#### BARTLETT J. CROMWELL v. THE UNITED STATES.

[No. 27487.

Decided May 13, 1907.]

*On the*Proofs,

In Admiral Terry’s case this court decided that though the general object of the Navy personnel act was to equalize army and navy pay the act did not operate to reduce the pay of officers in service when it was enacted. The Government did not appeal, and the decision was adopted by the accounting-officers as their rule of decision and still is. But in this case the claimant’s account was settled before the decision in Terry at the reduced rate prescribed by the statute for such officers, to wit, at the rate of $5,500 a year intsead of $6,000. The only question in the ease is whether the rule in Terry shall be adhered to.

I.In *Terry’s Case*(39 C. Cls. R., 353) this court held that the pay .of officers in service at the time of the passage of the *Navy personnel ael, 8d*March, *1890*( 30 Stat. L., p. 1005), and the amendatory *Act fill June, 1900*(31 id., p. 697), might be increased by the terms of those statutes, but were not to be. diminished. The court now adheres to that decision.

II.Repeals by implication are never favored. To effect a repeal the earlier and the later statute must be absolutely incompatible. If both can exist, there can not be a repeal by implication.

III. The Navy personnel act as amended by the act 7th June, 1900, is not incompatible with the Revised Statutes, section 1556, fixing the pay of a rear-admiral. The earlier statute continues operative as regards the excepted class of officers in service when the Navy personnel act was enacted.

IV. The anomalies in the Navy personnel act as amended by subsequent statutes reviewed.

*433
      *The Re-porters'*statement of the case:

The' following are the facts of the case as found by the court:

I. The claimant, Bartlett J. Cromwell, entered the Navy on the 21st day of September, 1857, and became by successive promotions a commodore in the Navy.

. On the 3d of March, 1899, he was promoted to and commissioned a rear-admiral, and was embraced in the nine lower numbers of that grade until after the 30th day of June, 1899. During the time from March 3, 1899, to April 29, 1899, the claimant was on duty at sea.

II. During the time from March 3, 1899, to April 29, 1899, he was paid at the rate of pay of a brigadier-general in the Army, five thousand five hundred dollars ($5,500) a year. If he is entitled to be paid at the rate fixed by section 1556 of the Revised Statutes for a rear-admiral on sea duty, six thousand dollars ($6,000) a year, he will be entitled to the difference between five thousand five hundred dollars ($5,500) a year and six thousand dollars ($6,000) a year, five hundred dollars ($500) a year, amounting for the period from March 3, 1889, to April 29, 1899, to seventy-nine dollars and sixteen cents ($79.16).

III. The decision in this court in the case of *Silas W. Terry*v. *The United States*(39 C. Cls. R., 353) allowing old navy pay where higher than army pay to rear-admirals of the nine lower numbers has been and still is followed by the accounting officers in the settlement of all pay of such rear-admirals, whether on the active or retired list from March 3, 1899, to date (11 Comp. Dec., 347, 645).

The account of the claimant has been settled in accordance therewith from July 1, 1899. But for the period embraced in this claim from March 3, 1899, to April 29, 1899, he has not been paid on account of a prior settlement, held, in the practice of the Treasury Department to prevent any resettlement of the account on a different basis.

*Mr. George A. King*for the claimant. *Messrs. George A. and William B. King*were on the brief.

*Mr. John Q. Thompson*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

*434Howry, J.,

delivered the opinion of the court:

The question in this case has heretofore been decided. *(Terry*v. *United*States, 39 C. Cls. R., 353.) Government declined to appeal on the conclusion reached, and the decision having been followed by the accounting officers in settlements with rear-admirals in the Navy, both on the active and retired list, from March 3, 1899, to the time of the filing of the present petition (11 Comp. Dec., 347, 645), the question at issue was supposed to be settled.- After some years, however, the question is again presented. As the present claim does not reach the jurisdictional amount sufficient to warrant an appeal if the decision be adverse to the claimant, the question as originally presented becomes of equal importance to those whose claims have been passed bjr the accounting-officers (because all settlements can be reopened) under construction given by the court as to the present claimant.

