#### MARSHALL M. CLOUD v. THE UNITED STATES.

[No. 22944.

Decided December 9, 1907.]

*On the Proofs.*

An assistant surgeon in the Army, appointed with the rank of first lieutenant, at the end of five years begins to receive the pay of a captain, mounted. After some months, while thus receiving captain’s pay, he is ordered before a retiring board. In accordance with the findings of the board he is retired for incapacity for active service. The.question in the case is whether he shall be paid three-fourths of the pay he was actually receiving at the time of retirement or three-fourths of the pay of his rank irrespective of his five years’ service.

I. Executive orders accomplish retirement only as they apply to particular cases, and when not in conflict with law. It is the law and not the recommendation of a retiring board, *70though supplemented by the approval of the President, which fixes an officer’s status and consequent right to pay; and where the decision will turn exclusively upon the proper construction of a statute an executive order is not final; and the court has jurisdiction.

II.Pay always follows rank; but rank is not an office. The cases reviewed.

III. In the ease of assistant surgeons in the Army there may be promotion to a higher grade by operation of law from mere duration of service, independently of any action by the appointing power. The *Act 2Sd, June, 18V¡*(18 Stat. L., 244), grants rank and pay under certain conditions.

IV. Where an officer eligible for promotion is to be examined for promotion and fails in his physical examination, and is found incapacitated by reason of physical disability contracted in the line of his duty, he is entitled to be retired with the rank to which his seniority entitles him to be promoted; and this finding of a retiring board is the necessary equivalent of the only finding that could have been made by the board of promotion.

V.Rank as well as pay of retired officers is entirely within the control of Congress; and a new commission is not necessary where an officer is entitled to be retired with the rank to which his seniority entitles him to be promoted.

*The Reporters’*statement of the case:

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

I. The claimant was on November 13, 1896, appointed an assistant surgeon in the United States Army with the rank of first lieutenant, and accepted his commission on November 14, 1896.

II. The proceedings relating to the claimant’s retirement are as follows:

*“*Special Orders, *)*Headquarters op the Army, >• Adjutant-General’s Oppice, “ No. 42. j Washington, *February*19, *1902.*

[“ Extract.]

$ $ $ * *

“ 8. Under instructions from the President, and in accordance with section 1246, Revised Statutes, an army retiring board is appointed by the Secretary of War to meet at Fort Leavenworth, Kansas, at the earliest date practicable, at the *71call of tbe president of the board, for the examination of sucb officers as may be ordered before it.

*“Detail for the board.*

*“*Lieutenant-Colonel *Jacob A. Augur,*4th Cavalry.

“ Major *Smith S.*Leach, Corps of Engineers.

“ Major *Henry P. Birmingham,*surgeon.

“ Major *Paul Shillock,*surgeon.

“ Captain *George W. Van Deusen,*Artillery Corps.

“ First Lieutenant *Fred W. Hershler,*4th Cavalry, recorder.

“ Such journeys as it may be necessary for Major *Shillock*to make in attending the meetings of the board and returning to his proper station are necessary for the public service.

*****

“ By command of Lieutenant-General Miles:

“ H. C. CORBIN,

*Adjutant-General, Major-General, U. S. Army.*

“ Special Orders, 1 Headquarters op the Army, >• AdjutaNt-GeNeral’s Oeexge, “ No. 42. j *Washington, February 19,1902.*

[“ Extract.]

$ ‡ $

“ 9. Under instructions from the President 1st Lieutenant *Marshall M. Gloud,*assistant surgeon, U. S. Army, is directed by the Secretary of War to report in person to Lieutenant-Colonel *Jacob A. Augur,*4th Cavalry, president of the army retiring board appointed to meet at Fort Leavenworth, Kansas, at such time as he may designate, for examination by the board.

# ❖ * ❖ ***

“ By command of Lieutenant-General Miles:

“ H. C. CORBIN,

*“Adjutant-General, Major-General, U. S. Army.*

“ Proceedings of an army retiring board convened at Fort Leavenworth, Kansas, by virtue of the following order:

“ Special Orders, 1 Headquarters oe the Army, >• AdjutaNt-GeNeral’s Oeeice, “ No. 42. j *Washington, February 19,1902.*

[“ Extract.]

$ ‡ $

“ 8. Under instructions from the President and in accordance with section 1246, Revised Statutes, an army retiring *72board is appointed by the Secretary of War, to meet at Fort Leavenworth, Kansas, at the earliest date practicable, at the call of the president of the board, for the examination of such officers as may be ordered before it.

