
    JOHN N. QUACKENBUSH v. THE UNITED STATES.
    [No. 20880.
    Decided April 25, 1898.]
    
      On the Proofs.
    
    The claimant, a commander in the Navy, is tried hy court-martial, sentenced to he dismissed, and the sentence is approved hy the President June 5, 1874; notice thereof is mailed to his address hy the Secretary of the Navy June 9, and received hy him June 12. The day after the notice is mailed the President nominates W. S. Schley to he commander, “vice Quackeñbush, dismissed." Two days later Schley is confirmed and commissioned. On the same day on which he is confirmed, the Secretary addresses a communication to the claimant requesting him to “return to the Department, the order dismissing him." On the 8th December following the Secretary addresses a letter to the claimant informing him that his “ sentence toas, on the 9th day of June, 1874, mitigated to suspension from rank and duty on furlough pay for six years, the suspension to date from that day.” The claimant remains under suspension and is paid furlough pay for six years. On March 31,1881, he is taken on the paymaster rolls and paid as on “tsailing orders.” On August 1, 1883, his name is dropped from the official Navy Register then published. In December, 1883, the President nominates D. W. Mullan to he commander, “vice John N. Quackeñbush, no longer in the service," which nomination is confirmed and Mullan commissioned, filling the quota of commanders. A private act is passed authorizing the President “to appoint”the claimant “to the same grade and rank as of the date of August 1, 1888.”
    
    I. Where Congress authorize the President to appoint one “ late a commander in the United States Navy to the same grade and rank * *■' * as of the date of August 1, 1888, and to place him on the retired list of the Navy as of dateJunel, 1895," with a proviso “that he shall receive no pay or emoluments except from the date of such reappointment,” the appointment fixes the status as to grade and rank, hut not as to pay or emoluments. They begin with the date of reappointment.
    II. A proviso must be construed so as to give an effect to a statute different from that which would exist without it.
    
      III. A statute must Re construed as a whole and effect he given to every part. Hence, when a statute provides that no pay or emoluments shall accrue “except from the date of such reappointment,” “such date” being May 26, 1897, the act limits his right to pay to that date, though for the purpose of fixing his status as to grade and rank he was appointed “ as of the date of August 1, 1883.”
    
    
      The Reporter’s statement of tbe case:
    Tbe following are tbe facts, of tbe case as found by the court:
    I. Claimant was duly and legally commissioned a commander in tbe Navy of tbe United States, by and with tbe consent of tbe Senate, on tbe 2d day of January, 1872, to take rank from tbe 25th day of May, 1871.
    II. Thereafter, to wit, in tbe month of February, A. D. 1874, certain charges were filed against claimant before tbe Navy Department, and a court-martial duly organized to try the same; and after having a full and lawful hearing upon tbe sainé, claimant was sentenced by tbe said court-martial “to be dismissed from tbe naval service of tbe United States.”
    This sentence was approved by tbe President, and tbe Hon. George M. Eobeson, then Secretary of the Navy, on the 9tk of June, 1874, addressed tbe following to claimant, at Boston, Mass.:
    “Tbe naval general court-martial by which you were tried at Washington, D. C., in February last, found you guilty of tbe charges preferred against you, and sentenced you ‘to be dismissed from tbe naval service of tbe United States,’ and the President of tbe United States having approved tbe sentence, you will, from this date, cease to be an officer of the Navy.”
    III. Thereafter, to wit, on tbe 12th day of June, 1874, tbe Secretary of tbe Navy addressed tbe following letter to claimant:
    “Navy Department,
    “ Washington, JD. 0., June 12,1874.
    
    “Sir: You will please return to tbe Department tbe order dismissing you from tbe Navy.
    “Bespectfully, “Geo. M. Eobeson,
    “ Secretary of the Navy.
    
    “Commander John N. Quaokenbush, U. S. Navy.”
    
    IY. Both tbe foregoing letters were, in due course of mail, delivered to claimant at one and tbe same time, to wit, on or about tbe 15th day of June, A. D. 1874, claimant then being at Grantville, Mass.
    
      Y. In obedience to said order of June 12,1874, addressed to him officially as a commander in the Navy, claimant did, on or about the said 15th day of June, A. D. 1874, return said order dismissing him from the Navy, inclosed in the following official communication:
    ' “103 Mount Vernon St., Boston, Mass.
    
