
    KIL BURN’S CASE.
    William Kilburn v. The United States.
    
      On the Rroofs.
    
    
      A mid-.liij/man sends a communication* lo the Secretary of the ¿¡ary asking four months' leave of absence, as he wishes “to tender his resignation at the expiration of tliat tóme.” The Secretary treats the paper as a resignation. In this interpretation the midshipman concurs. Subsequently Coiujresspass on act authorizing the President to restore him “as an ensign at tlio foot of flic class of which he was a member.” Under this act he brings suit to recover his pay as ensign for the period, during which he was out of the service.
    
    I.An act of Congress which authorizes the President “to restore W. AT. to the Xavy as an ensign at the foot of the class of which he was a member at the time of his resignation” does not import that he should receive the pay of an ensign for the period when he was neither actually nor constructively in the Navy.
    II.In all cases where bach-pay has been allowed to reinstated officers by Congress, they had been illegally or unjustly or inadvertently dismissed tlio service.
    III.The right of a reinstated officer to pay for the period during which ho was out of the service must depend upon the will of Congress as expressed in the act authorizing his reinstatement, and not upon tlio' dale of his commission.
    
      The Reporters' statement of tlio case:
    The following are the facts of this case as found by tlio court:
    1. The claimant, on the 10th of July, 1871, being then a midshipman in the United States Navy, addressed to the Secretary of the Navy the following letter:
    “Annapolis, Md., July 10,1871.
    “Silt: I respectfully request to be detached from duty on board the United States ship Supply, and to bo granted a leave of absence of four months, as I wish to tender my resignation as a midshipman in the United States Navy at the exinration of that time.
    “1 am, sir, verv respectfully, your obedient servant,
    ' “W. KILBURN,
    “Midshipman, United States Navy.
    
    
      u To the Hon. Geo. M. Robeson,
    
      11 Secretary of the Navy, Washington, I). 0."
    
    
      To this letter the claimant received the following reply :
    “Navy Department,
    “ Washington, July 18, 3871.
    “Snt: As requested in your letter of the 10th instant, you are hereby detached from the Supply, and your resignation as a midshipman in the Navy of the United States is accepted, to take effect four months from this date.
    “Kespectfully,
    (Signed) “CEO. M. EOBESON,
    “ Secretary of the Navy.
    
    “Midshipman W. Kilbttr.v,
    “ United States Navy, Neto YorTtT
    
    II. An act of Congress to restore the claimant to the Navy of the United States was passed by Congress and approved March 2, 1874, and is annexed to and forms part of the.claimant’s jietition. Under that act, on the 18th March, 1874, the President nominated the claimant to the Senate “to be air ensign in the Navy at the foot of the class of 1870,” and the nomination Avas acted on and confirmed by the Senate in the same Avords, on. the 8th April, 1874.'
    III. On the 18th March, 3874, the President sent the following nomination to the Sell ate:
    “ To the Senate of the United States :
    
    
      “ In conformity to the act of Congress approAmd 3d March, 1874,1 nominate William Kilburn to be an ensign in the Navy at the foot of the class of 1870” ;
    Avhich, on the 8th April, 1874, Avas acted upon by the Senate in executive session, as follows:
    
      “Resolved, That the Senate advise and consent to the ap-pointmeut of the folloAving-named persons, agreeably to their nominations respectively, aíz :
    “William Kilburn, to be an ensign in the Navy at the foot of the class of 1870.”
    IV. On the 25th April, the following commission Avas for-Avarded to the claimant :
    
      “U. S. Grant, President of the United States of America, to all Avho shall see these presents, greeting:
    “Kuoav ye that) reposing special trust and confidence in the patriotism, valor, fidelity, and abilities of William Kilburn, I have nominated, and, by and Avith the advice and consent of the Heuate, do appoint him an ensign in the Navy, from the 13tb day of July, 1871, in tbe service of tbe United States. He is, therefore, carefully and diligently to discharge tbe duties of an ensign, 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 an ensign. And he is to observe and follow such orders and directions, from time to time, as he shall receive from me, or tbe 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.
    “ Given under my hand, at Washington, this eighth dajT of April, in the year of our Lord one thousand eight hundred seventy-four, and in the ninety-eighth year of the Independence of the United States.
    [l. g.] “U. S. GRANT.
    “By command of the President of the United States of America:
    “Geo. M. Robeson,
    “ Secretary of the IFunj.
    
