
    LUCIEN YOUNG v. THE UNITED STATES.
    [No. 14008.
    Decided February 14, 1884.]
    
      On the Facts.
    
    An ensign is nominated, (February 30, 1879), and commissioned, (March. 3, 1879), “ to be a master in the Navy from the Mth November, 1877.” The promotion is an advancement of “ thirty numbers in rank for extraordinary heroism,” and the 34th November, 1877, is the time of the last of the acts for which he is advanced.
    I.Longevity pay is to be computed, except where the statute otherwise provides, from the day the officer’s commission was signed by the President, and not from an antecedent date mentioned in the body of the commission.
    II.A naval officer’s right to longevity pay depends upon the words “date of commission” in Revised Statutes, §1556; and the legal construction to be given to those words is the date when the instrument was executed.
    III. Longevity pay is founded upon the equivalent of increased judgment and capacity acquired by the experience of continued service.
    IV. The Revised Statutes (§§ 1561, 1563) provide for certain cases where the pay of an officer shall run from a date anterior to that of his commission; but advancement in rank “for eminent or conspicuous conduct in battle or extraordinary heroism ” under section 1506 is not one of them.
    V.The President for other purposes may insert an antecedent date in the body of a commission; but antecedent date can affect an officer’s pay only in the cases authorized by statute.
    
      
      The Reporters’ statement of the case :
    This case the claimant brought by the voluntary filing of his petition. The following are the facts as found by the court:
    I. The claimant has been an officer of the United States Navy since the date he was commissioned as master. His present rank is that of lieutenant, junior grade.
    II. February 20, 1879, the following letter of nomination was sent to the Senate by the President:
    “ To the Senate of the United States:
    
    “ Whereas section 1506 of the Revised Statutes provides that any officer of the Navy, by and with the advice and consent of the Senate, may be advanced not exceeding thirty numbers in rank for extraordinary heroism; and whereas Ensign Lucien Young has displayed extraordinary heroism on two separate occasions — the first, 10th November, 1873, he being then a midshipman — saving the life, at the risk of his own, of a comrade who had fallen overboard a.t sea, from the United States steamer Alaska, for which signal act of heroism he was complimented in General Orders; the second, at the time of the loss of the United States steamer Huron, 24th November, 1877:
    “Ido hereby nominate Lucien Young, a resident of Kentucky, now an ensign in the Navy, to be a master in the Navy from the 24th November, 1877.
    “ Washington City, 20th February, 1879.”
    III. And the following commission was issued:
    
      “R. B. Hayes, President of the United States of America, to all who shall see these presents, greeting:
    
    “ Know ye that, reposing special trust and confidence in the patriotism, valor, fidelity, and abilities of Lucien Young, I have nominated, and, by and with the advice and consentof the Senate, do appointhim a master in theNavyfrom the21thNovember, 1877, in the service of the United States. He is therefore carefully and diligently to discharge the duties of a master, by doing and performing- all manner of things thereunto belonging. And I do strictly charge and require all officers, seamen, and marines, under his command, to be obedient to his orders as a master. And he is to observe and follow such orders and directions, from time to time, as he shall receive from me, or the future President of the United States of America, or his superior officers'set over him, according to the rules and disciplineof the Navy. “This commission to continue in force during the pleasure of the President of the United States for the time being.
    “ G-iven under my hand, at Washington, this third day,of March,- in the year of our Lord one thousand eight hundred and seventy-nine, and in the 103d year of the Independence of the United States.
    [seal.] “B. B. Hayes.
    “ By command of the President of the United States of America :
    u B. W. Thompson,
    “ Secretary of the Navy.
    