*“Detail for the hoard.*

“ Lieutenant-Colonel Jacob A. Augur, 4th Cavalry;

“ Major Smith T. Leach, Corps of Engineers;

“Major Henry P. Birmingham, surgeon;

“ Major Paul Shillock, surgeon;

“ Captain George W. Van Deusen, Artillery Corps;

“ First Lieutenant Fred W. Hershler, 4th Cavalry, recorder.

* * ❖ Hi *

“ By command of Lieutenant-General Miles:

“ H. C. CORBIN,

*“Adjutant-General, Major-General, TJ. 8. Army.*

“ *Certificate of medical officers of retiring hoard convened hy 8. O. No. 1$, A. G. O., c. s., in the case of 1st Lieut. M. M. Cloud, asst, surgeon, TJ. 8. Army.*

“After a careful consideration of the symptoms and general history of the case as set forth by the patient and in the official papers submitted to the board the medical members are of the opinion that Assistant Surgeon Cloud is suffering from general neurasthenia, the cerebral type rather predominating. His mentality is decidedly sluggish, he has some incoordination, and muscular weakness is marked.

“ The medical members are further of the opinion that this disability is due to service in the military camps in the Southern States during the Spanish-American war and that it was incurred in line of duty.

“ H. P. BIRMINGHAM,

*“Major and Surgeon, U. 8. Army.*

“ Paul Shillock,

*“Major and Surgeon, TJ. 8. A.*

“ Ft. Leavenworth, Kans.,

*“February 25, 1902.*

“ 419691 A. G. O. ’ War Department,

“Adjutant-General’s Oeeice,

“ *Washington, Feb. 21, 1902.*

“ Lieut. Col. J. A. Augur,

“ *Ifth Cavalry, President of Retiring Board,*

“ *Fort Leavenworth, Kansas.*

“ Sir : I have the honor to transmit herewith a copy of an order directing 1st Lieutenant Marshall M. Cloud, asst, surg., *73to report to you in person for examination by the retiring board of which you are the president, together with a statement of his miltary service, compiled from the records of this office, and the papers relating to his case.

“ The Secretary of War directs that the case be taken up on the date on which this officer shall report for examination, or as soon thereafter as practicable, in order that he may not be detained longer than his examination requires. This is important in his interest, as an officer ordered before a retiring board is not provided with quarters while in attendance.

“ The Secretary further directs that, in case the board find this officer incapacitated for active service, it state, in addition to its usual legal finding, whether or not, in its opinion, such incapacity is permanent, the specific cause thereof, and its judgment as to date or origin or the disability; and that in case it find him disabled, but not permanently so, or it being unable to arrive at a definite finding, it submit its recommendation as to the course to be pursued to secure his restoration to health, or to determine the question of his fitness for further service.

“ The address of Lieutenant Cloud is Fort Leavenworth, Kansas.

“ The papers enclosed are designated as follows:

“ 104934 A. G. O. and its A.

“ 342508 “ “ “ and its A.

“ 363935 “ “ “ and its B, C, and D.

«400159 “ « “

«419220 “ “ “

“419691 « « “

« Military history.

“Medical history.

“ Par. 9, S. O. 42, Feb. 19, 1902, A. Gr. O.

Very respectfully,

“W. H. Carter,

*“Assistant*Adjutant-General.”

In accordance with the findings of said retiring board, its proceedings having been approved by the President, the claimant was placed upon the retired list of the army on March 25, 1902, by the following order issued by the Secretary of War:

“ 15. First Lieutenant Marshall M. Cloud, assistant surgeon, U. S. Army, having been found by an army retiring board incapacitated for active service on account of disability incident thereto, his retirement from active service by the President, March 25, 1902, under the provisions of section 1251, Revised Statutes, is announced by the Secretary *74of War. Lieutenant Cloud will proceed to his home. The travel enjoined is necessary for the public service.”

Claimant has continuously remained on the retired list since said date.

III. Upon the date of the. claimant’s appointment up to November 13,1901, he was paid as a first lieutenant, mounted, at the rate of $1,600, in his first five years of service, provided by section 1261 of the Revised Statutes. From November 14,1901, to March 25,1902, he was paid as a captain, mounted, of over five years’ service, at the rate of $2,200 a year. From March 26 to 31, 1902, he was paid the retired pay of a captain, mounted, of over five years’ service, being three-fourths of the active pay, to wit, $1,650 per annum, as fixed by Revised Statutes, sections 1261, 1262, and 1274. From April 1, 1902, to September 30, 1903, the claimant has been paid as a first lieutenant, mounted, on the retired list, with one longevity increase, at the rate of $1,320 a year, being three-fourths of the pay of such officer upon the active list, as fixed by sections 1261,1262, and 1274 of the Revised Statutes.