    “'Registered.
    “WM. P.. MORAN.”
    The claimant, on the 22d April, 1874, accepted this commission, and was thereupon placed on the list of ensigns at tHe foot of the class of 1870. He has ever since retained that relative rank, and was commissioned a master in the Navy on the 18th December, 1874, having been nominated and appointed master in accordance with said rank.
    Y. For his services as midshipman after the 13 th July, 1871, he was paid the sum of $131.91, and he has been paid as ensign from the 8th April, 1874.
    d/r. A. 31. 2IeBlair for the claimant:
    The act of Congress restoring claimant, was unaccompanied by any qualification as to pay. It restored him absolutely, and gave him his rank without any stipulation as to pay being withheld, the only proviso being that he is to go to the foot of his class. In every respect, including that of pay, he is to bo treated ás a member of said class, and stands on the same footing as the other members, and by the said act was fully restored to all their rights and privileges. (Reynolds’ Case, 3 O. Cls. -E., 198 j 3[oore?s Vase, 4 O. Ols. R., 139).
    
      Statutes slioultlbe interpreted according to their most obvious meaning’, and without resorting' to a forced or subtle construction for the purpose of limiting or extending their operation. (Potter’s Dwarris on Statutes, p. 143 et al., ed. 1871.)
    The commission as ensign of the claimant carries pay from the date thereof by the rule 20, chap. 15, of the regulations for the government of the Navy, as well as by all the precedents laid down in similar cases. It is the evidence of his title and carries all the rights and privileges of the office conferred by its terms from its date. A commission bears date and the salary of the officer commences from his appointment, not from the transmission or acceptance of his commission. (Marbury v. Madison, 1 Cranch, p. 161; Parle Benjamin's Case, 10 0. Cls. 11., 474; Winters Case, 3 C. Ols. R., 136.)
    The commission itself would differ from every commission held by any officer of the Navy did it not draw pay from its date.
    
      2br. John 8. Blair (with whom was jl/r. Assistant Attorney-General Simons) for the defendants:
    In his opinion of May 17, 1826 (vol. 2., p. 27), Attorney-'G-enoral Wirt said: u Pay is the reward of service in the grade; it therefore follows the date of the service, not the date of the retrospective rank.”
    This statement of a general principle received the approval successively of Mr. Legare (4 Opin., 124), Mr. Clifford (4 Opin., 603), and Mr. Cushing (6 Opin., 68); and, unless there is something-in the general law or in the act restoring the plaintiff to make him an exception, it should control this case.
    Rule 20, chap. 15, of the regulations for the government of the Navy, set out in the evidence, refers entirety to the promotion of officers already in the service. And I conceive that under the general law an officer of the Navy who resigns, and after an interval is, with the advice and consent of the Senate (or without such consent if Congress vests the appointment in the President alone), appointed to an office in the Navy, would under section 1560 be entitled to pay only from his acceptance-■of the commission.
    Kilburn from the 18th November, 1871, to the 22d April, 1874, to use the language of Mr. Clifford, “ was a private citizen, without a commission or any legal authority to eater the service, and not subject to orders, and indeed was disqualified to obey them if any had been given.”
    Payment for this period, therefore, is so much of a gratuity as to throw upon plaintiff the burden of showing that Congress by the act of March 2,1871, intended to. bestow upon him a bounty; and this gratuity should not be by construction or inference — it should be by clear language devoid of all ambiguity.
    In the light of the general law, making service in grade the test of pay, and applying to the act of March 2, 1874, the general principles laid down by Attorneys-G-eneral Wirt, Legare, Clifford, and Gushing, it is beyond djaubt that Congress did not intend to present Mr Kilburn with the sum of $2,054.75.
   Hunt, J.,

delivered the opinion of the court:

The claimant was a midshipman in the United States Navy on the 10th of July, 1871, and was on duty on the United States ship Supply. On that date he made application to the Secretary of the Navy to he granted a leave of absence of four mouths, “as he wished to tender his resignation as a midshipman in the United States Navy at the expiration of that time.”