    “Ser: I have to respectfully acknowledge the receipt of your communication of the 12th inst., and in obedience thereto herewith inclose my letter of dismissal from the Navy.
    “ I am, very respectfully, your obedient servant,
    “ J. N. Quaokenbush,
    “ Commander, U. 8. Navy.”
    
    YI. Thereafter, to wit, on the 8th day of December, A. D. 1874, the Secretary of the Navy officially addressed to claimant, as a commander in the Navy, the following letter:
    “ Navy Department,
    “ Washington, D. C., December 8th, 1874.
    
    “ Sir : The naval general court-martial by which you were tried in February last found you guilty of the charges preferred against you and sentenced you to be dismissed from the naval service of the United States.
    “ This sentence was on the 9th day of June, 1874, mitigated to suspension from'rank and duty on furlough pay for six years, the suspension to date from that day.
    
      “ Yery respectfully,
    “ George M. Robeson,
    “ Secretary of the Wavy.
    
    “ Commander John N. Quaokenbush, U. S. Navy,
    
    “ 103 Mount Vernon street, Boston, Mass.”
    
    VII. Pursuant to said commuted sentence, and by virtue thereof, claimant was placed under suspension and was borne upon the official printed Navy Register as a commander in the Navy “ under suspension,” as indicated by a star and a note to that effect, as is usual in such cases, from the year 1874 up to and including the year 1880, when his said sentence of suspension on furlough pay for six years expired, and from and after the date of the expiration of said sentence he was borne upon said official printed Navy Register as a commander in the Navy on waiting orders up to the publication of said register for the year 3883, when his name was omitted and dropped from the same by direction of the Secretary of the Navy.
    During the whole of said period he retained his proper and legal place on the official list of commanders in the Navy, and was advanced in numbers from year to year, as promotions of bis seniors in said grade occurred, in tbe same manner and in all respects in tbe regular course, as other officers in bis said grade and rank were advanced.
    VIII. From tbe 9th day of June, A. D. 1874, up to tbe day of June, A. D. 1880, claimant was paid, pursuant to said sentence of court-martial, at tbe rate of $1,150 per annum, tbe same being the furlough pay of bis grade and rank.
    IX. On or about tbe 10th day oí June, A. D. 1880, and immediately after tbe expiration of bis said sentence of court-martial, claimant officially reported to tbe Navy Department for such duty, pertinent to bis grade or rank, as might be assigned to him, and also on the 2d day of June, 1880, wrote to the proper accounting officer of tbe Treasury requesting him to direct the paymaster at tbe navy-yard, Boston, Mass., to credit him, tbe said claimant, with tbe proper rate of pay from and after tbe 9th day of June, A. D. 1880. In reply to tbe said letter to tbe accounting officer of tbe Treasury, as aforesaid, claimant received a communication of date June 5,1880, notifying him that tbe said paymaster bad been authorized to take him, said claimant, upon bis pay rolls, as on “waiting-orders pay.” In obedience to such authorization tbe said paymaster took claimant upon bis pay rolls and paid him as on “ waiting-orders pay ” from tbe 9th of June, A. D. 1880, up to and including tbe 31st day of March, A. D. 1881, from and after which last-mentioned date claimant has never received any pay, allowances, or emoluments of any kind whatsoever from tbe Government of tbe United States for bis services as a commander in tbe Navy, excepting only as hereafter set forth in finding xvm.
    X. On tbe 13th day of December, A. D. 1877, tbe then Secretary of tbe Navy wrote tbe following letter of inquiry to tbe Attorney-General of the United States :
    “ Navy Department, December 13,1877.
    
    
      u Sir : I have tbe honor to submit to you tbe following statement of facts:
    “ John N. Quackenbush, a commander in tbe Navy, was tried by court-martial on certain charges preferred by tbe Secretary of tbe Navy, under date of February 6,1874; was found guilty of tbe charges, and sentenced to be dismissed from tbe naval service of the United States.
    “ Tbe record of proceedings and findings of tbe court-martial was submitted by letter in tbe following words to tbe President of tbe United States:
    
      “ ‘ Navy Department, Juné 4,1874.
    
    “‘ Sir: I bave tbe honor to submit herewith the record of the proceedings of a naval general court-martial in the case of Commander John N. Quackenbush, of the Navy, who has been found guilty of the charges of “ drunkenness” and ‘‘scandalous conduct tending to the destruction of good morals,” and sentenced to “be dismissed from the naval service of the United States.”
    “ ‘ Very respectfully,
    “‘Geo. M. Eobeson,
    “‘ Secretary of the Navy.
    