IY. The following general orders were in force in the War Department at the time of the claimant’s retirement:

“ General Orders,] War Department, [ Adjutant-General’s Oppice, “ No. 41. ) Washington, *June 1897.*

“ The following rules prescribed by the President, in accordance with section 3 of the act of Congress approved October 1, 1890, providing for a system of examination to determine the fitness for promotion of all officers of the army below the grade of major, are published for the information and guidance of all concerned:

“The examination of all officers of the army below the rank of major shall be conducted by boards selected in accordance with laws approved October 1, 1890, and July 27, 1892, published in G. O., No. 116, 1890, and G. O., No. 57, 1892, respectively, and composed as follows':

*“Officers of the line.*— The board will consist of five members and a recorder. Two of the members will be medical officers and three will be line officers senior in rank to, and, so far as practicable, from the same arm of service as the officer to be examined.

*“Officers of the Corps of*Engineers, *the Signal*Corps, *the*Ordnance, Quartermaster’s, *and Subsistence*Departments.— The board will consist of five members, two of whom will be *75medical officers, and three of the same corps or department, when practicable, as the officer to be examined, and senior to him in rank, the junior of whom will act as recorder.

*“Medical officers.*— The board will consist of three medical officers, senior in rank to the officer to be examined, the junior of whom will act as recorder; *provided, that whenever a medical officer is found to he physically disqualified the hoard will report to the Adjutant-General and adjourn, pending appointment of two additional members, who may he from any line or staff officers available, senior in rank to the officer to he examined. The hoard will then proceed under the rules governing retiring hoards.*

*“*The organization of boards will conform to that of retiring boards, the recorder swearing the several members, including the medical officers, faithfully and impartially to examine and report upon the officer about to be examined, and the president of the board then swearing the recorder to the faithful performance of his duty. Proceedings will be made separately in each case.

“ Previously to the swearing of the board, members thereof may be challenged for cause stated to the board, the relevancy and validity of which shall be determined by the full board, according to the procedure of courts-martial in like cases. The record will show that the right to challenge was accorded. If the number of members is reduced by challenge or otherwise, the board will adjourn and report the facts to the Adjutant-General, through the president of the board, for the action of the War Department. Medical officers will not take part in the professional examination, except in the cases of assistant surgeons. They will make the necessary physical examination or all officers and report their opinion in writing to the board. All questions relating to the physical condition of an officer shall be determined by the full board.

“ If anything should arise during the examination requiring the introduction of evidence, the inquiry shall proceed upon written interrogatories, as far as possible, the board determining to whom questions shall be forwarded. When, in the opinion of .the board, it becomes essential to take oral testimony, the facts should be reported to the War Department for the necessary orders in regard to witnesses to be summoned from a distance. Witnesses examined orally will be sworn by the recorder.

“ All public proceedings will be in the presence of the officer under examination; the conclusions reached and the recommendations entered in each case will be regarded as confidential.

*76“ Before proceeding wiüi the physical examination the officer about to be examined will be required to submit, for the information of the board, a certificate as to his physical condition. In event of no cause for disqualification existing the certificate will take the following form:

“ ‘ I certify, to the best of my knowledge and belief, I am not affected with any form or disease or disability which will interfere with the performance of the duties of the grade for promotion to which I am undergoing examination.’

“ The physical examination will be thorough and will include the ordinary analysis of the urine.

“ Defects of vision, resulting from errors of refraction, that are not excessive and that may be entirely corrected by glasses, do not disqualify unless they are due to or are accompanied by organic disease.

“ *When the 'board finds an officer physically incapacitated for service it shall conclude the examination by finding and reporting the cause*which, *in its*judgment, *has produced his*disability, *and whether such disability was contracted in the line of duty.*

“ Whenever the board finds an officer disqualified for promotion from any cause, the record will contain a full statement of the case.

“ When the board finds an officer qualified for promotion, it will be stated in the following form:

“ ‘ The board is of the opinion that-has the physical, moral, and professional qualifications to perform efficiently all the duties of the grade to which he will next be eligible, and l’ecommends his promotion thereto.’

“ The record in each case where an officer is found physically disqualified shall be authenticated by all the members, including medical officers and the recorder. In all other cases the medical officers will not be required to sign the proceedings. If any member dissents from the opinion of the board, it will be so stated. ,

“Any officer reported by a retiring board as incapacitated by reason of physical disability, the result of an incident of service, shall, if the proceedings of said board are approved by the President, be regarded as physically unfit for promotion within the meaning of section 3 of the act of October 1, 1890, and will be retired with the rank to which his seniority entitles him whenever a vacancy occurs that otherwise would result in his promotion on the active list; provided, that before the occurrence of such vacancy he shall not have been placed on the retired list.