In accordance with this application the claimant was detached from the Supply, leave of absence for the period asked was accorded him, and his resignation as a midshipman vms accepted, to take effect at the expiration of his four months* leave.

Whether the claimant’s letter was intended as an unequivocal and immediate resignation, or was merely the announcement of a desire or purpose to resign at a future day, it is unimportant to stop to consider.

It was interpreted by the Secretary of the Navy as an absolute resignation. In this interpretation the claimant concurred. He enjoyed his furlough, took his pay, and made no remonstrance or complaint against being dropped from the service.

On the 2d March, 1874, the following act of Congress was approved:

“AN ACT to restore William Killmrn. of San Francisco, California, to tlie Navy of the United States as an ensign.
Be it enacted, <£r., That the President of the United States he, and he is hereby, authorized to restore William Kilburn to the Navy of tlie United States as an ensign, at tlie foot of the class of eighteen hundred and seventy, of which he was a member at the time of his resignation.”

Under this act the claimant brings this suit, and asks judgment for the pay which he alleges is due him under his commission as ensign in the naval service on leave from July 13,1871, to April 8f 1874,” amounting to $2,188.83.

It is to be observed that during this interval the claimant was neither actually nor constructively in the naval service. He was neither on duty nor on leave. He had resigned his commission, and could have no claim to pay unless such claim was conferred by some law of Congress.

We do not consider that the statute on which he relies was intended to confer or did really confer any such right. The language of the act authorized the President to restore the claimant to the Navy as an ensign at the foot of the class of 1S70, of which he was a member at the time of his resignation. If it had been intended to bestow upon him the pay of an ensign from that time, it would have been easy to say so in express terms. Such an intention cannot be fairly inferred from the language employed. That language is, “ to restore him to the Navy ” in a higher rank than that which he held at the time of his resignation — to bring him back as an ensign when he had left as a midshipman.

Nor is his claim in any degree strengthened by the clause in the act which locates him “ at the foot of the class of 1870, of which he was a member at the time of his resignation.” The plain purport of the clause was merely to assign him a definite rank on being restored to the service. It is by no means certain that the rank thus assigned him was the same or equivalent to that which he would have reached had he remained in the service. He might have failed to obtain his promotion from midshipman to ensign when his classmates obtained theirs. He might, on the other hand, have passed at the head instead of the foot of his class, and so have been entitled to a higher rank than that which the statute assigned hirii. Hence, it became eminently proper to determine his precise position in his new grade, and this was distinctly done by placing him at the foot of his former class.

In all the cases referred to, the parties to whom back pay has been allowed have been considered by Congress to have been illegally or unjustly or inadvertently-dismissed tire sendee. In order to reinedy the wrong- or repair tbe injustice of sucli dismissal, it lias been considered both, just and humane that its revocation should be complete, and should relate back to the day of the order of dismissal, so as to make the party entitled to full pay, as though no such order had ever been made. (Winters v. The United States, 3 C. Cls. R.; Smith v. United States, 3 C. Cls. R., 140.) But such arrearages of pay have in. every instance been allowed only under acts of Congress authorizing the beneficiaries under them to assume a definite rank from a past date. This doctrine is fully expounded in the case of Major Collins (ante, p. 22).

In this instance,however, the claimant is assigned a rank for the future only, and not for the past; and there is nothing in the statute which manifests a purpose to allow him pay for the period during which, by his voluntary resignation, he had severed his connection with the service.

The counsel for the claimant has argued with ingenuity, that there are two classes of private acts of this nature; that in one class, pay, when a party was out of the service, is prohibited in 'express terms; while in the other class no such prohibition is expressed, and from the silence of the statute the right to pay is to be implied. We do not find that it has been usual to express such a prohibition except iii those cases where officers are authorized to bo restored as of a previous specified date. This might entitle them to pay from such time if the contrary were not expressly declared.

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 apimintment. 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.

It is therefore ordered, adjudged, and decreed that the petition be dismissed.  