    “‘The President.’
    “ The President indorsed the record, as follows:
    “‘Executive Mansion, June 5,1874.
    
    
      ■ “ ‘ The sentence of dismissal in the case of Commander John N. Quackenbush is hereby approved.
    “‘U. S. Grant.’
    “Whereupon the following letter was addressed to Mr. Quackenbush by the Secretary of the Navy:
    “ ‘Navy Department, June 9,1874. “‘Commander John N. Quackenbush,
    
      111103 Mount Vernon street, Boston, Mass,
    
    “ ‘ Sir: The naval general court-martial by which you were tried at Washington, D. C., in February last, found you guilty of the charges preferred against you, and sentenced you “ to be dismissed from the naval service of the United States,” and the President of the United States having approved this sentence, you will, from this date, cease to be an officer of the Navy.
    “ ‘ Very respectfully,
    “‘Geo. M. Eobeson,
    “ ‘ Secretary of the Navy.’
    
    “And the Auditor of the Treasury was notified the same day.
    “ June 10, 1874, Lieut. Commander Winfield S. Schley was nominated ‘ to be a commander in the Navy from the 10th of June, 1874, vice Commander John N. Quackenbush, dismissed,’ and was confirmed June 12,1874, and a commission issued to him on the same day.
    “ June 12, 1874, the Secretary of the Navy addressed the following communication to Mr. Quackenbush:
    “ ‘ Navy Department, June 12,1874.
    
    “ ‘ Sir: You will please return to the Department the order dismissing you from the Navy.
    “ ‘ Eespectfully, “ ‘ Geo. M. Eobeson,
    “ ‘ Secretary of the Navy.
    
    “ ‘ Commander J. N. Quackenbush, U. S. Navy.’
    
    
      “ In reply to this Mr. Quackenbush returned the said letter of dismissal with a letter to the Secretary of the Navy in the following words:
    “ ‘ 303 Mount Vernon St., Boston, Mass.
    “ ‘ Sir : I have to respectfully acknowledge the receipt of your communication of the 12th instant, and in obedience thereto herewith inclose my letter of dismissal from the Navy.
    “ ‘ I am, very respectfully, your obedient servant,
    “ ‘ J. N. Quackenbush,
    “ 1 Commander, TJ. 8. Wavy.
    
    “ 1 Hon. Geo. M. Robeson,
    “ ‘ Secretary of the Navy, Washington, D. C?
    
    “December 8, 1874, the Secretary of the Navy wrote to Mr. Quackenbush as follows:
    “ ‘ Navy Department, 8th December, 1874.
    
    “ ‘ Commander J. N. Quackenbush,
    “ ‘ No. 103 Mt. Vernon st., Boston, Mass.
    
    “ ‘ Sir: The naval general court-martial by which you were tried in February last found you guilty of the charges preferred against you and sentenced you ‘to be dismissed from the naval service of the United States.’
    “ ‘ This sentence was, on the 9th day of June, 1874, mitigated to suspension from rank and duty, on furlough pay, for six (6) years, the suspension to date from that. day.
    “ 1 Very respectfully,
    “ ‘ Geo. M. Robeson,
    “ ‘ Secretary of the Navy?
    
    “ And the Fourth Auditor of the Treasury was so notified the same day.
    “Your opinion is desired as to whether it is competent to admit parole evidence that the President assented to the mitigation, on the 9th day of June, of the sentence of dismissal; and, if so, whether the President had the power to so remit after the sentence of dismissal had been approved and duly executed and the vacancy filled.
    “ Very respectfully,
    “ R. W. Thompson,
    “ Secretary of the Navy.
    