We held in Near-Admiral Terry’s case that the measure of compensation is that fixed by the statute antedating the navy personnel act of March 3, 1899 (30 Stats., 1005), and the amendatory act of June 7, 1900 (31 Stats., 697). Section 1556, Devised Statutes, fixed the pay of a rear-admiral for duty on shore. Though the general object of the navy personnel act was to equalize army and navy pay, that act did not operate to reduce pay previously fixed for naval officers. That is to say, where a naval officer was receiving a certain amount of pay when the personnel act was passed, that act did not by implication repeal the earlier act. This holding was strictly in line with the previous case of *Colhoun*v. *United States*(38 C. Cls. R., 198), where Weldon, J., delivering the opinion of the court, said that the object of the personnel act was to equalize as far as practicable the pay of the Army and Navy by making like rank'in each department equal, but not to reduce the compensation, and that the act of J une 7, 1900, engrafted on that policy the qualification that the pay of a naval officer should not be reduced and that he should receive the pay he would have received but for the passage of said act. In *Rio hards oíds case*(38 ibid., 182) we held that the purpose of the navy personnel act and the . amendatory act to it was to secure to officers who were in the *435Navy when the former act was passed, then and thereafter, so long as they should be in the Navy, as high pay as they would have received if navy pay had not been assimilated to army pay. The contention is again urged that the equality sought to be established by the personnel act will be disturbed by adhering to the construction under which allowances have heretofore been made.

Repeals by implication are nevér favored. Thus, a later treaty will not be regarded as repealing an earlier statute by implication unless the two are absolutely incompatible and the statute can not be enforced without antagonizing the treaty. *(United States*v. *Lee Yen*Tai, 185 U. S., 213.) If both can exist, the repeal by implication will not b.e adjudged, *(Johnson*v. Browne, 205 U. S., 309.) Under this general rule we have been unable to say that the navy personnel act as amended was so incompatible with the previous statute fixing pay that the two could not stand. We are still of that opinion, fortified as it is by *Rodgers*v. *United States.*(36 C. Cls. R., 266; 185 U. S., 83.) It was there held that section 7 of the personnel act (2 Supp. R. S., 971.) must be read in subordination to the proviso of section 13 (2 Supp. R. S., 972). In affirming the decision of this court the Supreme Court said that it was not to be believed that Congress by that section carved out a salary which *in all respects*ignored the general rules pertaining to salaries of naval officers, but that it was rather to be believed that only the amount was fixed and that otherwise it was to *be in harmony with and subordinate to any and all general provisions.*As this court and the Supreme Court have held the special provision of section 7 to be subject to the qualifications and restrictions of the first proviso of section 13, it follows that it is also subject to other general provisions qualifying the rules as to pay of naval officers. Especially is it true when the qualification was made not merely by a proviso to section 13, but by a subsequent act. It is therefore also subject to the provision of the act of June 7, 1900 (2 Supp. R. S., 1451), against reduction of pay.

There are anomalies in the navy personnel act as amended which have led to some confusion in construction. Thus, in *436
      *Farenholt*v. *United States*(41 C. Cls. R., 517) it was contended. by the Government that it was the purpose of Congress to give the inferior officers the better pay. No explanation of this inconsistency was offered by the Government, which contemporaneously with this decision seems to have been noticed by the Supreme .Court affirming *Farenholt'’s case.*(206 U. S., 226.) Other cases growing out of the navy personnel act, and which have caused some confusion, might be noticed, but no useful purpose can be served by making more than a general reference to the cases in this and in the court of last resort, inasmuch as these cases establish a general jmrpose by the passage of the personnel act to raise deficiencies in the pay of navy officers rather than to decrease the compensation previously fixed for duties peculiar to the sea and marine service.

Judgment will be entered for claimant in the sum of $79.16.