
    WILLIAM H. FRARY v. THE UNITED STATES.
    [No. 16252.
    Decided January 21, 1889.]
    
      On the Proofs.
    
    The only question in the case is whether a boatswain in the Navy attached to a receiving ship at anchor, is entitled to a ration.
    I. A boatswain in the Navy attached to a receiving ship at anchor is not entitled to a ration under the Revised Statutes, §5 1578, 1579.
    II. A receiving ship at anchor is not “a sea-going vessel’’ within the meaning of the Revised Statutes, §§ 1578, 1579.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    The claimant was a boatswain in the Navy, and as such was attached to and served on the United States receiving ship Franklin, lying at anchor in the navigable waters off Norfolk, Va., from September-16 to Novenber 15,1886. He was not allowed rations during that period nor has he been paid, commutation therefor, but the same has been refused him.
    
      Mr. R. B. Bines for the claimant:
    In Strong v. The United States (22 O. Cls. E., 491), affirmed by the Supreme Court, it was held (following the cases of Symonds and Bishop, 21 C. Cls. E., 148, 215, and 120 U. S., 46, 51) that the words “ when at sea,” as used in section 1556, Eevised Statutes, prescribing the pay of officers, and “ at sea” in section 1571, defining “ sea service,” applied to officers on duty on a receiving ship situated similarly to the vessel in the present case. In accordance with that decision sea pay has been allowed by the Treasury officials to officers of receiving vessels under sections 1556 and 1571, as well as under’the original acts from which those sections are taken. Commutation of rations has, also, since the decision in Strong’s case, been allowed to officers of receiving vessels under the following provisions of law, viz : Aet of March 3, 1851 (9 Stats., 321, § 1); and Act of July 16, 1862 (12 Stats., 587, § 19):
    “All officers while at sea, or attached to a sea-going vessel, shall be allowed a ration.” ■
    The Act of 1862, it is to be noticed, covered the whole ground of the Act of 1851 (receiving ships being “ at sea ”), except the provision relating to “ the ordinary of navy-yards.” It should, therefore, have been incorporated into the Eevised Statutes with that provision only added. On turning again to the Ee-vised Statutes, however, we find that while the Act of 1862 has been substantially embodied in section 1578, above quoted, the Act of 1851 is also embodied in the following distorted shape:
    “ Sec. 1579. No person not actually attached to and doing duty on board a sea-going vessel, except the petty officers, seamen, and ordinary seamen attached to receiving ships or to the ordinary of a navy-yard and midshipmen, shall be allowed a ration.”
    On account of this re-enactment and transposition of the Act of 1851, the accounting officers have suspended the allowance of rations to officers above the grade of petty officers for receiving ship duty since the date of the revision, until the conflict between sections 1578 and 1579 has been judicially settled.
    That such conflict exists is apparent, for the controlling words of sectiouT578, “ while atsea,” have, as construed by the courts, plainly allowed rations to officers of receiving ships, while the words of section 1579 seem to except such officers. The rule, therefore, applies, which was adverted to in Bowen v. The United States (100 U. S., 508), Hammoelc v. United States Land and Trust Go. (105 U. S., 85), and Wright v. United States (15 C. Cls. E., 87), viz: That when there is ambiguity in a code, a conflict between two sections, the original statutes must be referred to to determine it.
    In Conger v. Barlcer (10 Ohio St., 13) it was held that a codifying statute should only be construed to change existing law where the intent of the legislature to make such change is clear, or where the language of the new act plainly requires such construction. In this case the ambiguity is clearly the work of the revisers. On every principle section 1578 should be held to prevail, since it is the embodiment of the later and unrepéaled statute, while section 1579 purports to embody, though it does not correctly, the older and partially repealed statute.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney- General Soward) for the defendants:
    Where the construction of statutes is ambiguous (and it is admitted that it is so, at the present time, in this case) it is held in numerous decisions of this court and the Supreme Court that the uniform construction given thereto by the officers of the G-overnment is entitled to great consideration. It is admitted by claimant that the uniform construction of the accounting officers of the Treasury has been adverse to his claim.
    Service on board training and receiving ships is sea service. (Symond's Case; Bishops Case, 21 C. Gis. R., 148, 215; Strong's Case, 22 C. Cls. R., 491.) It is from these decisions that the ambiguity in the construction of said sections 1578 and 1579 arises. At the time of the enactment of the Revised Statutes both Congress and the Navy Department regarded service while at sea ” to be service on board a sea-going vessel under commission for sea service. It was the manifest intent of Congress, as expressed in section 1579, that the allowance of rations should only be made to officers on “ sea-going vessels.”
    The intent of the law-maker must control the construction of an ambiguous statute. There can be no reasonable doubt that “ while at sea,” in the act of 1862 and section 1578, Revised Statutes, was intended by Congress to mean while at sea on a sea-going vessel.
    It is admitted by claimant in this case that the Franklin was not a sea-going vessel, although under the decision in the Symonds and other cases, supra, she was in sea service.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant, who is a boatswain, a warrant officer, in the Navy, claims rations or commutation therefor while attached to and serving on a receiving ship.

His claim is founded upon the following sections of the Revised Statutes:

“ Sec. 1578. All officers shall be entitled to one ration, or to commutation therefor, while at sea or attached to a sea-going vessel.
11 Sec. 1579. No person not actually attached to and doing duty on board a sea-going vessel, except the petty officers, seamen, and ordinary seamen attached to receiving ships or to the ordinary of a navy-yard, and midshipmen, shall be allowed a ration.” ■

The claimant contends that whatever interpretation might be given to section 1579 if it stood alone, when taken in connection with section 1578, the two together correctly construed entitle him to rations, because while on board of the Franklin, a receiving ship, he was performing service “ at sea ” within the meaning of those words as defined by the decisions in Symonds’s Case (21C. Cls. R., 148), affirmed on appeal (120 U. S. R., 46); Strong’s Case (23 C. Cls. R., 11), affirmed on appeal (125 U. S. R., 656).

We can not accept the claimant’s interpretation. Section 1579 is a limitation upon section 1578. The one gives and the other takes away, and that alone which remains stands as the law.

To entitle officers and other persons, with some exceptions, to rations, they must be either at sea, or actually attached to and doing duty on “a sea-going vessel,” whether such vessel be at sea or not. That Congress intended to exclude receiving ships from those designated as sea-going vessels is conclusively shown by the exception in section 1579, which, after prohibiting the allowance of rations to persons not on a sea-going vessel, excepts petty officers, seamen, and ordinary seamen attached to receiving ships.

An exception is part of what is previously described, and not of something else.

The decisions in the Symonds and Strong cases have no application to the present claim. The only question there was whether or not the officers were performing service at sea” within the meaning of Revised Statutes, section 1556, which fixes the pay proper, or salary, of officers at different rates when employed on shore or at sea, without reference to the character of the vessel- on which they are employed. Those cases were not complicated by the provisions of sections 1578 and 1579, respecting rations, and did not involve the construction of those sections as to whether or not a receiving ship was a sea-going vessel.

The judgment of the court is that the claimant has no cause of action, and his petition must be dismissed.

■ Nott, J., did not sit in this case and took no part in the decision.  