that he should not, or was not worthy to receive his commission.
    
      But by no law or precedent can it be established that claimant can recover his pay before the issuing of his commission, or at least without showing that he had performed or tendered performance of the duties of the office for which he claims he should have been commissioned, which he has failed to do in this case.
    But it may be said, what remedy has a person in such a case?
    It must be against some individual. The law (which for this purpose is the Government) says (in claimant’s view) that he shall be commissioned at a particular time. It was the duty of some particular person to have issued his commission, and therefore, if any law has been violated, such person is liable for not executing the law, and therefore violating it. The remedy is against such person. This was in principle decided in the case in Oranch.
    Marbury did not pretend that the Government was liable that he did not receive his commission, but the individual officer. .
    The claimant makes no complaint of any improper delay after his “ final graduating examination” by the board of naval officers.
    We think we have clearly shown—
    At the time of the passage of the Act J%ly 16,1862, students at the Academy, before they were entitled to the rank and pay of “ passed midshipmen,” were required by the Begulations of the Navy Department (which had just been approved by Congress) to successfully pass two graduating examinations; to wit, the “ academic graduating examination ” by the professors at the Academy, and the ‘‘final graduating examination” by a board of regular naval officers, a term of regular sea-service having intervened. At the time of the passage of said act the students were designated as follows : While at the Academy, “acting midshipmen;” after the “academic” and before the “ final graduating examination,” “ midshipmen;” and after the latter examination, “ passed midshipmen.” By the act in question, Congress intended no other change except that thereafter students were to be designated as midshipmen up to the time of the “final graduating examination” by the board of regular naval officers; and if they passed the latter examination successfully, they were then entitled to be line officers of the Navy, and to be commissioned as ensigns, in the usual method of appointment and confirmation, with an increase of pay, instead of being simply “passed midshipmen” as theretofore; and therefore claimant received his commission in due time and in the proper manner, and is not entitled to any further pay. Judgment should be given for the defendants, and the petition be dismissed.
   Drake, Ch. J.,

delivered the opinion of the court:

The claimant was, on the 23d of September, 1863, appointed a midshipman in the United States Navy, and as such entered the Naval-Academy, where he pursued his studies until the 6th of June, 1867, when he received from the superintendent of that institution a certificate that he had “completed the prescribed course of study at the Academy, and had successfully passed the required examination before the academic board.”

He claims that, under a provision contained in section 11 of the Act July 16, 1862, “ to establish and equalize the grade of line officers of the United States Navyf (12 Stat; L., 583,) he was, at the date of that certificate, entitled to be appointed and commissioned an ensign in the Navy, but that, under a regulation of the Navy Department, he was required to perform service and duty as a midshipman in the Navy from that date until the 18th of December, 1868, when he was commissioned as ensign; and he claims the difference between the pay he received as midshipman between those two dates and the pay which by law was due to an ensign.

The provision in the act of 1862 upon which he relies is in these words:

“ That the students at the Naval Academy shall be styled midshipmen [and] until their final graduating examination, when, if successful, they shall be commissioned ensigns, ranking according to merit.”

It is very evident that the word and there is a clerical interpolation in the enrollment of the act, and that the sentence should be read without it; but its insertion does not alter the sense.

The question is whether that provision entitled the claimant to be commissioned as ensign as soon as he received the certificate of June 6, 1867. We are of the opinion that no such force can be rightfully given to it, for the following reasons :

I. The use of the words “ final graduating examination ” seems evidently to point to some examination preceding that which was then known as the final one. And this indication is borne out by the evidence in the ease.

On the 16th of August, 1860, the Secretary of the Navy promulgated certain regulations of the Naval Academy which were in force when the Act Jnhj 16, 1862, was passed. Among those regulations were the following:

“Chapter YI. — Academic examinations.

“An annual examination of all the classes shall be held by the academic board, commencing on the 1st day of June.

“ Any acting midshipman * * * may be graduated at any June examination at which he may be found fully qualified to pass a graduating examination.

“Every acting midshipman who succeeds in passing a graduating examination in June will receive from the academic board a certificate of graduation, which will entitle him to a warrant as a midshipman- in the Navy, bearing the same date as that certificate.”

“ Chapter YIII — Final examination op graduates.

1..“A board to consist of five captains and commanders * * * will convene annually * * * for the purpose of making the final examination of midshipmen, to ascertain and decide upon their qualifications for promotion.

2. “ Midshipmen whose appointments bear date subsequent to the 1st of January, 1851, will not be entitled to a ‘ final examination,’ unless they shall have received a certificate of graduation from the Naval Academy; have performed two and a half years’ sea-service in the Navy, including their sea-service in the practice-ship ; do produce certificates from their respective commanding officers of their good conduct and attention to duty, together with journals of all their cruises ; and, besides, quarter, watch, and station bills of at least one of the vessels in which they have sailed, in their own handwriting.

3. “ The examination by the board will embrace seamanship and naval tactics, practical gunnery, navigation, and management of steam-engines; and the standing in these branches shall be combined to determine the relative merits of the members of the class at this examination.

4. “In assigning numbers to the candidates on their final examination, the number 1,000 is to be considered as expressing the maximum, and 333 as the minimum, to be allowed j and the board will assign to such candidates as shall, in its opinion, be duly-qualified for promotion, the number, within those limits, which, in the judgment of the board, will fairly express their relative qualifications.

5. “The numbers thus assigned, when added to the numbers which have already been assigned to them respectively on the ‘graduating merit-rolls’ of the Naval Academy, will determine their standing as passed midshipmen; the highest number to take precedence.

6. “ The Secretary of the Navy will cause the board of examiners to be furnished with the numbers which had been assigned by the academic board to each of the midshipmen, to enable the board of examiners to determine the relative standing of those whom they may examine, as required in the next preceding article.”

That the existence of these regulations was known to Congress when the act of 1862 was passed cannot for a moment be doubted; and they afford a clear explanation of the use in that act of the words “final graduating examination.” So far from authorizing the promotion of a midshipman to ensign upon Ids passing the academic examination, they have the effect of prohibiting his promotion then, and of requiring him to pass the second or “ final graduating examination” before he could be commissioned an ensign.

II. But even if this position were not tenable, the claimant cannot recover salary as ensign prior to December 18, 1868, for the simple reason that prior to that date he was not an ensign. However clear and strong his legal right might have been to be commissioned as such when he passed the academic examination, the fact remains that he was not so commissioned, and the law gave him no right to the salary until he got the commission.

III. Though the law might be held to have authorized his appointment as ensign when he passed the first examination, it would not necessarily follow that he ever would be so appointed; for his becoming an ensign depended, not upon the operation of the act of 1862, but upon his being nominated by the President and confirmed by the Senate for that office; neither of which things might ever be done. For reasons deemed suffi-oient, the President might not nominate or the Senate might not confirm him for the position; or, after nomination and. confirmation, the President might, on grounds considered adequate, decline to commission him, In either case he would not be an ensign. The issue of the commission is that which confers the office and the right to its pay.

The claimant's petition must be dismissed.  