
    EDWARD T. STRONG v. THE UNITED STATES.
    [No. 15205.
    Decided December 12, 1887.]
    
      On the Proofs.
    
    A case similar if not identi cal -with, the present one was determined in favor of the claimant, and affirmed hy the Supreme Court (21 C. Cls. R., 148). It is now argued by the counsel for the Government that this case does not come within the previous decision, because of a difference in the character of the service on a receiving and on a training ship in the Navy.
    I.Section 1571 Revised Statutes defines sea-service. Under it the facts necessary to constitute sea-service are, that it “is performed at sea,” “ under the orders of a Department,” “ hy authority of lato.”
    
    
      II.“At sea” does not require that the ship-be on the “high seas,” but upon waters of the sea.
    III. The Navy Department cannot arbitrarily indicate the legal character of a service, and thereby determine the compensation incident to it.
    IV. It is impossible to discriminate in law between service on a receiving and service on a training ship. They differ in degree, but the difference can not affect the question of compensation. [Affirmed, vide post.]
    
      The 'Reporters' statement of tlie case:
    This case was appealed and submitted at the same term, and was affirmed by the Supreme Court. The following are the facts as found by the court below, and upon which the case was considered by the court above:
    
      I. The claimant was a lieutenant-commander iu the United States Navy, of less than five years’ standing, during all the period covered by this claim.
    II. On the 4th day of February, 1886, claimant was ordered to report on board the United States receiving ship Wabash for duty, and did so report on the 20th day of February, 1886, and continued from that time henceforth, down to the 4th day of May, 1886, to discharge his duties on board said ship; that bo performed the duties of executive officer of said vessel, which said duties are similar to those of executive officers on cruising ships, and in addition to these general duties he had others which were more exacting and arduous than those onboard cruising ships.
    III. Said duties and the character of the service of the claimant have remained the same since the date he reported for duty on said vessel.
    IY. During the time he was attached to said vessel, claimant was required to have his quarters on board, and was obliged to wear his uniform, to mess there, and was not permitted by the rules of the service to live with his family.
    Y. Since the date when the claimant reported on board the Wabash, she has been anchored in Boston Harbor, about 300 feet from the shore, to which there was communication by means of boats.
    YI. During the entire period of his service on board said vessel, he has been allowed only shore pay of an officer of his-grade, and has neither been allowed a ration nor commutation therefor.
    VII. The Wabash has remained in the same place in which she was anchored since the 28th day of October, 1875; the said vessel is now, has been, and was, during the period of service thereon by the claimant, under the orders and direction of the Secretary of the Navy; during the period of the claimant’s service thereon she was not in a safe condition for cruising; she is a sailing and steam vessel aud had on board sails, spars, and tackle; she was capable of being taken out to sea under steam, her machinery and boilers being sufficient for that purpose; she could have been taken out to sea under sail, but in the condition of her boilers and machinery, and her sailing apparatus, without repairs, it would not, in either ease, have been advisable or safe.
    
      VIII.Oh the 4th of February, 1886, the claimant was ordered to report for duty on board the United States receiving ship Wabash, as follows:
    “NAVY DEPARTMENT,
    “ Washington, February 4, 1886.
    “ Sir : Proceed to Boston, Mass., and report to Commander Kimberly, on the 20th instant, for duty as executive on board the United States receiving ship Wabash.
    “ This employment on shore duty is required by the public interests, and such service will continue until 20th February, 1889, unless it is otherwise ordered.
    “ Respectfully,
    “W. C. Whitney,
    54 Secretary of the Wavy.
    
    “ Lieut. Com. Edward T. Strong, U. S. Navy,
    “ Walcefield, Mass.”
    
    IX. Claimant’s service aboard the United States receiving ship Wabash continued from the 20th day of February, 1886, until the 4th of May, 1886, during which period he has been allowed and paid shore pay of an officer of his grade, and has not been allowed a ration nor commutation therefor.
    X. United States receiving ship Wabash, during the time of claimant’s service thereon, was not in what is technically known as a commission for sea service.
    XI. Duty on board a receiving ship since 1843 has not been regarded as “.sea service.” The Navy order then adopted was as follows:
    “Navy Department, November 1,1843.
    “ The receiving ships at the several stations are not to be •considered ‘ vessels in commission for sea service,’ except, as may sometimes be the case, while going from one port to another.
    “David Henshaw,
    “ Secretary of the Wavy.”
    