“ During oral and practical examinations all the members, excepting the medical officers, will be present.

*77“ Written examinations may be conducted in the presence of one member of the board, or the recorder, for which purpose the board may be divided into committees, before whom the examination shall be conducted from day to day until completed; after Avhich the board will reassemble to consider its finding.

“ By order of the Secretary of War;

“ Geo. D. Euggles,

*UA djutant- General*

V. In the retirement of officers under the act of October 1, 1890, section 3 (26 Stat. L., 562), it has been the practice of the War Department, if the officer fails in his physical examination before a board of promotion and is found incapacitated for service by reason of physical disability contracted in the line of duty, to refrain from further examination as to the officer’s professional qualifications and to report his physical disability to the Secretary of War. Thereupon, if the findings of the board are approved, it has been the practice of the department, without further examining the officer, to retire him with the rank to which his seniority entitles him to be promoted.

VI. The following General Order was issued by the War Department on its date and remained in force until superseded by General Order No. 41 of 189.7, set forth in Finding IV:

“ General Orders, 1 Headquarters oe the Armv, [ Adjutant-General’s Oeeioe, “ No. 128. j Washington, *October 29,1890.*

*“*The following rules, prescribed by the President, in accordance with section 3 of the act of Congress approved October 1, 1890, providing for a system of examination to determine the fitness for promotion of all officers of the army below a certain grade, are, by direction of the Secretary of War, published for the information and guidance of all concerned.

“ I. — At such time anterior to the accruing of the right to promotion as may be best for the interests of the service, officers of the line of the army and of the Quartermaster’s and Subsistence departments below the rank of major shall be examined by a board, convened by the War Department, consisting of five members, two of whom shall be selected *78from the Medical Corps, and a recorder. The board, excepting- the officers of the Medical Corps, shall be composed of officers senior in rank to the officer to be examined and, as far as practicable, of the arm of service or department to which the officer belongs. The duties of the medical officers will be confined to the physical examination.

“ II. — Examination shall be made under the following heads:

“ 1. Physical condition.

“ 2. Character and professional efficiency.

“ *III.*— When *the board finds an officer physically incapacitated for service it shall conclude the examination by finding and reporting the cause which, in its judgment, has produced his disability, and whether such disability was contracted in the line of duty.*For the purpose of this inquiry the proceedings of the board shall conform to those of a retiring board.

“ IY. — When the board finds an officer physically capable, the examination shall proceed under the second head. Any evidence submitted as to character will be carefully considered, and such proceedings taken as, in the opinion of the board, the case requires; provided, that an adverse finding shall not be entered until the officer shall have been fully heard in his own behalf.

‡ ‡ ‡ *

“ *IX.*— Any *officer heretofore reported by a retiring board as incapacitated by reason of physical disability, the result of an incident of service, shall, if the proceedings of said board are approved by the*President, *be regarded as physically unfit for promotion within the meaning of section 3 of the act of October 1, 1890, and will be retired with the ranh to which his seniority entitles him whenever a vacancy occurs that otherwise would result in his promotion on the active list;*provided, that before the occurrence of such vacancy he shall not have been placed on the limited retired list; and further provided, that any officer who objects to retirement under the provisions of this paragraph shall, upon his own application, be reexamined under the general provisions of this order.

“ X. — The examining board shall report its recommendation of any officer for promotion in substantially the following form:

‘“We find that-has the physical, moral, and professional qualifications to perform efficiently all the duties of the grade to which he will next be eligible, and recommend him for promotion thereto.’

*79*“*Each record must be signed by every member and by the recorder, and must show who of the members concurred in and who, if any, dissented from the opinion of the board.

“ Whenever the board fails to recommend a candidate for promotion the record will state the cause of such failure.

“ The proceedings shall be forwarded to the Adjutant-General of the Army for the final action of the Secretary of War.

“ By command of Major-General Schofield:

“ ChauNcey McKeever,

*“Acting*Adjutant-General.”

*Mr. William B. King*for the claimant. *Messrs. George A. (& William B. King*were on the brief:

In the former briefs the right of the claimant under the statute is very clear. His right to the pay, his right to the rank, was considered as settled by *Wood*v. *United States*(15 C. Cls., 161), *Medbury*v. *United States*(173 U. S., 492), and *Jasper*v. *United States*(38 C. Cls., 205).

This discrimination between rank and office has been exhaustively considered by this court in *Wood*v. *United States*(15 C. Cls., 151, 158).

That case is directly in point here. This claimant held and still holds the office of assistant surgeon. His rank in that office is regulated by Congress. This rank is dependent upon the happening of certain events. These happened and, without any executive act, but by virtue of the act of Congress, he at once entered into the rank and is entitled to the pay as affixed to it by law (Rev. Stat., secs. 1261, 1262, and 1274, P- 90)..

