
    HARRIE WEBSTER v. THE UNITED STATES.
    [No. 17512.
    Decided December 19, 1892.]
    
      On the Proofs.
    
    An assistant engineer in the Navy is appointed acting paymaster at Samoa in consequence of the death, of the paymaster of the Vandalia, and is paid the salary o-f the paymaster. He seeks to recover in addition Ms pay as assistant engineer; he also claims the longevity pay, which the deceased officer was receiving.
    I.A person appointed to act as paymaster in a ship at sea, or on a foreign station, under Eevised Statutes (§§ 1381, 1564) does not thereby become an officer.
    II.A naval officer acting as paymaster is appointed to discharge the duties of an office which he does not hold and is prohibited from receiving dual compensation by the Eevised Statutes (§§ 1763, 1765).
    III. The offices of engineer and paymaster in the Navy are incompatible, and he who holds them is not entitled to the compensation of both, but is entitled to the larger of the two.
    IV. A person appointed paymaster to fill the vacancy of a deceased officer on a ship at sea or in a foreign port is entitled to the pay of the office irrespective of the longevity pay of the officer in whose stead he is acting.
    
      The Reporters’ statement of the ease:
    This ease not being appealable no findings were filed, but the facts will be found stated iu the opinion of the court. .
    
      
      Mr. John Paúl Jones for tbe claimant.
    First. We claim that claimant should, have been paid the pay of a paymaster in his fourth five years; that being the rate at which Paymaster Arms was being paid at the time of his death, and which he would have continued to receive if he had survived the wreck.
    Second. We claim that claimant should also be paid the pay of a passed assistant engineer on leave or waiting orders during the time he was acting as paymaster, viz., from March 17 to July 17, 1889.
    The first proposition depends upon the meaning of the word ‘‘grade” as used in section 1381. The true meaning of this word when applied to military and naval matters has been the subject of much discussion in this court. By repeated decisions its definition is now well settled. In Woods Case (15 O. Cls. Ei., p. 160) the court says:
    “(Trade is a step or degree in either office or rank, and has reference to the divisions of the one or the other or both, according to the connection in which the word is employed.”
    In Thornless Case (18 0. Cls. E., Ill) by a special act of Congress the accounting officers were “authorized and directed to allow him the rate of retired pay of the grade in which he was retired.” We insisted in that case that the word “grade” as there used did not refer to the lustrum of pay in which Thorn-ley happened to be retired, but that it meant the office which he held, and that, therefore, he was entitled to increased compensation at the expiration of each five years’ service (sec. 1566, E. S.), although he was on the retired list.
    The general law (sec. 1588, E. S.) fixed the pay of retired officers at 50 or 75 per centum “of the sea pay of the grade or rank which they held, respectively, at the date of their retirement.”
    This court, upon careful consideration of both acts, held that the word “grade” limited.Thornley’s pay to a per centum of the pay of the lustrum in which he was retired.
    We subsequently presented the same question to the court in a somewhat different shape. Mr. Justice Scofield in a very elaborate opinion reaffirmed the Thornley case (Rutherford v. The United States, 18 C. Cls. B., 339). The syllabus of that case puts the gist of the decision in few words:
    
      “The word ‘grade’ in Eevised Statutes, section 1588, which fixes the pay of retired officers of the Navy at 75 per cent of the sea pay of' the grade or rank held at the time of retirement, refers to the divisions of officers into five years’ periods of service.”
    It was concluded that Rutherford, who was retired in his third five years of service as a chief engineer, was entitled to be paid 75 per cent of the sea pay prescribed by law for that particular lustrum of service, and not 75 per cent of the sea pay of the first or the last lustrum.
    This claimant was only allowed the sum of $906.26 for his services of acting paymaster; he should have been paid the sum of $1,249.93. On this account there is therefore due him the sum of $343.67.
    The second proposition is, we think, equally plain. Claimant holds an office for life, subject only to his continued mental, moral, and physical proficiency to perform the duties incident to it, and there is no power outside of Congress or the sentence of a court-martial which can deprive him of the emoluments of that office. Those emoluments consist of pay and, rations, and are larger or smaller, according to the duty performed by the officer (sec. 1566). When on leave or waiting orders the pay of an officer is properly less than at any other time. The Secretary of the Navy has the power at any time to put an officer on this pay. It is frequently done as a punishment for some infraction of the regulations, but the Secretary’s power extends no further. He can not wholly deprive an officer of his pay. For every day an officer is in the service he must (unless otherwise decreed by court-martial) be paid either the sea pay, the shore pay, or the leave or waiting orders pay incident to his grade.
    If the Secretary of the Navy has no power to issue an order which can have the effect of temporarily suspending an officer’s pay, it is clear that no subordinate can do so.
    The act of God has rendered it impossible for this claimant to perform those daily and routine duties to which the Secretary had assigned him, but he was still an officer in full and active service, with all the restrictions and responsibilities attendant thereto.
    Lieut. Carlin utilized his services by appointing him to a temporary position, for which the statute makes provision. He, therefore, held two distinct and separate appointments and comes within tbé rule laid down in Converse v. The United States (21 How., 463); United States y. Brindle (110 U. S., 688), and United States v. Saunders (120 id., 126).
    