    XII.Receiving ships are not regarded by the accounting officers of the Treasury as vessels in commission for sea service, nor their officers as entitled to sea pay or rations allowed to officers on sea duty. (Digest of Second Comptroller’s Opinions of 1853, par. 561; Comptroller’s Digest of 1869, par. 1840.)
    
      XIII. A note is printed in the Navy Register of 1859 and 1860, as follows:
    “Note. — The sea and other service affixed to the names of officers in the Eegister is computed to the 1st of January, 1859. As a general rule the ‘sea service’ with which an officer is. credited is for duty performed under orders from the Department as part of the complement of a vessel of war belonging to the Navy, in commission for sea service. Officers on the Coast Survey are allowed sea service for the time they are actually afloat. No credit is given for service in revenue and merchant vessels.” * * *
    XIV. Sea pay and rations are not allowed to officers attached to vessels not in commission for sea service.
    XV. Naval Regulations of 1876 (p. 85, par. 38) is as follows:
    “Duty on board a sea-going vessel of the Navy in commission, on board a practice ship at sea, or on board a Ooast.Sur-vey vessel actually employed at sea, will be regarded by the Department as sea service.”
    XVI. By Naval Regulations sea pay is sometimes allowed naval officers when not “at sea.”
    XVII. The Wabash is a receiving ship, built of wood, about thirty-one years old, stationed at the navy-yard in Boston for over twelve years past. The vessel is and has been used as a naval recruiting station whilst at the Boston navy-yard. There is a roof built over the decir. The ship is connected and communicates with shore by a rope. There is a large boat or scow that plies between the ship and the wharf by means of a crank and connected with the rope. Steam is used only for heating purposes and pumps. All the anchors have never been taken up at the same time. Row-boats were also used in going to and from the ship.
    XVIII. It has been the general custom only to allow sea pay to officers attached to vessels in commission for sea service.
    XIX. During the period of service for which claimant demands sea pay in this suit the Wabash has not been in commission for sea service, as by the designation of the Secretary of the Navy.
    
