
    ALFRED ADAMSON v. THE UNITED STATES.
    [No. 14070.
    Decided June 2, 1884.]
    
      On the Faets.
    
    In 1864 the Secretary of the Navy decides that engineers are entitled to examination on the expiration of the regulation term of sea service, and to increased pay from that date, if subsequently found qualified and promoted. After the war long periods elapse between the sea service and promotion. The claimant’s sea service is completed in 1867, hut he is not examined and promoted till 1879, He seeks to recover the advanced pay for the intervening time.
    I.The Act 16th July,, 1862 (12 Stat. L., p. 586, § 16), provides that if an officer be “absent on-duty at the time when-he shouldhave been examined" and be found “ qualified at a subsequent examination," the increased pay shall be allowed him as of the date “when his examination should have taken place ”•/ but this does not entitle an officer to an examination unless there be a vacancy, or the likelihood of an early vacancy, to which he may be promoted.
    II.Navy Regulation 264, which provides that “ candidates for promotion to the grade of chief engineer must have served at least two]years at sea,” does not require an examination for promotion to take place as soon as the sea service is completed, but forbids it to take place before.
    III.The Act 22d June, 1874 (18 Stat. L., p. 191), authorizes payment only from the time a promoted officer takes rank-in the higher grade.
    
      
      The Reporters’ statement of the ease:
    This action the claimant brought by the voluntary filing of his petition. The following are the facts as found by the court:
    I. In 1867 the claimant was a first engineer in the Navy. In that grade he served two years at sea on board of a naval steamer. The two years of sea service was completed June 1, 1867. June 1, 1867, there was no vacancy in the grade of chief engineer to which the claimant could have been promoted, nor did any such vacancy occur until May 19, 1879.
    II. The claimant was ordered to examination for promotion to the grade of chief engineer May 23, 1879, and was thereupon found qualified. He was promoted to the grade of chief engineer July 12, 1879, and has received the pay of a chief engineer since May 19, 1879. From June 1, 1867, to May 18, 1879, the claimant was paid as a first assistant engineer. The actual amount of pay and allowances received by him from June 1, 1867, to May 18, 1879, was $23,900.24.
    III. The Navy regulations of I860 were in force in 1867. The two hundred and sixty-fourth section of those regulations (page 48) is as follows:
    “ 264. Candidates for promotion to the grade of chief engineer must have served at least two years at sea as first assistant engineer on board of a naval steamer.”
    IV.The Secretary of the Navy, May 12, 1864, addressed to the Fourth Auditor the following letter:
    “Navy Department, 12 May, 1864.
    “ Sir : The letter of 2d Asst. Engineer John Roop, referred by you to the department, is herewith returned.
    “ There may be some obscurity in the wording of the 16th section of the act of July 16, 1862, to which you refer, but the evident and sole purpose of the law is to prevent an officer from being deprived by absence on duty of the increased pay which promotion would have given him. Since the commencement of the present war the examinations of engineers for promotion have not been at any regular periods. It will be proper, therefore, to consider them as entitled to an examination on the expiration of the term of sea service which the regulations require them to have performed, and to allow them the increased pay from that date, if found qualified at their first examination subsequent thereto and promoted.
    “ Very resp’y,
    “Gideon Welles, .
    “ Hon. S. J. W. Tabor, “ Seci’y of the Navy.
    
    “ 4th Auditor.”
    
      Y. The Fourth Auditor, December 15, 1864, published the following regulations, which were approved by the Second. Comptroller:
    “ [Revised Rules in regard to the Transaction of Business at the Office of the Fourth Auditor of the Treasury. 1864. Pr. 19, 21, 22.]
    “90. * * * A promoted officer of the Navy * * * if his promotion be dependent on passing his first examination after he was entitled, by regulation, to be examined for that" purpose, his increased pay will commence on that date.
    “ 91. If he be promoted in consequence of passing successfully his first examination for promotion, the increased pay, in that case, begins when he was, by regulation, entitled to be examined.
    “ 112. By the 16th section of the act of 16th July, 1862, an officer of the Navy absent on duty when entitled to an examination, and found qualified on a subsequent examination, is entitled to the increased rate of pay ‘ from the date when he would have received it had he been found qualified at the time when his examination should have taken place.7
    “ 113. The Hon. Secretary of the Navy has given the following construction to that provision of law: ‘It will be proper, therefore, to consider them as entitled to an examination on the expiration of the term of sea-service which the regulations require them to have performed and to allow them the increased pay from that date, if found qualified at their first examination subsequent thereto and promoted.7 77
    YI. In 1867, when the claimant finished the two years of sea service required by regulation as a condition to promotion, the number of chief engineers in the Navy was limited by law to one for each first and second class ship. At that time there, were more chief engineers than there were ships of that description. This continued to be the case down to March 3, 1871, when Congress further limited the number of chief engineers to seventy. From March 3,1871, down to July 1,1874, the number of chief engineers allowed by law exceeded the number actually in service. But during this period had a sufficient number of first assistant engineers been promoted to make the number of chief engineers equal that allowed by law, the claimant’s number on the roll would still not have been reached. From July 2, 1874, to May 19, 1879, the number of chief engineers on the roll always equaled the number allowed by law. It was not until the latter date that claimant’s number was reached on the list of promotions, and a vacancy was then for the first time provided for him.
    
      Opinion of the eonrt.
    
      Mr. Charles F. Benjamin for the claimant.
    