      Mr. Felix Bra/nnigan (with wliom was Mr. Assistant Attorney-General Cotton) for tlie defendants.
   KichardsoN, Ch. J.,

delivered tbe opinion of tbe court:

Tbe claimant is, and bas been since October 29,1874, a passed assistant'engineer in tbe Navy. March 16,1889, be was serving as sucb on tbe United States steamer Yandaba when that vessel was totally wrecked in tbe barbor of Apia, Samoan Islands, and Paymaster Frank H, Arms lost bis life.

Thereupon tbe claimant received an acting appointment to perform tbe duties of paymaster until another paymaster should report for duty, under tbe following provisions of tbe Eevised Statutes:

"Sec. 1381. When tbe office of paymaster or assistant paymaster becomes vacant, by death or otherwise, in ships at sea, or on foreign stations, of on tbe Pacific coast of tbe United States, tbe senior officer present may make an acting appointment of any fit person, who shall perform tbe duties thereof until another paymaster or assistant paymaster shall report for duty, and shall be entitled to receive tbe pay of sucb grade while so acting.
“ Sec. 1664. Any person performing the duties of paymaster, acting assistant paymaster, or assistant paymaster, in a ship at sea, or on a foreign station, or on tbe Pacific coast of tbe United States, by appointment of the senior officer present, in the case of vacancy of sucb office, in accordance with tbe provisions of section thirteen hundred and eighty-one, and not otherwise, shall be entitled to receive tbe pay of sucb grade while so acting.”

He bas been paid the salary of paymaster while performing duty as acting paymaster under that appointment from March 16 to July 17, 1889.

■ His claim is that he is entitled to receive also tbe salary of passed assistant engineer, on tbe ground that be held two distinct offices and is entitled to compensation of both on tbe authority of Collins’ Case (15 C. Cls. R., 22), Saunders’ Case (120 U. S., 126), and other cases.

In point of fact be did not bold two distinct offices. An acting paymaster, appointed by the senior officer present, is not an officer. He is not appointed as required by the Constitution, takes no oath of office, and gives no bond as paymaster.

ITe is appointed to discharge the duties of an office which he does not hold, that of paymaster, and he is therefore prohibited if omreceiving compensation by the following provisions of the Revised Statutes:

“Seg. 3.763. No person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law.
“Seo. 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.”

In an opinion of Attorney-General Evarts to the Secretary of the Interior, in 1868, he quotes with approval an earlier opinion of Attorney-.General Crittenden, in which he says:

“The plain meaning of this [statute] seems to be that an individual holding one office, and receiving its salary shall in no case be allowed to receive also the salary of another office which he does not hold, simply on account of his having performed the duties thereof. The prohibition is against his receiving the salary of an office which he does not hold, and not against receiving the salaries of two offices which he does legitimately hold.” (12 Opin., 460, quoted in Collins’s Case, 15 C. Cls. R., 37.)

The views of Attorneys-General Crittenden and Evarts have been adopted by this court and the Supreme Court.

It is true that Revised Statutes, sections 1381,1564, provide that any person performing the duties of paymaster by appointment of the senior officer shall be entitled to receive the pay of such grade while so acting. Those sections must be construed with reference to other provisions of the statutes, and while they may operate literally if the appointee holds no office under the Government as may be the case, if he holds an office he can not escape from the prohibitions of Revised Statutes, sections 1763, 1765. The object and intent of Congress must be ascertained by construing together all the provisions of law on the same subject, and it does not appear that Congress intended to allow an officer two salaries when temporarily discharging the duties of acting paymaster by appointment under Bevised Statutes, section 1381.

Moreover the offices of engineer and paymaster in the Navy, two offices in the same service, are incompatible, and one who holds two incompatible offices at the same time is not entitled to the compensation of both, according to the decision of the Supreme Court in Badeau’s Case (130 U. S., 439).

Badeau was an officer in the Army on the retired list. Be was appointed and acted as a consul-general. The Supreme Court held that the offices were incompatible and that he could not receive the salaries of both.

It is the liberal custom of the Treasury Department to allow a person holding more than one office the compensation of that one which is the larger. In this instance the claimant was paid the salary of a paymaster in the first five years of service.

He claims the pay of paymaster in the fourth five years of service, which would have been the pay of the officer in whose place he was acting. Increase pf pay for length of service in the Navy is founded on the theory that an officer acquires experience and efficiency by the long performance of the same duties. It is not to be presumed that Congress intended to pay from the beginning the increased compensation allowed for length of service to one who is appointed temporarily to discharge the duties of paymaster.

The accounting officers construed the statute as allowing in such case the salary of paymaster in the first five years of service, and as that was more than the claimant’s salary as an engineer he has no cause of action, and his petition must be dismissed.  