#### HILARY WILLIAMS v. THE UNITED STATES.

[No. 32983.

Decided May 24, 1915.]

*On the Proofs.*

On February 6, 1909, an act to correct tbe naval record of . Lieut. Hilary Williams was approved, and under said act be was duly granted a commission giving bim tbe rank of lieutenant from January 1, 1904. 35 *Stat. L.,*1436. He bas not, however, received tbe pay of a lieutenant from January 1 to December 31, 1904, and brings this suit to recover the said pay of lieutenant for that period, under said act and tbe act of March 4, 1913. 37 *Btat.*L., 892.

I. Where Congress removes all tbe difficulties encountered in pursuit of advancement in rank and grade according to existing law, and fixed without qualification an officer’s status as that of a lieutenant in tbe Navy to take rank from January 1,1904, be is entitled to tbe pay provided by law for that rank from that date.

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      *The Reporter's*statement of the case:

*Mr. Geo. A. King*for the plaintiff. *King <& King*were on the brief.

The plaintiff, a lieutenant (junior grade), in the Navy, was entitled to be promoted to the grade of lieutenant, January 1, 1904. He, however, failed in his examination for promotion, and was thereupon suspended from promotion for one year. At the expiration thereof he successfully passed his examination and was commissioned a lieutenant in the Navy from January 1, 1905.

Upon the circumstances being represented to Congress an act was passed for his relief. It was stated in the report of the committee, *House Report No. 1897,*60th Congress, 1st sess.: “ The evidence before the committee shows that for 17 months immediately preceding his examination the lieutenant was on recruiting duty which prevented adequate preparation for his examination.” The full text of the act is as follows, 35 *St at. L.,*1436:

“ An act to correct the naval record of Lieut. Hilary Williams, United States Navy.

*“Be it*enacted, etc., That the Secretary of the Navy be, and he is hereby, authorized and directed to amend the naval record of Lieut. Hilary Williams, United States Navy, by placing his name on the official Navy' Register of the Navy Department next after that of Lieut. Charles T. Owens, United States Navy, and to receive rank of lieutenant, United States Navy, from January 1,1904.

“Approved, February 6, 1909.”

On March 22, 1909, he was nominated “ to be a lieutenant in the Navy from the first day of January, 1904, to take rank next after Lieut. Charles T. Owens, United States Navy, to correct the date from which he takes rank in accordance with the provisions of the act of Congress approved February 6, 1909; ” and commissioned April 8, 1909.

The act of March 4,1913, 37 *Stat. L.,*892, provides:

“That all officers of the Navy who, since the 3d day of March, 1899, have been advanced or may hereafter be advanced in grade or rank pursuant to law shall be allowed the pay and. allowances of the higher grade or rank from the dates stated in their commissions.”

*322A claim under each of these acts having been refused by the accounting officers, the present suit was instituted to recover the difference of pay, amounting to $600, between a lieutenant, junior grade, and a lieutenant.

Either one of these acts should be conclusive.

This court has had occasion to consider several cases of relief granted by special acts similar to that in question in this case.

In *GolUns*v. *United*States, 14 C. Cls., 568, 15 C. Cls., 22 it was held that where Congress passes an act for the appointment of an officer as of a certain date the intention is, in the absence of anything to the contrary, that he is to receive pay from the time from which he takes rank.

Still closer to the present case is *MeAlfine*v. *United States,*27 C. Cls., 491, where the act under which the claimant was appointed provided that the commissions of himself and others similarly situated “ be dated from July 1, 1883.” The opinion by Chief Justice Richardson is so plain and pointed and every word so applicable to the present case that it is here quoted in full:

“ Upon the foregoing findings of fact the court determines, as conclusions of law, that the claimant, having been appointed an assistant engineer in the Navy by the President, with the advice and consent of the Senate, to date from July 1, 1883, in accordance with a special act of Congress, is entitled to the pay of an assistant engineer from July 1, 1883, when Congress authorized his commission to bear date, upon the authority of *United Slates*v. Vinton, Fed. Case 16,624; 2 Sumner, 299; *Oollins*v. *United*States, 15 C. Cls., 22; and *Burehard*v. *United States,*125 U. S. It., 179, and for the reason that when Congress authorizes the dating back of a commission it intends to give the officer pay from such date, unless otherwise expressed as in the act of 1889, March 2, ch. 399, 25 *Stat. L.,*879.