      Mr. Linden Kent for the claimant:
    All of the constituent elements in the case of Symonds v. The United States, which were found both by the Court of Claims and the Supreme Court of the United States to entitle the claimant to sea pay, are present in the case at bar.
    We have the three elements which, under the statute, in accordance with the opinion of the Supreme Court, entitle the claimant to sea pay:
    (1) Service under the order of the Secretary of the Navy.
    (2) In a vessel employed with authority of law.
    (3) Such services jierformed “ at sea.”
    Sea service can not be converted into shore service by executive orders if they were in fact performed when at sea. As to the character of the service, it is established by the testimony that the claimant performed the duties of an executive officer on board the Wabash, which duties are similar to those of executive officers on board a cruising ship; that during* the time he was required to have his quarters on board the vessel, to wear his uniform, and' was not permitted, by the rules of the service, to live with his family. In some respects there were additional duties, and more arduous than duty on board a cruising ship.
    The feature that determines the nature of the service with respect to the officer are the regulations, which are the same whether the vessel be in order for cruising or not.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    This is not a parallel case with that of Symonds v. The United States (100 U. S. R., 46).
    The decision of the court in that case is in substance that the Secretary of the Navy is controlled by the law and by naval regulations made in conformity with law. It decides that if a training-ship in the Na.vy is employed by authority of law in active service (i. e., a sea-going vessel) at sea, the officers belongiug to such vessel shall be entitled to sea pay, although employed in bays, inlets, roadsteads, etc.
    “When at sea” means “sea service” as used in the statutes and naval regulations. In the earlier statutes (4 Stat. L., 753) the term “sea service” is used. In the early days of the Republic the pay of naval officers was not graded according to the character of the service rendered. When the distinction was first made “sea service” was placed in apposition to “shore duty,” as in the later statutes “ when at sea” is placed in apposition to “shore duty.” It’can have no other reasonable meaning.
    It becomes, therefore, important to define what is meant by “seaservice.” Section 1871 Revised Statutes provides: “No service shall be regarded as sea service except such as shall be performed at sea, under the orders of a Department, and in vessels employed by authority of law.” This is interpreted in the Symonds Case (supra), to mean “ services performed under the orders of the Navy Department,'in a vessel employed with authority of law in active service” at sea.
    An officer may be on naval duty and be a passenger on board a United States vessel, and yet not be entitled to sea pay. The decision of this court in Sehoomalcer's Case (19 C. Cls. It., 172) is not contravened by the Symonds Case (supra). In the Schoomaker Case it was without question that claimant had served one hundred and eight days on vessels employed by authority of law, and in active service, but he had not been ordered to' perform sea service. As a naval officer on duty aboard a naval vessel, he had to conform to the rules of the service. The court is also referred to Carpenter's Case (15 C. Cls. R., 247).
    The Naval Regulations in force at the time of the passage of the third section of the Act of 1860 (12 Stat. L., 27), of which section 1571 is a reproduction, had the force of law. (Gratiot v. The United States, 4 How., 80, and JEx parte Heed, 100 U. S. R., 13.) Section 1571, therefore, by familiar rules of construction must be interpreted in connection therewith.
    Longprior to 1860 duty on board receiving ships was regarded by the Navy Department as “ shore duty.”
    In the year 1843 the following order was issued by (he Secretary of the Navy:
    “Navy Department, November 1, 1843.
    “ The receiving ships at the several stations are not to be considered ‘ vessels in commission for sea service,’ except, as may sometimes be the case, in going from one port to another.
    “David Henshaw,
    “ Secretary of the Navy.”
    (Naval Register, 1S60, p. 146.)
    It was held by the Second Comptroller that receiving ships were not to be regarded as vessels in commission for sea service, and that consequently the officers are not entitled to sea pay. (Digest of Second Comptroller’s Opinions of 1853, par. 561 ib., 1869, par..! 840.)
    Section 1547 Bevised Statutes is to the effect that the regulations of the Secretary of the Navy issued prior to July 14, 1862, with such alterations as he may since have adopted, with the approval of the President, shall be recognized as the regulations of the Navy.
    Sections 1547 and 1571 are pari materia, and must be construed together. If they are so construed, it is submitted that duty on board a receiving ship,£i except, as may sometimes be the case, while going from one part to another,” must be regarded as shore duty.
    It has been the uniform practice of the Navy Department and of the accounting officers of the Treasury since 1843 to regard duty on board receiving ships as shore duty. One reason of this is owing to the character of the duty to be performed. A receiving ship is the equivalent of a recruiting barrack in the Army. Becruits are received on board and detailed to ships that are in active service. The recruiting service is as a rule performed on shore. The examination and enlistment of recruits may be made on shore or on board the vessel.
    Under the rules of the service, duty on board a receiving ship is “ shore duty,” irrespective of the condition of the vessel. Becruits could be enlisted on shore as well as on board a vessel.
    It can hardly be contended under the facts in this case that the Wabash was in active service. The vessel was built of wood and is about thirty-one years of age, is unseaworthy, could not be put to sea without having- practically a new hull: has not had all her anchors up at one time for thirteen years. She lies 300 feet from shore; is connected with the shore by a rope, by means of which communication is had with the shore. A roof is built over her. The vessel is nearly as stationary as the shore, an island, or a light-house.
   Weldon, J.,

delivered the opinion of the court:

The claimant alleges as a cause of action, an unpaid balance due him as a lieutenant-commander in the Navy, for a period commencing on the 20th day of February and ending on the 11th of May, 1886. During that time he was paid for “ shore service,” when, as be alleges, be should have been paid for “sea service,” and tbis suit is brought to recover the difference of pay between the two forms of duty» A case very similar, if not identical with the one made by the findings in tbis proceeding, was determined by this court in favor of the claimant, which, on appeal, was affirmed by the Supreme Court. (Symonds v. United States, 21 C. Cls. R., 148; 120 U. S. R., 46.)