    “ Begistered:
    “ Wi. P. Moran.”
    . IY. Since March 3, 1879, claimant has served continuously in the Navy.
    Y. He was paid as follows:
    “As master from November 24, 1882, to December 6,1882, at eighteen hundred dollars ($1,800.00); from December 7, to December 10, 1881, at fifteen hundred dollars ($1,500.00); from December 11,1882, to June 4, 1883, at eighteen hundred dollars ($1,800.00); and from June 5 t.o June 30, 1883, at fifteen hundred dellars ($1,500.00) per annum.”
    YI. May 19, 1883, the following commission was issued:
    “ Chester A. Arthur, President of the United States of America, to all who shall see these presents, greeting:
    
    “ Know ye, that reposing special trust and confidence in the patriotism, valor, fidelity, and abilities of Lucien Young, I do appoint him a lieutenant in the Navy (junior grade) from the 3d day of March, 1883, in the service of the United States. He is, therefore, carefully and dilligently to discharge the duties of a lieutenant by doing and performing all manner of things thereunto belonging. And I do strictly charge and require all officers, seamen, and marines, under his command,, to be obedient to his orders as a lieutenant. And he is to observe and follow such orders and directions, from time to time, as he shall receive from me, or the future President of the United States of America, or his superior officer set over him, according to the rules and discipline of the Navy. This commission to continue in force during the pleasure of the President of the United States for the time being.
    “ G-iven under my hand, at Washington, this nineteenth day of May, in the year of our Lord one thousand eight hundred and eighty-three, and in the 107th year of the Independence of the United States.
    “ [l. s.] Chester' A. Arthur.
    “ By command of the President of the United States of America:
    “ Wm. E. Chandler,
    “ Secretary of the Navy.
    
    “(Written on the margin:) Title changed from master to lieutenant (junior grade), in accordance with the act of Congress, 3d March, 1883. Date of master’s commission, 24th November, 1877.”
    
      Mr. E. B. Lines for the claimant:
    Under the provisions of section 1467, Revised Statutes, viz, “ line officers shall take rank in each grade according to the' dates of their commissions,” it became necessary for the Navy Department to fix a date in claimant’s new commission, showing the rank to which he had been advanced1. This date was accordingly fixed as November 24, 1877, and the commission expressing it was signed by the President March 3, 1879. After November 24, 1882, the claimant applied for an increase of $200 in his annual pay. This' increase was refused by the accounting officers, who held that the date of commission from which the pay period was to be computed was the date of its signature, viz, March 3,1879.
    We have, then, the following anomalous state of facts, as shown by the Naval Register of January, 1883: That the claimant, standing No. 22 on the list of masters, with his commission dated November 24, 1877, outranked eighteen masters, whom he would command upon occasion, but whose commissions are now (January, 1884) more than five years old, and who are, therefore, drawing $200 a year more pay than claimant.
    And the following anomalous state of the law, viz: That rank under section 1467, Revised Statutes, and pay under section 1556, both depend on the same thing, i. e., “ date of commission but that that date is one thing in the Navy Department and another thing in the Treasury Department. Now, either the Navy or Treasury must be wrong; which it it ? If the decision of the Navy Department could be questioned here the court would say that that department was obliged to fix the date in the body of the commission, since without it, under section 1467, the claimant conld not take the rank to which he had been advanced and confirmed, and was therefore entitled under sections 1506 and 1507. But could anybody say that the date of signature was a necessary date ?
    Section 1773, Revised Statutes, authorizes the President to make out and deliver commissions for all officers whose appointments have been advised and consented to by the Senate. But there is no law that requires him- to append the date of his signature to any commission. Suppose that in this case he had not done so, would the commission have been any less valid ? and would not the Treasury Department have been obliged to adopt the date stated in the commission itself as the date for which pay was to be computed'?
    