“ The claimant is entitled to recover the difference between the pay he was entitled to and that which he received, to wit, the sum of $3,454.27,” 27 C. Cls., 493.

In the case here cited, *United States*v. *Vinton,*Fed. case 16624, Justice Story said:

“It appears to me that the commission does not take effect solely from and after that date but in this instance, retroactively, it has effect from and relation to the 30th of Sep*323tember, 1829. I hold this to be the natural, nay, the necessary construction of the words of the commission. Unless this construction is given to the instrument we in fact strike out of it the words ‘ to take rank from the 30th of September, 1829,’ a liberty which no court of justice can be justified in assuming. If the words, then, are to have any meaning, they confer on Capt. Vinton the brevet rank of captain from that time. If they confer on him that rank from that time, then they confer on him also the pay and emoluments of that rank when he is on duty and has a command according to that rank from and after that time. It seems to me that the pay and emoluments are necessarily attached to the rank and that if the rank existed from September, 1829, and the duty and command also existed, then the pay and emoluments follower of course. It is admitted that in equity he ought to receive the pay and emoluments; and I think he is equally so entitled at law upon the plain intent of the commission and of the act of Congress regulating the pay and emoulments.”

In *United States*v. *Bur chard,*125 U. S., 176, 180, the Supreme Court held that the President, with the advice and consent of the Senate, might make a retroactive transfer of an officer from the furlough to the retired pay list. Much more may he under express authority of a special act commission an officer to take effect from the date named in the statute with the necessary consequence of that commission, the right to pay from the date the officer takes rank in accordance therewith.

The Supreme Court has held that Congress has power to grant a salary retroactively to any officer of the United States. *James*v. *United*States, 202 U. S., 401. This power has been repeatedly exercised in the case of Army and Navy officers. *Irwin*v. *United*States, 38 C. Cls., 87, 100.

*Mr. B. P. 'Whiteley,*with whom was *Mr. Assistant Attorney General Huston Thompson,*for the defendants.

The special act in express and specific terms provides for the amendment of claimant’s naval record by—

“placing his name on the official Navy Register of the Navy Department next after that of Lieut. Charles T. Owens, United States Navy, and to receive rank of lieutenant, United States Navy, from January 1, 1904.”

*324It is tbe contention of defendant that the language used in this private act means just what it says, namely, rank, and not rank and pay. It could easily have been provided, had such been the intention of the lawmakers, that claimant should receive the rank *and pay*of lieutenant from January 1, 1904.

The cases cited by claimant in his brief in support of his contention that Congress intended to confer pay as well as rank from January 1, 1904, are all cases involving the appointment to office as of a certain date, wherein it was held that such appointments carried with them the pay of the office as well as the rank from the dates when the said officers took rank. In the present case the officer had by his own failure brought himself within the punitive provisions of section 1505 of the *Revised, Statutes.*He thereby lost advancement in rank and pay for one year. Because he had been off on recruiting duty and because he had lost more numbers than was considered equitable his rank was-restored to him, but there is nothing, either in the language used or the circumstances of’the case, to show that there was any intent to bestow upon him the pay that he had lost by reason of his failure. It is urged, therefore, that this case, instead of being within that class where the rank includes the pay, as in the Vinton case decided by Mr. Justice Story, is one where the principle of *expressio unius est alterius exdusio*governs, and the express grant of higher rank from January 1, 1904, without mention of pay, excludes the pay of said higher rank.

The act of March 4, 1913, applies only to officers due for promotion or those performing the duties of their office before confirmation, and not to those suspended from promotion through their own fault. ..

The act of March 4,1913, provides as follows:

“ That all officers of the Navy who since the third day of March, eighteen hundred and ninety-nine, have been advanced or may hereafter be advanced in grade or rank pursuant to law shall be allowed the pay and allowances of the higher grade or rank from the dates stated in their commissions.” 31 *Stat.*£., 891, 892.

