
    EUGENIA A. ROGET, Executrix of Roget, v. THE UNITED STATES.
    [No. 16288.
    Decided February 11, 1889.]
    
      On the Proofs.
    
    A retired naval officer is continued on active duty for several years. While on active duty he receives full shore pay. After the termination of his active duty he receives three-fourths of the pay he was receiving at the time of retirement. He seeks to recover longevity pay as if the retirement had taken place when the active service ceased.
    A naval officer who renders active service after retirement is entitled, when the active service ceases, to only three-fourths of the pay he was receiving at the time of retirement. Active service on the retired list does not operate to postdate the time of retirement so as to increase longevity pay.
    
      The Reporters' statement of the case:
    The following are the facts as found by the court:
    I. July 8, 1864, the claimant’s testator was commissioned a professor of mathematics in the Navy, to rank from May 21, 1864.
    II. August 1, 1864, he became sixty-two years of age, and was on that day placed upon the retired list. Notwithstanding such retirement be was continued on active duty on shore until June 30,1873.
    III. While performing such duty he received the full shore pay of his grade, including the increase, after five years’ service therein, provided by section 3 of the Act of July 15, 1870 (16 Stat. L., 331).
    IV. From July 1, 1873, to November 9, 1887, when he died, he received only three-fourths of the pay prescribed in the act of 1870 and section 1556, Revised Statutes, for a professor in his first five years of service.
    Upon the foregoing findings of fact the court decided as conclusion of law that—
    An officer in the Navy who was retired in the first five years of service from a rank having longevity pay, but who was continued on active duty until he had passed into his second five years of service, is not entitled under the Act March 3,1883 (22 Stat. L., 473), to a greater rate of pay, after active service ceased, than 75 per cent, of the pay for the grade or rank which he held at the time of retirement.
    
      Mr. B. B. Lines for the claimant:
    This is a claim, under the longevity-pay clause of section 1 of the Naval Appropriation Act of March 3, 1883 (22 Stat. L., 473).
    The claimant’s testator, a professor of mathematics in the Navy, after retirement on account of age, was continued on active duty, and received active duty pay under sections 1 and 2 of the act of December 21,1861, referred to in the request for findings of fact. By the Act of July 15, 1870 (16 Stat. L., 331), the pay of professors was graduated according to length of service. When on duty they were given $2,400 per annum for the first five years, $2,700 per annum for the second five years, etc. Professor Roget, having been more than five years in service, therefore received $2,700 per annum from the date of the act of 1870.
    The Naval Appropriation Act of March 3,1873, contained the following clause:
    
      “ That no officer on the retired list of the Navy shall be employed on active duty except in time of war: And provided^ That those officers on the retired list and those hereafter retired who were or may be retired * * * on attaining the age of sixty-two years * * * shall, after the passage of this act, be entitled to seventy-five per centum of the present sea pay of the grade or rank which they held at the time of their retirement.” (17 Stat. L., 547.)
    This clause is substantially embodied in section 1588, Revised Statutes.
    Professor Roget was thereupon relieved from active duty, and from July 1, 1873, to the date of his death (November 9, 1887), he was paid only $1,800 per annum or 75 per cent, of the pay of a professor in his first five years.
    The accounting officers have ruled that the expression in the act of 1873, “ grade or rank which they held at the time of their retirement,” referred not only to the commission of an officer, but also to the pay period in which he happened to be at the date of retirement. This construction was sustained by this court in Rutherford’s Case (18 C. Ols. R., 339).
    But the Act of March's, 1883 (22 Stat. L., 473), contained the following clause:
    “And all officers of the Navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer Army or Navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the regular Navy in the lowest grade having graduated pay held by such officer since last entering the service.”
    This clause has been construed to have a retroactive effect and to apply to officers of continuous regular service. {Haw-Mns v. United States, 19 C. Gis. R., 611; Mullan v. United States, 22 O. Cls. R., 497; 123 U. S. R., 186.) In Bradbury’s Case (20 C. Ols. R., 187) it was held to apply to retired officers who had uncredited active service. As the service claimed for here was “ actual service,” though performed after retirement, it is submitted that Professor Roget was enütled to be credited with it under the act of 1883, and to be paid from July 1, 1873,. at least 75 per cent, of the pay of a professor in his second five years, or $2,025 per annum.
    In Thornley v. United States (18 O. Ols. R., 117) this court said that “ the whole basis of longevity pay is the officer’s capacity for duty and his performance of it. In other words, longevity pay is for longevity in active service.”
    This case comes therefore within both the reason of the law and its exact language.
    