It is argued by counsel for the Government that'this case does not come within the law announced in the Symonds Case, because of a difference in fact between a receiving ship and a training ship in the character of service performed on each.

The ship in the Symonds Case (the New Hampshire) was ordered by the Secretary of the Navy, on the 30th of June, 1881, in commission “ for sea service,” but on the 7th of July, 1882, that order was modified as follows: “ Will not be considered in commission for sea service.” The nature of the service continued under the second order, although the technical commission of tfie ship was changed by the direction of the Secretary. Notwithstanding that change, the Court of Claims held that the original service being essentially sea service was unaffected by the order of the Secretary, and this view of the law was affirmed by the Supreme Court.

Section 1571 Bevised Statutes was intended to define sea service, and it is not reserved to the Secretary of the Navy to perform that duty by a regulation. (Symonds Case, 21 C. Cls. R., 154.)

Said section provides:

“No service shall be regarded as sea service except such as are performed at sea, under the orders of a Department, and in vessels employed by authority of law.”

Unde .’ this provision of the statute three facts are necessary to constitute sea service, to wit, “performed at'sea” — “under the orders of a Department ” — “ employed by authority of law.” If these concur in a given service they confer upon the party the legal right to have the pay allowed by law for such service.

“At sea,” as was determined in the Symonds Case, does not require that the ship be on the “ high sea,” but upon waters of the sea. And the condition of the Wabash, the ship in this case, is, in law and fact, the exact condition of the ship iff the Symonds Case. “ Under the orders of a Department,” as used in tbe statute, simply requires that tbe service for which the party claims shall be performed by the direction and at the instance of a Department. Without the sanction, requisition, or order of a Department, the services would be without legal consideration; and for such services no recovery could be had. But while the sanction or order of a Department is necessary, it does not follow that such Department may arbitrarily indicate the legal character of such service, and thereby determine the compensation incident to such service.

No question can arise in this case upon the last requisite “employed by authority of law,” because the vessel belonged to the Navy, and was in the service of that branch of the Government in the performance of a duty clearly within the power of that Department. The Supreme Court says:

“ We concur in the conclusion reached by the Court of Claims, namely, that the sea pay given in section 1556 may be earned by services performed under the orders of the Navy Department, in a vessel employed with authority of law in active service in bays, inlets, roadsteads, or other arms of the sea, under the general restrictions, regulations, and requirements that are incident or peculiar to service on the high seas. She was a training-ship, anchored in Narragansett Bay during the whole time covered by the claim of appellee, and was subject to such regulations as would have been enforced had she been put iu order and used for the purpose of cruising, or as a practice ship at sea. Within the meaning of the law, Symonds, when performing his duties as executive officer of the New Hampshire, was ‘ at sea.’”

The defense seeks to distinguish the services in this case from the service in the Symonds’s, and much stress is laid on the term “ active,” as used by the Supreme Court in the designation of the duty performed by Symonds. It is impossible to discriminate in law between the services in the two cases. The one may be more active, than the other, but they are both active in the performance, of a duty, differing, it may be, in degree, but not affecting the question of compensation.

The highest form of activity may be discharged in a naval engagement, and the lowest form may be on a receiving ship, but the court can not establish legal principles founded on degrees of activity. Such a distinction would introduce into the administration of the law an element subversive of-general principles, and tend to the confusion of a system which otherwise would be plain and consistent.

The issue is not a question of discipline or government in the Navy, and does not affect the prerogative of the Secretary; but it is a simple question of compensation — of pecuniary right, and to the forum of judicial determination, must that right be committed.

Unable as we are to discern any difference in law between the Symonds Case and the case of the claimant, we must follow the authority of the Supreme Court and find the issues for the petitioner. It is, therefore, the judgment of the court that he recover from the defendants the sum of $111.20.  