    “Hon. Chas. Devens, Attorney-General?7
    
    The Attorney-General, in answer thereto, on the 16th day of March, A. D. 1878, advised the said Secretary of the Navy that claimant was, in fact and in law, an officer in the Navy; and the said Secretary of the Navy acted upon such advice, and thereafter recognized the claimant as a commander in the Navy of the United States. Thereafter, under the authority and direction of the Secretary of the Navy, claimant served out the unexpired portion of said sentence of court-martial, as ' commuted as aforesaid.
    XI. On the 10th day of June, A. D. 1874, the next succeeding the date of the commutation of claimant’s said sentence of court martial, the President nominated to the Senate the name of W. S. Schley to be a commander in the Navy, “vice Quack-enbush, dismissed,” and the same was duly confirmed on the 12th day of June, A. D. 1874; the same day upon which the Secretary of the Navy ordered “John N. Quackenbush, commander, United States Navy,” to “return to the Department the order dismissing him from the Navy,” as set forth in request for findings hi.
    • XII. The records of the Navy Department show that there were ninety commanders borne on the active list of the Navy from the date of the appointment of W. S. Schley to August 5,1882, the date when the number was reduced by law, except during the early part of 1879, when the list was temporarily increased to ninety-one by the restoration of Lieut. Commander JET. B. Mullan to his original position on the list of commanders by act of Congress.
    XIII. On the 13th day of April, A. D. 1882, the Secretary of the Navy addressed the following letter to the Hon. B. W. Harris, chairman Committee on Naval Affairs, House of Representatives:
    “Navy Department,
    “ Washington, D. G., April 13,1882.
    
    “ Sir : I have the honor to acknowledge the receipt of your communication of the 6th instant, inclosing the bill H. R. 5300, ‘to confirm the status of John N. Quackenbush, a commander in the United States Navy,’ and requesting my views as to the propriety of the passage of the bill.
    “In reply I have to state that it appears to have been the intention of the President in exercising clemency in the case of Commander Quackenbush that he should be retained in the service. The sentence of the court as mitigated was fully executed, and during the period of his suspension from duty under that sentence, and until April last, Commander Quack-enbush was officially recognized as an officer of the Navy.
    “It also appears from testimonial letters presented to the Department- by Commander Quackenbush that since his suspension from duty in 1874 to the present time his conduct has been unexceptionable. .
    “In yiew of all the circumstances in this case, it seems just that Commander Quackenbush should be entitled to the benefit of the clemency which the President evidently intended to exercise in his behalf.
    “The bill is herewith returned.
    “Very respectfully,
    “William H. Hunt,
    “ Secretary of the Wavy.
    
    “Hon. B. W. Harris,
    “ Chairman Committee on Waval Affairs,
    
      u House of Representatives.”
    
    XIY. The following appears opposite claimant’s name on page 207 of the Register of the Navy, “ G ” No. 1, one of the records of the Navy Department:
    “208. John N. Quackenbush.
    “ Left off the Register published 1st August, 1883, by direction of the Secretary of the Navy; his action being based upon a decision of the Supreme Court.”
    XV. On or about the Gth day of December, A. D. 1883, the Secretary of the Navy designated to the President D. W. Mullan to be a commander in the Navy, “ vice John N. Quack-enbush, no longer in the service;” and in the said month of December the President of the United States sent to the Senate of the United States the nomination of said Mullan to be a commander in the Navy from the 3d day of July, 1882, “ vice John N. Quackenbush, no longer in the service,” which said nomination was duly confirmed, and thereupon the said Mullan was commissioned to rank from said latter date.
    XYI. On the 15th day of April, 1895, claimant filed his petition before the Secretary of the Navy, praying that he be restored to his proper position on the list of naval officers, from which he had been removed, but the said Secretary of the Navy refused to grant claimant any relief whatsoever, holding that the matter of his rights was res judicata, under the action taken by his predecessor, as fully set forth in findings xiy and xv.
    XVII. Thereafter, to wit, May, 1895, claimant filed a petition in the supreme court of the District of Columbia, praying that a writ of mandamus issue, directed to the Secretary of the Navy, commanding and requiring him to put claimant’s name back on the list of naval officers, from which it had been, through error, mistake, neglect, .or inadvertence, illegally dropped or omitted, and Associate Justice Bradley, of said court, did on, the lltb day of February, 1896, refuse to issue said writ.
    XYIII. Thereafter, and in pursuance of the terms of the act passed for his relief, the President nominated the claimant to the Senate to be a commander on the retired list of the Navy, and he was duly confirmed and took the oath of office as was required of him so to do, on the 26th day of May, A. D. 1897, since which last-mentioned date he has been paid at the rate of $2,625, the same being three-fourths of the sea pay of a commander in the Navy on the active list.
    XIX. Claimant reached the age of 62 on the 31st day of May, A. D. 1895.
    COXTNTEB.OLAIM.
    During the period of service by the claimant under suspension, to wit, from June 9,1874, to June 9,1880, he was paid the sum of $1,150 per annum, or $6,900; and while serving on leave or waiting orders, from the latter date to March 31,1881, he was paid at the. rate of $2,300 per annum, $1,794.90, amounting in the aggregate to $8,694.90, which latter amount the defendants ask may be set off against so much of any sum which may be found due the claimant, if any; and they ask judgment against him in their favor for said sum or any balance that may remain in their favor in case of set-off as aforesaid.
    
