#### JACQUES De L. LAFITTE v. THE UNITED STATES.

[No. 29059.

Decided February 3, 1908.]

*On the Proofs.*

A quartermaster in the Army is assigned to duty on transports plying between San Francisco and Manila. The most of his time is spent upon the high seas.

I.The *Act 30th Jme, 1902*( 32 Stat. L., 507, 512), provides that the pay proper of all officers “ *serving beyond the limits of the States comprising the Union, and the Territories of the United States contiguous thereto,"*shall be increased 10 per cent, “ *and the time of such service shall be counted from the date of departure from said States to the date of return thereto.”*

II.A proviso to an appropriation which will permanently affect the pay of officers irrespective of the appropriation to which it is attached is not properly a proviso and has simply the meaning of the conjunction “ *and.”*In construing such an appropriation it is the duty of the court to give attention to all the language of the paragraph.

III. The intent of the statute is that only such commissioned officers and enlisted men are to receive the extra pay as are actually stationed either in some foreign country or in some of our outlying possessions.

IV. The clause of the statute which says such service shall be counted from the date of departure to the date of return is useless if service on the high seas is to be considered service beyond said States. The ocean is the highway of nations, and can not be denominated a foreign place.

*The*Reporters’ statement of the case:

The facts of the case will be found set forth in the opinion of the court.

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

The case is plainly within the terms of the act of June 30, 1902. The service was all performed beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto. It is true that it was largely performed on army transports. But the very terms *167of the act allow to army officers compensation for service which is in part performed at sea in all cases. The express provision of the law is that “ the time of such service shall be counted from the date of departure from said States to the date of return thereto.” It seems difficult, therefore, to appreciate upon what reasoning it can be held that a distinction can be drawn between the right of an officer to this 10 per cent increase where the greater part of the service is performed upon land and the smaller part upon sea and cases like the present, where the larger" portion of the service is performed at sea and the smaller part upon shore.

There is nothing in the decision of the Supreme Court in the case of *United States*v. *Thomas (195*U. S., 418) which lends the least color to a construction of this act which would deprive officers of the army of this increase of pay during the time they are serving as quartermasters of army transports. True, the court held that officers of the navy were not entitled under the terms of the navy personnel act to this 10 per cent increase when serving on their vessels at sea. This, however, was based distinctly upon the ground that the 10 per cent increase was intended to apply to exceptional service, while the service of an officer of the navy on his vessel was only his normal and regular duty. The right of an army officer to the 10 per cent increase while on the voyage was distinctly affirmed.

This language recognizes that voyages going to and returning from the Philippine Islands are, on the part of army officers, exceptional and “ attended by peculiar hardships.” Army officers in all cases receive this increase while merely on the seas as travelers. Surely their claim is not less meritorious when the officer is not a mere traveler but has duty to perform on the seas as well as on shore in the capacity of quartermaster of a transport. A contrary construction would give the army officer more pay while merely crossing the ocean as a traveler than when performing active duty on the vessel.

It was not until May 18,1905, that the Comptroller for the first time distinctly decided that an officer of the army serving on an army transport was not entitled to the 10 per cent *168increase of pay provided for by the act of June 30, 1902 (31 Stat. L., 512). The injustice of a change of construction at that late date is manifest. Familiar principles repeatedly recognized by the courts forbid reversals of rulings which have thus been for years acted upon. *{United States*v. Moore, 95 U. S., 760; *Alabama Great Southern Rail/road Go.*v. *United*States, 25 C. Cls., 30, 45, 46, affirmed 142 U. S., 615, 621; *United States*v. FinneTl, 185 U. S., 236, 244.)

All these decisions are clear against sustaining any such change of ruling after officers have been paid upon a previous construction of the law, even were the first construction questionable.

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

Barney, J.,

delivered the opinion of the court:

The claimant was a captain and quartermaster in the United States Army, and as such, on the 21st day of April, 1902, was assigned to duty on transports plying between San Francisco and Manila, in the Philippine Islands. He served under such assignment on two different transports until February 11, 1905, the most of said time being spent upon the high seas in passing between the ports named.

This action is brought to recover 10 per cent increase of his regular pay as such captain for the time served on such transports, under the claim that such increase is due him by the provisions of the act of June 30, 1902 (32 Stat. L., 507, 512). The law under which this claim is based is a provision of the army appropriation act for the fiscal year ending June 30, 1903, and the whole paragraph relating to the subject is as follows:

> “ For additional ten per centum increase on pay of officers serving at foreign stations, five hundred thousand dollars: *Provided,*That hereafter the pay proper of all officers and enlisted men serving beyond the limits of the States comprising the Union, and the Territories of the United States contiguous thereto, shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for times of peace, and the time of such service shall'be counted from the date of departure from said States to the date of return thereto.”

*169The decision of this case depends, therefore, upon the construction to be given to the foregoing statute, i. e., whether service on a transport plying between San Francisco and Manila is “ service beyond the limits of the States,” etc., within the meaning of the law.

It is doubtless true, as contended by the claimant, that the proviso in the statute quoted is not a “ proviso ” at all within the strict meaning of that word, and is only the addition of a permanent law to a temporary appropriation, which could as well have been connected by the conjunction “ and.” This, however, is only a question of choice of words, and whatever our views upon that subject may be it is certain that the permanent law in question is directly connected with this appropriation and thus made a part of it; and for that reason xve think it is the duty of the court, under familiar rules of interpretation, in construing this statute to give attention to all the language of the paragraph.

The appropriation is for the pay of officers “ serving at foreign stations.” Literally and technically interpreted this was an appropriation only for the pay of such officers as might be serving in foreign countries entirely beyond the jurisdiction of the United States, and would not include such as might be serving in Alaska or one of our insular possessions. We feel sure, however, that this appropriation was never so construed, and it seemed to be conceded by both parties, upon the argument of the case, that the words “ foreign stations ” had particular reference to our outlying territorial possessions. In fact, it may be said that the proviso defines the words used in the appropriating clause as having such meaning — that is to say, that “ all commissioned officers and enlisted men serving beyond the limits of the States comprising the Union,” etc., are to be considered as serving at “ foreign stations; ” and doubtless the disbursing officers of the army so construed this appropriation.

Thus, taking the whole paragraph together, only such officers are to receive the extra pay as are actually *stationed*either in some foreign countries or in some of our outlying possessions.

This view is strengthened by the last clause of the section which says, “ the time of such service shall be counted from *170the date of departure from said States to the date of return thereto,” and which is useless if service on the high seas is to be considered service beyond said States.

In the case of *The Adventure, 1*Federal Cases, 202, 204, the court in construing the meaning of the words “ foreign place” in a Federal statute said: “The broad navigable ocean, which is emphatically and truly termed the highway of nations, can not, in strict propriety of language, be denominated ‘ a foreign place.’ The words are said to be used to denote any place not belonging to the United States. But the sea is the common property of all nations. It belongs equally to all. None can appropriate it exclusively to themselves; nor is it foreign to any.”

A similar construction of the statute under consideration would deny recovery to the claimant either under the appropriation clause or the proviso of the same.

The petition is dismissed and judgment ordered for the defendants.