A discussion of the same question occurred in an opinion of the Attorney-General in 1880 (16 Opin., 414). A pay inspector of the navy having the relative rank of commander claimed that he should be commissioned “ pay inspector of the grade of commander ” instead of “ pay inspector with the relative rank ” of commander.

The Attorney-General, quoting the Woods opinion with approval, declared that he held the office of pay inspector, but not that of commander, and was entitled to be commissioned to the office of pay inspector, to which, in the discretion of the President, might be appropriately added his relative rank.

*80A very careful definition occurs in this opinion of the words “ title,” “ grade,” and “ rank,” an often discussed subject in military law.

This opinion recognizes the difference insisted upon in this case between the office conferred by the appointment of the President and the rank granted by Congress and not by the Execütive.

The Woods case, at a date subsequent to this opinion, was affirmed by the Supreme Court *(Woods*v. *United*States, 107 U. S., 414). The opinion of the Court of Claims was fully approved.

The last case on this subject is *Hawkins*v. *United States*(40 C. Cls.), decided by this court on December 20, 1904.

That recognizes the doctrine insisted upon here, that grade or rank is granted by Congress and that the pay given by law as an incident to the rank so granted will be allowed by this court without regard to the failure of the department to recognize the rank.

The decisions of this court and the Supreme Court in the cases of the cadet engineers are in point. *(Leopold*v. *United*States, 18 C. Cls., 546; *Redgrace*v. *United States,*20 C. Cls. R., 226, presented the same question; *Perkins*v. *United*States, 20 C. Cls. R., 438.)

The last two cases were affirmed by the Supreme Court of the United States (116 U. S., 47A483).

The principle in those cases is substantially the same as in this — that the pay of an officer can be recovered in this court, notwithstanding the refusal of the head of the administrative department to recognize him in his office. This case does not go so far. The possession of the office is undisputed; the question is simply one of rank in the office.

The principle upon which this court relied in its original opinion in the *Jasfer ease*(rec., p. 73) is the very broad principle declared in *Medbury*v. *United States*(173 U. S., 492).

This doctrine is fully applicable to the present case. Rank upon the retired list and consequent pay were conferred by Congress upon this claimant. It was the duty of the Secretary of War to recognize this rank and of the Secretary *81of the Treasury to pay the claimant in the rank so conferred. The executive tribunal failed to give to the claimant what Congress has granted to him; it remains for this court to enforce the remedy.

Congress may give rank without pay, as in the case of *Rear-Admiral John R.*Bartlett, act of February 10, 1903 (32 Stat. L., 821), but in the absence of any such express restriction, pay follows rank.

Thus it is made clear that in giving the officer rank, the intention of Congress is to give the pay of that rank. These authorities make clear the propositions laid down in the opening. These may be summarized as follows:

1. Office is conferred by the Executive alone. No right to pay of an office accrues until an appointment thereto.

2. Title, grade, and rank are all incidents to office which rest upon the authority of Congress.

3. The right to pay follows the grant of rank.

4. The failure of the Executive to recognize an officer as possessing rank deprives him neither of the rank nor of the appropriate pay.

This claimant was retired under the system of examination provided by the President under the act of 1890 because “ incapacitated for service by reason of physical disability contracted in line of duty.” He was entitled at the time to promotion by reason of his seniority arising from his five years’ service. The statute grants him higher rank and consequent pay on retirement under such circumstances. This court has authority to award him pay in that rank and thus remedy the monetary wrong done him by the Executive.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney-General Van*Orsdel) for the defendants:

In view of the law fixing the status of executive orders, it is submitted that the court ought not to take jurisdiction of this case; and there is another reason that may be given why the courts have not jurisdiction, and that is because the finding of a retiring board under section 1251, Revised Statutes, is in the nature of a recommendation, and until approval by the President no retirement can be ordered thereon. When *82approved by the President it is conclusive as to the facts. The law does not empower him to modify the finding or substitute a different one. There is here a judicial power vested in the two and not in the President alone, and when the power has once been fully exercised it is exhausted as to that case. *(United States*v. Burehard, 125 U. S., 179; *Miller*v. *United*States, 13 C. Cls. B., 338.)