      Mr. John Paul Jones and Mr. Bichard B. Beall for the claimant.
    
      Mr. George Tí. Wallcer (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Peelle, J.,

delivered the .opinion of the court:

The claimant seeks to recover under the following statute the pay of commander in the United States Navy as on leave or waiting orders from August 1, 1883, to June 1, 1895, and three-fourths of the sea pay provided by law for a commander on the retired list from the latter date to May 26,1897:

AN ACT for tlio relief of John N. Quackenbush, late a commander in the United States Navy.
“Be it enacted by the Senate and House of Bepresentatives of the United States of America in Congress assembled, That the provisions of law regulating the appointments in the Navy by promotion in the line and limiting the number of commanders to be appointed in the United States naval service are hereby suspended for tbe purpose of this act only, and only so far as they affect John N. Quackenbush; and the President of the United States is hereby authorized, in the exercise of his discretion and judgment, to nominate and, by and with the advice and consent of the Senate, to appoint the said John N. Quackenbush, late a commander in the United States Navy, to the same grade and rank of commander in the United States Navy as of the date of August 1,1883, and to place him on the retired list of the Navy as of the date of June 1, 1895: Provided, That he shall receive no pay or emoluments except from the date of such reappointment.”

The facts are:

The claimant, while a commander in the United States Navy, was tried by a general court-martial and sentenced to be dismissed from the naval service of the United States, which sentence was approved by the President June 5,1874, with his sign manual, official notice of which was mailed to the claimant at his address in Boston, Mass., by the Secretary of the Navy, June 9,1874.

The next day, June 10, the President nominated W. S. Schley to the Senate to be commander, “vice Quackenbush, dismissed,” and two days later, June 12, he was confirmed, and thereafter duly appointed commander by the President, the full quota of ninety commanders then allowed by Revised Statutes, section 1363, thereby being filled.

The same day on which Schley was confirmed, June 12, the Secretary of the Navy addressed a communication to the claimant requesting him to “return to the Department the order dismissing him from the Navy,” and by reason of the claimant being in Grantville at that time instead of Boston, the communication of June 9, notifying him of the President’s approval of the sentence of dismissal, as well as the one of June 12, requesting him to return the order of dismissal, were both delivered to him at the same time — June 15.

December 8,1874, the Secretary of the Navy addressed a letter to the claimant, by which he was informed that the naval general court-martial, by which he had been tried and found guilty of the charge preferred against him and sentenced to be dismissed from the naval service, had, on June 9,1874, been “mitigated to suspension from rank and duty on furlough pay for six years, the suspension to date from that day.”

The claimant served under suspension and was paid as on furlough for six years, and from June 9,1880, to March 31,1881, be was taken on tbe rolls of tbe paymaster at tbe navy-yard, Boston, Mass., and paid as on “waiting orders.”

Tbe claimant’s name was left off tbe official Navy Begister, published August 1,1883, by direction of tbe then Secretary of tbe Navy, and thereafter, in December, 1883, tbe President nominated D. W. Mullan to tbe Senate to be commander “vice John N. Quackenbush, no longer in tbe service,” which nomination was confirmed, and said Mullan was thereafter duly appointed commander by tbe President, thus again filling tbe quota of commanders then allowed by law.

Tbe claimant’s contention is that be was never legally out of tbe naval service, while tbe defendants insist that tbe sentence of the court-martial, so approved by tbe President, followed by tbe appointment, with tbe advice and consent of tbe Senate, of W. S. Schley as commander in tbe claimant’s stead, operated to dismiss or remove him from tbe service, and that it was not within tbe power of tbe President to annul tbe sentence or to mitigate it to suspension, and that, therefore, tbe money paid him while under suspension and while on waiting-orders was illegally paid, and should be set off against so much of any snm which may be found due tbe claimant, and judgment rendered against him for any balance due tbe defendants.

Tbe validity of the sentence of the court-martial to dismiss, or of tbe appointment by tbe President of W. S. Schley to remove, tbe claimant from tbe naval service becomes important here only in respect of the claimant’s right to retain tbe money thereafter paid to him j for, conceding that tbe claimant was legally out of tbe service, either by dismissal or by removal, as tbe Congress, by the special act authorizing bis reappointment manifestly assumed, still it was within tbe power of Congress to pass tbe act authorizing tbe President, with tbe advice and consent of tbe Senate, to reappoint tbe claimant commander as of any date subsequent to tbe date of dismissal under tbe sentence of tbe court-martial.