      Mr. George L. Douglass (with whom was the Assistant Attorney-General) for the defendants:
    The claimant’s contention is apparently based upon the theory that the insertion of a date in the body of the commission, for one purpose had a retroactive operation for all other purposes, and, by a sort of miracle, made him a veritable master in the Navy between November 27, 1877, and'March 3, 1879. If that were true, then it would logically involve a claim for master’s pay during the same period; instead, therefore, of giving the claimant merely the additional rank provided by section 1506, the President and Senate would have made him an actual gift in cash, and in some of the higher grades a similar advance in numbers would carry with it unearned back pay to the. amount of thousands of dollars.
    That the law never contemplated suchpeeuniary consequences of a promotion under section 1506 seems very clear, and the fallacy of claimant’s argument arises from his confusing certain statutes which apply solely to “rankand precedence” with other statutes which relate solely to “ compensation.” Keeping these two objects in mind, and the law is sufficiently clear not to be misconstrued.
    The practical question in this case, viz, What is the “ date of commission ” for the purpose of computing compensation, has been once fully considered by this court, and decided adversely to the contention of the present claimant. Kilburn Gase, 15 C. Cls. R., 47.
   Weldon, J.,

delivered the opinion of the court:

On March 3, 1879, the President commissioned the claimant a master in the Navy, reciting in the commission—

“I do appoint him a master in the Navy from the 24th of November, 1877, in the service of the United States.”

It is insisted by the claimant that.for the purpose of pay the commission in legal effect bears dale on the 24th of November, 1877, and not on the 3d day of March, 1879, when it purports to be signed by the President.

It is alleged in the petition of the claimant—

“That from and after November 24, 1882, he was entitled to be paid as after five years from the date of his commission as master; but that such pay has been wholly denied him, and that since said date he lias only been paid at the rate of a master in his first five years from the date of commission.”

The issue made by the petition and answer is to be settled by a construction of the following sections of the Revised Statutes :

“Sec. 1556. The commissioned officers * * * on the active list of the Navy * * * shall be entitled to receive annual pay at the rates herein stated after their respective designations.
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“ Masters during the first five years alter date of commission, when at sea, one thousand eight hundred dollars; on shore duty, one thousand five hundred dollars ; on leave or waiting orders, one thousand two hundred dollars; after five years from such date, when at sea, two thousand dollars; on shore duty, one thousand seven hundred dollars; on leave or waiting orders, one thousand four hundred dollars. * * * ”

Section 1506 of the Revised Statutes provides:

“Any officer of the Navy may, by and with the advice and consent of the Senate, be advanced, not exceeding thirty numbers in rank, for eminent and conspicuous conduct in battle or extraordinary heroism.”

The question presented for determination is whether the longevity pay provided by section 1556 is to be computed from the day the commission was signed by the President, to wit, on the 3d day of March, 1879, or from the date mentioned in the body of the instrument, to wit, November 24, 1877.

By the terms of the statute masters are to receive during the first five years after the date of the commission a certain compensation, and after five years from such date an increased compensation.

The increased compensation, by the terms of the law, is connected with a five years’ limitation, and whether the five years is dependent upon the day the commission bears date or the day mentioned in the body of the instrument as measuring the pay of the soldier is to be ascertained by the legal construction to be given the words “the date of commission,” as used in section 1556, and the authority of the President at the time it was issued.

By law persons competent to contract with reference to a given subject-matter may give their contract a retroactive operation, and have its legal effect antecedent to the time when the contract was actually made; and so the President, for some purpose, may give to an instrument which he issues an effect in law prior to the date of its execution.

In the passage of the law in controversy Congress provided an additional compensation to the soldier after a certain time. That additional compensation is founded upon some equivalent on the part of the soldier; that equivalent is the judgment and capacity which he acquires by the experience of the continued service of five years. It is not a mere gratuity dependent upon individual acts of heroism, but upon service of time.

Under section 1506 an officer in the Navy may be advanced in rank “ for eminent and conspicuous conduct in battle, or extraordinary heroism,” but he can be paid only on his service of time.

The terms of section 1561 will assist in the proper construction of 1556. It provides:

“When an officer is promoted in course to fill a vacancy, and is in the performance of the duty of the higher grade from the date he is to take rank, he may be allowed the increased pay from such date.”

This section, standing in close relation to 1556, provides in terms when and under what, circumstances pay and rank may be commensurate; and, having expressed the conditions on which pay is to be retroactive, it must, in judicial construction, necessarily exclude all other conditions.