There can be no question that at the time section 3 of the act of October 1,1890, was enacted there was no intention expressed by Congress to apply its provisions to section 1251 of the Bevised Statutes, and the two provisions of the Bevised Statutes, that an officer shall be retired upon the actual rank held by him at the date of retirement, and that he shall receive when retired 75 per cent of the pay of the rank upon which he was retired, are in direct conflict with the provisions of the act of October 1, 1890, that an officer shall be retired as of the next higher grade. The authorities cited under the preceding heading negative the idea that an executive order has the force and effect of law, while in the *Remey ease*(33 C. Cls. B., 218) this court held that officers must be retired from active service “ upon the actual rank held by them at the date of retirement.” Therefore, if there exists no provision in the statute law for the application of thei proviso of the act of October 1, 1890, that officers shall be retired as of the next higher grade, to section 1251 of the Bevised Statutes, it is impossible that this can be accomplished by an executive order of the character of General Orders, No. 41. There is, in fact, no reason why the act of October 1, 1890, and sections 1251, 1254, and 1274 should not stand together and perform their allotted functions without coming into conflict, and there is no reason why their evident purport and intent should be changed by this executive order.

It has been the practice of the War Department to send before retiring boards only those officers afflicted with maladies which render it apparent that they are incapacitated for further active service, while officers are sent before boards of examination for promotion who are apparently in that physical condition necessary for active duty.

*83The claimant in this case had served for a comparatively short time, only about five and a half years; during which he had been sick for over one year and eight'months. When he made application for retirement he was evidently ordered before a retiring board instead of a board of promotion, because the Secretary of War did not “ look with favor upon the retirement of officers who had served so briefly as had Doctor Cloud,” and it was the intention of the appointing power that he should not be retired with higher rank and pay. The claimant reached his period of five years’ service on November 14, 1901, and from that date until April 1, 1902, sis days after his retirement, he received the pay of a captain, mounted. This was done in accordance with the invariable practice of the Pay Department, upon the supposition that officers are qualified to pass examinations necessary for their promotion.

The office of assistant surgeon may be held by officers of two different grades — that of first lieutenant,- mounted, and of captain, mounted — -and it is conceded that a promotion from the lower to the higher grade may result from a period of five years of service, after examination, without a new appointment to the higher grade; but it is contended that examination is an indispensable requisite to promotion to the higher rank.

The act of July 27, 1892, *supra,*provides peremptorily for the examination of assistant surgeons before they shall receive the rank of captains of cavalry, and this provision of law can not be superseded by an executive order. An examination, in other words, was provided by Congress as a *sine qua non*to the promotion of an assistant surgeon.

Even taking it for granted that General Orders, No. 41, had the force and effect of law, a glance at the paragraph quoted is sufficient to convince anybody that it was never intended to apply to assistant surgeons, but only to line officers, because the act of June 23,1874, provides that the Medical Department of the army shall hereafter consist of *150*assistant surgeons, who shall be first lieutenants of cavalry for the first five years and captains of cavalry after five years of service. Therefore it was not necessary that a vacancy should occur in order to entitle an officer to promotion from one *84grade to the other, the only requisite being, as before stated, an examination as to proficiency.

The court in *Wood*v. *United States*(15 C. Cls. B.., 161), said, speaking of an officer: “ He may be retired with a rank higher or lower than that which belongs to his office whenever Congress sees fit to provide.” Therefore the only remedy for the claimant in this case would appear to be through legislative action.

Howry, Judge,

delivered the opinion of the court:

This is an action by an assistant surgeon on the retired list of the army^ claiming the difference between the pay received 1031" him in the rank of first lieutenant of cavalry and the pay alleged to be due to him in the rank of captain.

Plaintiff was appointed assistant' surgeon with the rank and pay of first lieutenant from date of appointment until the expiration of five years from the date of commission, when he began to draw pay as captain on the active list. He was also given the retired pay of a captain of over five years’ service for a short time. The third finding lends emphasis to the right of pay in the rank of captain by operation of law by reason of the lapse of the statutory period of service of five shears according to the practice of the War Department. Thus, this departmental construction gave effect to the amount of pay according to the rights pertaining to seniority and length of service.

Afterwards, on the recommendation of a retiring board, he was relieved by general orders on account of neurasthenia of the cerebral type — the neurasthenic kind of brain storm that leads to insensibility and from which sometimes there is said to be no return.

But since the order plaintiff has been paid as first lieutenant. His contention is that having served five years he is entitled to have his pay calculated upon the basis of the amount he was drawing as captain when the order took effect. Defendants contend that the decision of the retiring board which passed upon the case is in the nature of a recommendation ineffective until approved by the President, but conclusive when so approved. On the merits it is contended that the pay of an. officer retired from active service being *85pay rank upon which the retirement is had, the officer’s status is governed by that section of the law which declares 75 per cent of the pay of the rank of retirement; and, as plaintiff was retired with the rank of first lieutenant of cavalry, there can be no recovery for more pay (8 Comp. Dec., 872).