Tbe Congress by their act construe tbe sentence and tbe action of tbe Executive as having terminated tbe claimant’s service in tbe Navy by referring to him as “late commander in tbe United States Navy” and by providing for bis reappointment “to tbe same grade and rank” theretofore held by him, which appointment be accepted and still bolds.

That tbe Congress were of the opinion that some injustice bad been, done tbe claimant is evident from the act, as otherwise his appointment would not have been authorized, and certainly not “ as of the date of August 1,1883.”

But whether the claimant was, by virtue of the sentence of the court-martial or of the appointment of W. S. Schley, legally out of the naval service at the time of the passage of the act authorizing his reappointment we deem it unnecessary to determine, as we are of the opinion that the rights of the parties must be measured by the act under which the claimant seeks to recover.

The act, as we have said, assumes that some injustice has been done the claimant, and if so it would not be consistent therewith to hold that the defendants were entitled to recover on their counterclaim.

On the other hand, while the act authorizes the President to appoint the claimant, “late a commander in the United States Navy, to the same grade and rank * * * as of the date of August 1,1883, and to place him on the retired list of the Navy as of the date of June 1,1895,” the proviso thereto is “ that he shall receive no pay or emoluments except from the date of such reappointment.”

The claimant’s appointment to the same grade and rank as of the date of August 1,1883, was manifestly intended only to fix the claimant’s status in respect of the grade and rank to which he claims he was entitled when his name was left off the register by direction of the Secretary of the Navy and Mullan was appointed in his stead, under the decision in the case of Blake v. The United States (103 U. S. R., 227), but not having rendered any service to the United States during that period and another having been paid the salary therefor, Congress added the proviso, thereby in effect saying that although you were out of the service by reason of the action of the appointing power, still, inasmuch as the Department recognized you as in the service until August 1,1883, we will sanction the action of the Department by giving you the same grade and rank as of that date, but, having rendered no service to the United States since that date, we will not pay you anything prior to the date of your reappointment, hence the proviso that he shall receive no pay or emoluments except from the date.of such reappointment.”

And herein lies the difference between this case and the Collins Case (15 C. Cls. R., 22), McAlpine Case (27 C. Cls. R,.,.491), and other like cases cited and relied upon by the claimant.'

Tbe claimant, however, contends, and the able brief and argument of his counsel apparently justify the coutention, that the use of the word “reappointment” in the proviso refers back and relates to August 1,1883, as the date from which the claimant’s pay should begin; but if that be the correct construction, then the proviso is a nullity, as it is clear that without the proviso the claimant could not, under the authority of the adjudicated cases cited by the claimant, recover for salary prior to August 1,1883. So that the proviso must be given some effect different from that which would exist without it.

The office and purpose of the proviso evidently was to limit the claimant’s right in respect of pay, thereby excepting from the operation of the statute that which would otherwise have been included in it. This is familiar law.

Hence, adhering to the well-established rule of interpretation that statutes should be construed as a whole and effect given, if that can be done, to every word or part thereof, we must hold that the act under which the claimant seeks to recover limits him in respect of his right to pay to the date of his appointment, which was May .26, 1897, though for the purpose of fixing his status as to “ grade and rank as commander,” he was appointed “as of the date of August 1, 1883.”

The act recites that the claimant was “late a commander in the United States Navy,” and that the President was thereby authorized to appoint him “to the same grade and rank of commander in the United States Navy,” so that although the word appoint is used it was in fact a reappointment óf the claimant to his former grade and rank as commander; and if Congress had intended that the claimant should be paid as such from August 1,1883, they would have said so in more apt and definite language, and not having done so, we must give to the proviso, in its relation to the other parts of the act, the meaning which its office inrplies, i. e., a limitation upon the claimant’s right, under the act different from that which would exist without it.

What we have said in respect to the claimant’s right to pay applies, of course, to the period between the dates of his retirement and appointment, though it is clear that placing the claimant on the retired list was not an act of appointment or of reappointment, but was consequent upon bis having reached the legal age for retirement.

For the reasons stated the petition and the counterclaim are both dismissed.

DAVIS, J., was not present when this case was tried and took no part in the decision.  