      
      Mr. ,F. P. Dewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    Prior to the Act of 1883 an officer on the retired list of the Navy was not entitled to longevity pay. (Thornton v. United States, 113 U. S. R., 310.) He was entitled as a retired officer to 75 per cent, of the pay of the grade or rank which he held at the time of retirement; that is to say, that if in the first five years of service, three-fonrths of the full pay of a professor in his first five years; if in his second five years, three-fourths of the full pay of a professor in his second five years. (Rutherford’s Case, 18 C. Cls. R., 339.) At this rate he has been paid. He has also received the extra pay allowed by law for services rendered after retirement.
    It is difficult to see what real application the Act of March 3, 1883 (22 Stát. L., 473) has to the case of claimant. He has been credited with the actual time he has s&rved, and has been paid as if all his servicehad been continuous and in the regular Navy in the lowest grade having graduated pay held by such officer since last entering the Navy.
    What the claimant really wants to establish is, that claimant’s retirement from the service was not when he reached the age of sixty-two years and under the law actually retired, but when he ended his services as professor.
   Scofield, J.,

delivered the opinion of the court:

The claimant is the executrix of Edward A. Rodget, deceased, late a professor of mathematics in the Navy, and seeks to recover $3,200 alleged to be due the decedent’s estate under the Act June 3,1883 (22 Stat. L., 473). That act is as follows:

“And all officers of the Navji shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer Army or Navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service bad been continuous and in the regular Navy in the lowest grade having graduated pay held by such officer since last entering the service: Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers: Provided, further, That nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his service in the volunteer Army or Navy.”

The facts are as follows :

July 8, 1864, the decedent was commissioned a professor of mathematics in the Navy, to rank from May 21, 1864.

August 1, 1864, less than a month after being so commissioned, he became sixty-two years of age, and upon that day was placed upon the retired list, under the Act December 21, 1861 (12 Stat. L., 329 ; Rev. Stat.’, § 1444).

Notwithstanding such retirement he was continued on active duty until June 30, 1873, at which time he was relieved under the Act March 3,1873 (17 Stat. L., 547; Rev. Stat., § 1462).

While performing such duty he received the full shore pay of his grade ($2,400 a year) during the first five years of service, and thereafter $2,700 a year, under the Act July 15, 1870 (16 Stat. L., 33).

From July 1, 1873, until his death, November 9,1887, he was paid at the rate of $1,800 a year, which was 75 per cent, of the pay fol the grade which he held at the time of retirement (Rev. Stat., § 1588).

Upon these facts the claimant contends that the act of 1883 above quoted in effect provides that the decedent’s pay shall be calculated as if all his service had been rendered on the active list, and he had been retired July 1,1873, in his second five years of service, instead of August 1, 1864, in his first. In other words, we are to antedate the retired service and postdate the time of retirement.

' This construction would entitle the claimant to recover, at the rate of $225 a year, from July 1, 1873, to November 9, 1887.

We do not «agree to this construction. In the case of The United States v. Foster (128 U. S. R.), the Supreme Court said :

“ The acts of 1882 and 1883 do not require or authorize a restatement of the pay accounts of an officer of the Navy who served in the regular or volunteer Army or Navy, so as to give him credit in the grade held by him prior to their passage, for the time he served in the Army or Navy before reaching that grade. Congress only intended to give him credit in the grade held by him, after those acts tooh effect, for all prior services, whether as an enlisted man or officer, counting such services, however separated by distinct periods of time, as if they had been continuous and in the regular Navy in the lowest grade having graduated pay held by him since last entering the service.”

The petition of the claimant will be dismissed.  