#### WILLIAM G. HANNUM v. THE UNITED STATES.

[No. 29833.

Decided March 30, 1908.]

*On the Proofs.*

An officer is retired from active service on one-half the pay to which he would be entitled if on leave of absence on the active list. This enforced retirement is upon the decision of a retiring board, in conformity with the provisions of the Eevised Statutes (§ 1454).

I. The *Navy Personnel Act Sd March, 1899*(30 Stat. L., p. 1007, § 13), provides that officers of the Navy shall receive the same pay and allowances which are provided by law for officers of corresponding rank in the Army. But this refers to officers of the Navy on the active list and does not extend to officers who were retired because of their own misconduct.

II. The pay of naval officers on the retired list is regulated by the Bevised Statutes (§ 1593, etc.).

*321
      *The Reporters'*statement of the case:

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

I. The claimant herein, William G. Hannum, entered the naval service as a cadet midshipman on September 24, 1872, and in October, 1900, held the rank of lieutenant in the United States Navy.

II. On October 22, 1900, claimant, upon a report of a retiring board, was placed on the retired list of the Navy as incapacitated for active service not a result of an incident of the service. Said report was approved and the claimant retired by order of the President, as follows:

Executive Mansion, *October 2%, 1900.*

The proceedings and findings of the board in this case are approved, and Lieut. William G. Hannum, U. S. Navy, will be retired from active service and placed on the retired list on furlough pay, in conformity with the provisions of section 1454 ox the Revised Statutes.

William McKinley.

III. Since his retirement as aforesaid, claimant has been paid at the rate of $1,071 a year, the same being one-half of the pay he would have received had he been on shore duty on the active list, except for a period from October 22, 1903, to May 6, 1904, when he was on active duty, under the act of June 7, 1900 (31 Stat. L., 703), and received $2,142 a year.

IV. Had claimant been paid 75 per cent of the pay of the rank upon which he was retired, as provided by section 1274 of the Revised Statutes, he would have received $1,890 a year instead of $1,071 a year, making a difference of $819 a year, which up to October 21, 1903, a period of two years eleven months and twenty-seven days, would have amounted to the additional sum of $2,450.17.

Had he been entitled under the next to the last proviso of section 13 of the personnel act (30 Stat. L., 1007), as amended by the act of June 7, 1900 (31 Stat. L., 697), to receive when on active duty the pay provided by Revised Statutes, section 1556, for lieutenants after five years from date of commission on shore duty, he would be entitled to $2,200 a year instead of $2,142 a year, making a difference of $58 a year. Therefore he would have received for the period while he was on active duty the additional sum of $31.42.

*322Had be been, paid from May 7, 1904, to December 81, 1906, at the rate of $1,890 a year instead of $1,071 a year, a period of two years seven months and twenty-four days, he would have received the additional sum of $2,170.25, making in all the sum of $4,651.84.

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

*Mr. Frederick De G. Faust*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Atkinson, J.,

delivered the opinion of the court:

The claimant entered the naval service as a cadet midshipman September 24, 1872, and attained the rank of lieutenant in the United States Navy in October, 1900. October 23, 1900, he was, by order of the President, transferred to the retired list of officers of the navy upon the decision of a retiring board in conformity with the provisions of sections 1454 of the Revised Statutes, and has since that date been enrolled on the Navy Register as a lieutenant on the retired list. He has since his retirement been paid, when not on active duty, at the rate of $1,071 per year, that being one-half of the pay to which he would have been entitled if on shore duty on the active list.

When on active duty, he was paid at the rate of $2,142 a year, this being the rate of pay under Revised Statutes, sections 1261 and 1262, of a captain in the army (corresponding to a, lieutenant in the navy) of more than twenty years’ service, with a reduction of 15 per cent for shore duty under the navy personnel act.

In accordance with the findings of the retiring board the President on October 22, 1900, as stated above, retired the claimant from active service and placed him on the retired list on furlough pay, which under section 1593 of the Revised Statutes, is *one-half the pay to which he would have been entitled if on leave of absence on the active list.*That is to say, at the time the claimant was retired he was receiving, under section 13 of the act of March 3,1899 (30 Stat. L., 1007), $2,142, one-half of which is $1,071, which amount he has since been paid.

*323He now contends that under said section 13 of the navy personnel act, supra, he is entitled upon retirement to the same pay as officers of the army of corresponding rank likewise retired under Revised Statutes, sections 1252 and 1274, which is “seventy-five per centum of the pay of the rank upon which they are retired.”

Section 13 of the navy personnel act, so far as material here, provides:

> _ “ That, after June thirtieth, eighteen hundred and ninety-nine., commissioned officers of the line of the navy and of the medical and pay corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers or corresponding rank in the army: Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty.”

This section has been the subject of frequent interpretation both by the Supreme Court and by this court, and we think it is now fairly well settled that the general pay of officers of the navy on the active list is the same as that of officers of the army of corresponding rank. *(The United States*v. Thomas, 195 U. S. R., 418, 420.)

The title indicates the purpose of the act as well as the language quoted, and, when considered in connection with the provisos to the section, evidently means commissioned officers on the active list.

While the pay of naval officers on the active list is fixed by said section, no provision is therein made for their pay on the retired list. Such pay is regulated by the retirement sections of the statute, to which reference has been made.

The last proviso in express terms says: “ That nothing in this act shall operate to increase or reduce the pay of any officer now on the retired list of the navy.” This shows, we think, that Congress did not intend by the act to repeal or modify the law as it existed relating to the pay of naval officers on the retired list, present or future.

By sections 8 and 9 of said act provision is made for both voluntary and involuntary retirement *“*with the rank and three-fourths the sea pay of the next higher grade; ” while by section 11 it will be noted that to entitle an officer of the *324navy who served during the civil war to retirement with the rank and three-fourths the sea pay of the next higher grade he must have a “ creditable record.”

We must therefore conclude that had Congress intended by their legislation to increase the pay of officers of the navy on the retired list who were retired because of their own misconduct, as provided by said section 1454, they would have said so; and as the last proviso to said act expressly excluded officers on the retired list at the time the act was passed from the operation thereof, we can see no reason why officers retired since the passage of the act by reason of their own misconduct, as in the case at bar, should not receive the pay provided for by section 1593, and especially as such has been the ruling of the executive departments having to do with such retirements since the act was passed.

For the reasons given we must hold that the claimant is not entitled to recover, and his petition is dismissed.