      Mr. F. H. Howe (with whom was the Assistant Attorney- General) for the defendants.
   Scoeield, J.,

delivered the opinion of the court:

June 1, 1867, the claimant was a first assistant engineer in the Navy, and had at that time completed two years of sea service in that grade. He thus became eligible, under paragraph 264 of the Navy regulations, to an examination for promotion to the grade of chief engineer. No vacancy, however, in the latter grade to which he could be promoted existed at that time. About twelve years thereafter, to wit, May 19,1879, such a vacancy for the first time occurred. May 23,1879, he was ordered to an examination for promotion, which he successfully passed. July 12,1879, he was promoted.to be a chief engineer. During the intervening period, from June 1, 1867, to May 19, 1879, he received the compensation allowed by law to a first assistant engineer. From may 19, 1879, he has received the compensation of a chief engineer. He claims that by this promotion he became entitled to receive the difference between the pay of a first assistant engineer and a chief engineer from June 1,1867, when he completed two years of sea service, to May 19, 1879, when his pay as chief engineer began. The claim amounts to $6,624.69.

The claim is founded on section 16 of the act of July 16,1862 (12 Stat. at L., 586). This section is as follows:

“ Sec. 16. And he it further enacted, That whenever any officer of the Navy, of a class subject by law or regulation to examination before promotion to a higher grade, shall have been absent on duty at the time when he should have been examined, and shall have been found qualified at a subsequent examination, the increased rate of pay to which he may be entitled shall be allowed to him from the date when he would have received it had he been found qualified at the time when his examination should have taken place.”

At the time this act was passed the law allowed one chief engineer to every steamship of war (5 Stat., 377). During the war the number of steamships of war increased so rapidly that there were always vacancies in the grade of chief engineers awaiting first assistant engineers who became qualified by two years of sea-service to enter that grade. Promotions could then immediately follow successful examinations. Indeed successful examinations and promotions became in practice equivalent terms. Mr. Welles, Secretary of the Navy, therefore, advised the Fourth Auditor in unguarded language that it would “ be proper to consider first assistant engineers as entitled to an examination on the expiration of the term of sea-service which the regulations require them to have performed and to allow them the increased • pay from that date, if- found qualified at their first examination subsequent thereto and promoted.” "

The accounting officers followed this suggestion, and allowed a first assistant engineer, when promoted to be a chief engineer, back pay as chief engineer from the time when his two years of sea service was completed. However erroneous this construction of the act of 1862 may have been, it practically resulted in no injustice to the government at that time, because, as above stated, promotion always followed successful examination. But the act of July 1, 18G1 (13 Stat., 393), limited the number of chief engineers to one for each steam vessel of the first and second rates. By the act of March 3,1871 (section 1390, Revised Statutes), the number of chief enginéers was fixed at seventy.

In consequence of this legislation no vacancy in the grade of chief engineers, to which the claimant was eligible, occurred until May 19, 1879.

The regulation by which first assistant engineers become eligible to examination for promotion, after two years of sea service, still remained, but such examination could not with propriety be made until a short time before promotion. If long periods were allowed to elapse between examination and promotion, the physical, intellectual, and moral character of the candidate might become in the mean time entirely changed. Thereafter examinations did not take place when the two years of sea service were completed, and not generally until vacancies had occurred or were about to occur.

The attention of the accounting officers does not appear to have been called to this change in the law and practice relative to promotions and examinations preparatory therefor, for they continued to allow back pay from the time when the two years of sea service was completed.

In 1877 the attention of Mr. Thompson, Secretary of the Navy, was called to this practice. He came to the conclusion that either the accounting officers had misconstrued the letter of Secretary Welles, or that the Secretary had misconstrued the act of 1862. He advised that back pay should be allowed only from the time when a vacancy occurred, to which the absent officer could have been promoted if an opportunity for examination had been given him. From that time the accounting officers followed this construction.

Consequently the claimant, although he completed his two years of sea service June 1, 1867, but found no vacancy until May 19,1879, received back pay only from the latter date. We are of the opinion that he was entitled to no more.

The act of 1862 refers to the “ examination before promotion to a higher grade,” not to a date when by some possibility an examination might have been made. The time intended is next “before promotion,” not next after two years of sea service. The word “ examination” is used in the statute because examination must precede promotion, and while promotion could take place in the absence of the officer, examination could not.

The Navy regulation upon which the claimant relies to aid in his construction of the statute, is as follows :

“264. Candidates for promotion to the grade of chief engineer must have served at least two years at sea as first assistant engineer on board of a naval steamer.”

This does not require an examination for promotion to take placó as soon as the two years of sea service are completed, but forbids it to take place before. Nor does it imply that an examination for promotion shall take place before there is any chance for promotion.

But the claimant’s right to back pay under any construction of the act of 1862 is cut off by the act of June 22, 1874. The first section of that act is follows:

“ That on and after the passage of this act, any' officer of the Navy who may be promoted in course to fill a vacancy in the next higher grade shall be entitled to the pay of the grade to which promoted from the date he takes rank therein, if it be subsequent to the vacancy he is appointed to fill.” (18 Stat., 891.)

This act authorizes payment only from the time the promoted officer takes rank in the higher grade and subsequent to the date of the vacancy, to which, in course, he is promoted.

The vacancy to which the claimant was in course promoted occurred May 19, 1879. He was, therefore, entitled to draw pay as a chief engineer only from that date. That has already been paid to him.

His petition must be dismissed.  