
    JAMES G. GREEN v. THE UNITED STATES.
    [No. 16352.
    Decided April 21, 1890.]
    
      On the Proofs.
    
    On the 1st July, 1870, the claimant is a lieutenant m the Navy. On the 3d he is promoted to be lieutenant-commander. On the 15th the act is passed attaching graduated pay to both offices, but to take effect from the 1st July. In 1883 the act is passed allowing longevity pay to be computed upon “ the lowest grade having graduated pay held hy such officer." The accounting officers insist that the claimant’s pay shall be computed upon his rank as lieutenant; he on his rank as lieutenant-commander.
    
      I. The Naval Appropriation Act, 15th July, 1870 (16 Stat. L., p. 321, $- 3), declares that certain officers’ graduated pay shall he computed according to “ the lowest grade having graduated pay held by sndh officers.” This means “having graduated pay” at the time when the-officer was in that grade.
    II. Whether graduated pay was attached to a naval office by immediate or prospective or retroactive legislation is immaterial if it was not attached until after an officer had ceased to hold it. His. graduated pay must he computed according to the higher grade which he had then attained.
    
      The Reporters’ statement of tlie case:
    The following are the facts of the ease as found by the court:
    I. Claimant is a commander in the Navy of the United States, with the following record of entry and promotion:
    
      11 Volunteer service. — Acting master’s mate, 7th May, 1861; acting ensign, 27th November, 1862; acting master, 11th August, 1864.
    
      “Regular service. — Master, 12th ' March, 1868; lieutenant, 18th December, 1868; lieutenant-commander, 3d July, 1870;. commander, 6th March, 1887.”
    II. He has never received any benefit of longevity pay under the act of March 3, 1883. (22 Stat., 473.)
    III. If his prior service were credited on his grade of lieutenant-commander he would be entitled under that act to $796.08.
    IY. If credited on his grade of lieutenant with his service in prior grades he would be entitled under the act of 1883 to $4.17.
    
      Mr. Robert B. Dines and Mr. John Raul Jones for the claimant.
    
      Mr. F. R. Dewees (with whom was Mr. Assistant Attorney-General (Jotton) for the defendants:
    It is the contention of claimant that under the decision in Rockwell’s Oase (21 C. Cls. K., 332 ; 120 U. S. It., 20) he is entitled to the benefit of the Laval Longevity Pay Act of 1883 (22 Stat. L., 473) in the rank of lieutenant-commander, that being the rank he held at the time of the passage of the act of 15th July, 187Q (16 Stat. L., 330), giving graduated pay to ensigns, masters, lieutenants, and lieutenant-commanders.
    
      Rockwell’s case decided that he was entitled to the benefit of the Longevity Pay Act of 1883 in the lowest rank having graduated pay which he had actually held when the said act of 15th July, 1870, took effect, not when the law was passed.
    By the terms of said act of 1870 it took effect on the 30th •of Jane, 1870.
    “From and after the 30th of June, 1870, the annual pay of officers of the Navy on the active list shall be as follows. ”
    On the 30th of June, 1870, Rockwell was a lieutenant; he received the benefit of the Longevity Act of 1883 in that rank. It was the lowest rank having graduated pay in which he had ' actually served.
    There can be no question but that claimant served for three days as a lieutenant after the act took effect. He was paid from the 30th of June, 1870, to 3d of July, 1870, under the provisions of that act. He was paid in such rank under the provisions of the said act of 1870. '
    
    It follows, therefore, under the decision in Rockwell Case, supra, that he should receive the benefits of the act of 1883 in the grade of lieutenant.
    The act of 1870 was nob retroactive legislation in the sense of impairing vested rights. It impaired no contract with claimant. He had no vested right in longevity pay. Congress had the right by law to have affected Rockwell’s Longevity pay had it seen fit so to do. It could grant or withhold such pay at its •own will.
   Nott, J.,

delivered the opinion of the court:

This is an action brought by a naval officer to -recover longevity pay. The single question presented by the case is whether this longevity pay shall be computed on one grade or on another.

On the 1st July, 1870, the claimant was a lieutenant in the Navy; on the 15th he was a lieutenant-commander; between these two dates, viz, on the 3d July, he had passed from the one position to the other by promotion; that is to say, he had ceased to be a lieutenant and had become a lieutenant-commander.

On the 3d July, when the claimant thus exchanged offices, neither had attached to it what is known as longevity or graduated pay; but' on the 15th of the same month Congress, passed an act — the Naval Appropriation Act, 15th July, 1870 (16 Stat. L., 321, § 3) — which attached graduated pay to both. The office of lieutenant-commander, consequently, was the first grade having graduated pay ever held by the claimant, and the lowest.

On the 3d of March, 1883, Congress enacted another law, which is the statutory foundation of the claimant’s right of action, the Naval Appropriation Act, 3d March, 1883 (22 Stat. L., pp. 472, 473, § 1). This act declares that certain officers shall be credited with the actual time they have served, and shall receive all the benefits of actual service as if it had been continuous, and in the regular Navy; but this computation of actual time is to be limited to and based upon “ the lowest grade having graduated pay held by such officers since last entering the service.” As we have previously seen, “ the lowest grade having graduated pay held ” by the claimant was that of lieutenant-commander, a grade which he had acquired on the 3d July, 1870, and to which graduated pay was attached after he acquired the office, viz, on the 15th of that month.

If, then, the grade of lieutenant-commander was “ the lowest grade having graduated pay” ever held by the claimant; or, conversely, if there was no lower grade having graduated pay attached to it which the claimant had previously held and received the benefit of, why does not the grade of lieutenant-commander precisely answer to and comi>ly with the requirements and conditions of the act of 1883?

The negative answer to this question, suggested by the accounting officers of the Treasury, is to be found in the opening sentence of the third section of the Act 15th July, 1870, the statute which first attached graduated pay to both of tnese X>ositions. It is in these words:

“ From and after the thirtieth day of June, eighteen hundred and seventy, the annual pay of the officers of the Navy on the active list shall be as follows.” (16 Stat., 330.)

No better illustration can be found of the tireless vigilance and minute scrutiny which watch over the innumerable claims and demands that beset the Treasury than this application of these two lines to this officer’s claim for his statutory compensation. But while the court does appreciate and commend the vigilance and the scrutiny which thus watch over the interests of the Government, in at least one of its Executive Departments, it can not hold that a provision which made the new-pay of all naval officers begin to run from a designated day, whether antecedent or prospective, can modify the plain language of the act of 1883. That act declares that an officer’s graduated pay shall be computed according to “the lowest grade having graduated pay held” by him : and the Supreme Court has decided that this means having graduated pay attached to the office at the time the officer held it, and not “after he had ceased to hold it.” (Rockwell's Case, 120 U. S. R., 60.)

Whether the graduated pay was attached to the office of lieutenant in the Navy by immediate legislation or by prospective legislation or by retroactive legislation is immaterial if it was not attached until after the officer had ceased to be a lieutenant; and conversely, if the office of lieutenant-commander was the lowest grade held by the officer which had graduated pay attached to it at the time when he held it, it is the grade referred to in the act of 1883 upon which his graduated pay must be computed.

The judgment of the court is that the claimant recover of the defendant the sum.of $796.08.  