Executive orders only accomplish retirement under the army regulations as they apply to particular cases and when not in conflict with the law. Nor are administrative decisions generally intended by those responsible for them to do more. As said by Mr. Justice Miller in a revenue case (107 U. S., 411), “it is the *law*which gives the right;” and here it is the law which fixes the officer’s status and consequent pay and not the recommendation of a retiring board, even though supplemented by orders which have met the approval of the President.

In Medburyv. (173 17. S., 497) where the construction of an act was under consideration, the court speaking by Mr. Justice Peckham, said:

> were any disputed questions of fact before the Secretary, his decision in regard to those matters would probably be conclusive, and would not be reviewed in any court. But where, as in this case, there is no disputed question of fact, and the decision turns exclusively upon the proper construction of the act of Congress, the decision ox the Secretary refusing to make the payment is not final, and the Court of Claims has jurisdiction of such a case.”

the recognition of an officer’s rank by the head of the administrative department is an essential condition to the officer’s right to receive the pay of that rank can best be determined by observing the distinction between office and rank. Pay always follows rank. But rank is not an office. Thus, in *Wood*v. *United States*(15 C. Cls., 151) it was held that rank was often used to express something different from office and that Wood’s retirement with the rank of major-general under an act authorizing it did not make him a major-general. He remained a colonel of cavalry, to which office he had been appointed, and he acquired new and higher rank by the act which authorized his retirement. On appeal the Supreme Court affirmed the decision of this court *86(107 U. S., 414), holding that General Wood, though in office as a colonel, could not retire with the rank of major-general, because the statute did not confer on him that office, but that he remained in the office of colonel. Nevertheless he acquired a higher rank and higher pay as a retired officer. In *Hawkins*v. *United States*(40 C. Cls. R. 110) this court found that Hawkins had been an assistant surgeon with the rank of captain in the militia of Indiana and that his regiment volunteered for service in the war with Spain. Both War and Treasury departments recognized him as an assistant surgeon of the rank only of first lieutenant under the act of Congress of 1874. It was contended that an act (30 Stats., 362) which authorized the enrollment of militia regiments made Hawkins an officer of the same grade in the service of the United States as that held by him in the militia. Regardless of departmental recognition this court held that he could recover pay in the grade to which he was entitled to claim by law. Other cases in this and in the court of last resort sustain the proposition that grade or rank is granted by Congress and the pay given by law is an incident to the rank so granted which the court can allow without regard to departmental, recognition. *(Leopold*v. *United*States, 18 C. Cls., 546; *Redgrave*v. *United*States, 20 *ibid.,*226; *Perkins*v. *United States, ibid.,*438; 116 U. S. R., 474, 483.)

Having jurisdiction to adjudge pay to an officer regardless of the refusal of the head of the administrative department to recognize him in the office which he holds, the differences between the contentions of the parties will best be understood by reference to the Revised Statutes and regulations pertaining to the subject, and which must govern the result.

> “ Sec. 1251. When a retiring board finds that an officer is incapacitated for active service and that his incapacity is the result of an incident of service, and such decision is approved by the President, said officer shall be retired from active service and placed on the list of retired officers.

> “ Sec. 1254. Officers hereafter retired from active service shall be retired upon the actual rank held by them at the date of retirement.

> *87“ Sec. 1261. The officers of the army shall be entitled to the pay herein stated after their respective designations:

> “ ‘ Captain, mounted: Two thousand dollars a year.

> $$$$$$$

> *“ ‘*First lieutenant, mounted: Sixteen hundred dollars a year.’

> * $ H* H* $ ‡ $

> “ Sec. 1262. There shall be allowed and paid to each commissioned officer below the rank of brigadier-general, including chaplains and others having assimilated rank or pay, ten per centum of their current yearly pay for each term of five years of service.

> “ Sec. 1274. Officers retired from active service shall receive seventy-five per centum of the pay of the rank upon which they are retired.

> “ Sec. 1212. * * * no officer shall be addressed in orders or official communication by any title than that of his actual rank.”

Act of June 23, 1874, section 4 (18 Stats., 244):

> “ That the Medical Department of the Army shall hereafter consist of * * * one hundred and fifty assistant surgeons, with the rank, pay, and emoluments of lieutenants of cavalry for the first five years’ service, and with the rank, pay, and emoluments of captains of cavalry after five years’ service.”

Act of October 1, 1890, section 3 (26 Stats., 562):

> “ That the President be, and he is hereby, authorized to prescribe a system of examination of all officers of the army below the rank of major to determine their fitness for promotion, such an examination to be conducted at such times anterior to the accruing of the right to promotion as may be best for the interest of the service; * * * *And*provided, That should the officer fail in his physical examination and be found incapacitated for service by reason of physical disability contracted in line of duty he shall be retired with the rank to which his seniority entitled him to be promoted.”