Sections 1561 and 1562 provide for certain cases wherein the pay of officers shall commence from a date anterior to that of the commission, but the claimant’s case is not one of them. The specification in those cases implies the exclusion of all others. From the practice of the Executive of inserting an antedate in the numerous cases arising under those sections, for convenience to indicate when the officer’s pay is to commence or to be increased by law, it is easy to see how it might be sometimes inserted for convenience for other purposes, or even inadvertently in some case where it could have no practical application, as in the Bur chard case just read.

In the present case the purpose is clear. The claimant was advanced above thirty officers, who were his immediate seniors. As the officers of the Navy, both of the line and staff, take rank and are promoted by seniority it was convenient to insert in such an exceptional case as this one a date between that of the commission of the highest of the thirty officers whom he was to outrank and that of the lowest next above him, in order to indicate his position and rank with reference to the other officer of his grade. This fact might have been otherwise expressed, to wit, by inserting the name of the two officers between whom he was to take his new rank.

The law says “five years after date of commission.” The true date of an instrument is the day of its execution; it may operate either by the consent of the parties or by legal intendment from a period antecedent; but if time is to be calculated from its date it must be computed from the time of the execution.

Construing the legal effect of the claimant’s commission according to this rule we must hold that under section 1556, for the purpose of pay, it operates from the 3d of March, 1879.

It is unnecessary to elaborate further in renewed construction of the statutes, as this court has had occasion to apply the law in cases analogous to the one under consideration. In the case of Thornly v. The United States (18 C. Cls. R., 117) this court, in the language of the Chief Justice, said :

“ There was, no doubt, an underlying principle and purpose in the introduction of longevity pay into the Navy. We think it was intended, first, to induce men to enter the Navy and remain in it for life; second, to remove the depressing influence of long periods of service in one grade without increase of pay; third, to compensate for increased professional knowledge and efficiency in officers, by increasing their pay in advance of promotion. If these views are correct, the whole basis of longevity pay is the officer’s capacity for duty, and his performance of it. In other words, longevity pay is for longevity in actual service.”

And in the case of Brown v. The United States (18 id., 545), this court, by Judge Scofield, said:

• “ Longevity pay is supposed to be based upon the theory that an officer’s usefulness, increased by length of service, should be rewarded by increased remuneration. Experience is undoubtedly the better part of education. In all professional and business affairs it commands the highest price. In fixing the pay of the Navy officers on the active list, Congress had recognized this fact and graded the pay by length of service.”

In the case of Kilburn (15 id. 47), Judge Hunt said:

“Much .stress is laid by the claimant on the circumstance that under his commission he appears to have been appointed an ensign from the 13th day of July, 1871. But the right of the claimant springs from the language of the statute, and not of the commission. The commission is to be interpreted by the law that authorized the appointment. It is merely evidence of the appointment. If the commission transcends the limits of the appointment, by substituting an erroneous date for that fixed by the statute, the commission becomes to that extent inoperative and void. The error cannot prevail, but must give way to the true date. The acts of appointing to office and commissioning the person appointed are two separate and distinct acts, arising out of two separate and distinct sections of the Constitution. (Marbury v. Madison, 1 Cranch, 157.) The argument of the claimant confounds these two independent and distinct acts, and, in our judgment, ought not to prevail.”

In the Collins Case (18 id., 34), Judge Richardson, in giving the opinion of the court, said:

“ It is clear that the Executive — the President alone, or the President with the advice and consent of the Senate — by antedating the commission or appointment of a public officer, without legislative authority, cannot create a liability on the part of the United States to pay him a salary for the time he was not in the service; but Congress, the legislative branch of the government, may, by law, create such liability, and may allow back pay to any public officer in consideration of past services or for any other cause which they deem sufficient.”

If the 24th of November was inserted in the body of the commission for the purpose of pay, such an exercise of power on the part of the President might involve the use of authority without sanction of law, and the commission could only operate from the date of its execution.

It is therefore ordered and adjudged that the claimant’s petition be dismissed.  