Act of July 27, 1892, section 2 (27 Stats., 276):

> “ That before receiving the rank of captain of cavalry assistant surgeons shall be examined under the provisions of an act approved October first, eighteen hundred and ninety, entitled ‘An act to provide for the examination of certain officers of the army, and to regulate promotions therein. ’ ”

The question is one of rank in the office. Plaintiff is an assistant surgeon and was duly appointed as such under the *88act of June 23, 1874 (18 Stats., 244). By that act he became entitled to the rank, pay, and emoluments of lieutenant of cavalry for the first five years’ service, and with the rank, pay, and emoluments of captain of cavalry after five years’ service. No matter whether he was ever recognized as having the rank of captain or that of first lieutenant, he held in active service after five years the office of assistant surgeon, and in retirement it follows that he also holds the office of assistant surgeon, and that only. Having been appointed to that office his status was well defined to be a peculiarity with reference to change in rank under an act similar to that here. “Assistant surgeons under section 1168, B. S.,” said the Judge-Advocate-General, “ are the only officers in our army except lieutenants of engineers and ordnance in whose case promotion to a higher grade results by operation of law from mere duration of service and independently of any action by the appointing power.” (Digest of Opinions, 1901, par. 525.) In holding the office, the statute grants rank and pay of first lieutenant under certain conditions and rank and pay of captain under certain other conditions.

The act of October 1, 1890, *supra,*provides that the officer “ shall be retired with the rank to which his seniority entitled him to be promoted.” General Orders, No. 41, of 1897, carried this statute into effect by saying that an officer reported by a retiring board as incapacitated would be retired with the rank to which his seniority entitled him whenever a vacancy occurred that would otherwise result in promotion on the active list.

General Orders, No. 41, *supra,*opened the way under the statute for officers eligible for promotion under the act of 1890 to be examined for the promotion to which their seniority entitled them. Section 3 of the act authorized the President to prescribe a system of examination of all officers of the army below the rank of major to determine the matter of fitness, and this examination was directed to be conducted at such times anterior to the accruing of the right to promotion as might be best for the interests of the service. But there was a proviso that if the officer should fail in his physical examination, and be found incapacitated by reason *89of physical disability contracted in the line of duty, the officer should be retired with the rank to which his seniority entitled him to be promoted. Plaintiff was examined previous to retirement by a retiring board under this proviso, and not by the examining board appointed specially for that purpose. The general order disclosed by the findings gives to the fact found by the retiring board respecting the officer’s physical disqualification the precise effect of a finding by the examining board. It seems to the court upon careful review of all the questions that the finding of the retiring board is the necessary equivalent of the only finding that could have been made by the board of promotion. The first and only thing that the board of promotion could have done, had the officer appeared in person before it, would have been to direct the officer to go before the retiring board and thus procure the necessary certificate of physical eligibility which in itself was the thing entitling him to be examined for promotion or to retirement in the senior rank if not qualified physically. Though the assistant surgeon was never commissioned in the rank of captain, a new commission was unnecessary on promotion in rank. The reason for this grows out of the difference between office and rank and pay, as heretofore explained. Rank, as well as pay of retired officers, we have seen, is entirely within the control of Congress. By way of further illustration of the consequences of this control and the technicalities affecting grades and pay, a medical director may have the relative rank of captain, impossible of promotion, however, to a higher place in the medical corps, but he may have a higher rank conferred upon him than that of captain and obtain the pay of the rank. (22 Opin. of Attorneys-General, 433.) The argument that the War Office did not look with favor upon the retirement of officers who served so briefly as this officer is beside the legal aspect of the matter and ought not to influence the result. Section 3 of the act of 1890, *supra,*defining the rights of promotion, provided retirement with the rank to which his seniority entitled the officer; and section 2 of the act of 1892, *supra,*gave the officer the rank of captain of cavalry when, under the provisions of the act of 1890, he was as an assistant surgeon examined by the retiring board, which was a preliminary essential in the ma*90chinery in determining the status of the officer. The system of examination provided was designed to determine fitness for promotion. The advancement of assistant surgeons to the rank and pay of captains on the retired list was determined not by their fitness for promotion, but by their term of five years’ service. When incapacitated by reason of physical disability, they were necessarily retired by operation of law in that rank to which the officer’s seniority entitled him to be promoted if the physical disability was contracted in line of duty.

Free to admit that the questions involved are confused because of their technical character growing out of the distinctions between rank, .office, and pay, yet we are satisfied that the substantial right is with plaintiff. It is therefore ordered that the officer recover the sum of $1,878.25, that being the amount due as disclosed by the amended petition to this date, for which judgment will now be entered.