*325An examination of the reports of the naval committees of the House and Senate will show just what was intended to be done by this legislation, and it is submitted this is a case in which it is proper to invoke the following rule recently stated by the Supreme Court:

“While it is generally true that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body, *United States*v. *Freight*Association, 166 TJ. S., 290, 318, yet it is also true that we have examined the reports of the committees of either body with a view of determining the scope of statutes passed on the strength of such reports.” *Holy Trinity Church*v. *United*States, 143 TJ. S., 457, 464; *Bmns*v. *United*States, 194 TJ. S., 486, 495.

See *United States*v. *Freight*Association, 166 TJ. S., p. 320, where the Supreme Court said:

“ Our attention is also called to one of the rules for the construction of statutes which has been approved by this court; that while it is the duty of courts to ascertain the meaning of the legislature from the words used in the statute and the subject matter to which it relates there is an equal duty to restrict the meaning of general words whenever it is found necessary to do so in order to carry out the legislative intent.” *Brewer*v. Blougher, 14 Pet., 178,198; *Petri*v. *Commercial Banh of*Chicago, 142 TJ. S., 644, 650; *McKee*v. *United*States, 164 TJ. S., 287.

Atkinson, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

The plaintiff at the time this case arose, viz, January, 1904, was a lieutenant (junior grade) of more than 10 years’ service in the Navy. A vacancy existed in the grade of lieutenant on said date and the claimant was eligible to advancement and would have been advanced except for his failure to pass the professional examination required by law. By the terms of section 1505, *Revised*Statutes,' a failure to pass the required examination for promotion resulted in the applicant’s suspension for promotion for a period of one year with a corresponding loss of numbers. This section reads as follows:

> *326“Any officer of .the Navy on the active list below the grade of commander who, upon examination for promotion, is not found professionally qualified, shall be suspended from promotion for one year, with corresponding loss of date, when he shall be reexamined, and in case of his failure upon such reexamination he shall be dropped from the service.”

At the expiration of the term of his suspension he successfully passed the examination and was commissioned a lieutenant in January, 1905, and received pay as such from this date forward. February 6,1909, Congress passed the special act found in 35 Statutes, 1436, which reads:

> *“Be it*enacted, etc., That the Secretary of the Navy be, and he is hereby, authorized and directed to amend the naval record of Lieutenant Hilary Williams, United States Navy, by placing his name on the official Navy Register of the Navy Department next after that of Lieutenant Charles T. Owens, United States Navy, and to receive rank of lieutenant, United States Navy, from January first, nineteen hundred and four. Approved, February 6, 1909.”

Thereafter plaintiff was nominated by the President as a lieutenant in the Navy in accord with the provisions of the special act above cited, his commission giving him the said rank and grade from January 1, 1904. Plaintiff preferred his claim for the pay of a lieutenant in the Navy from January 1, 1904, to January 1, 1905, and the accounting officer disallowed it on the ground that the special act, *supra,*was not to be construed as a retroactive advancement in office of the officer named.

The special act is free from ambiguity, and in the light of the circumstances attending its passage can have no other than a retroactive effect in so far as fixing the officer’s status as of a certain date is concerned. We must take the law as we find it and can not import into it a contrary intention from its express provisions because, perchance, there may be certain surroundings which might weigh against the equities of the case. The Congress by the special act removed all the difficulties encountered by the plaintiff in pursuit of an advancement in rank and grade according to existing law, remitted the prohibitory provisions of section 1505, *Revised*
      *327
      *Statutes,*and fixed without qualification the officer’s status as that of a lieutenant in the Navy to take rank from January 1, 1904. This is the plain, unequivocal language of the statute, limited in no way by conditions or qualifications as to pay or allowances. To ascertain the pay legally due the plaintiff, recourse must be had to the pay statutes of the Navy, as it is not to be found in the special act, and the pay laws of the Navy specifically fix the salary of a lieutenant at $2,400 per annum, and this sum should have been paid the plaintiff in accordance with his legal status as an officer of the Navy.

Any other construction of this statute would lead to an absurd result, for the remedy intended by the special legislation would be devoid of substance if the officer was alone to be permitted to merely antedate an honorable rank he already held and denied the salary of his office. There would indeed be little use in waiving the requirements of existing law by special legislation evidently enacted because of equitable considerations and bear the barren results of advanced rank with lesser-grade pay. If the Congress had intended any such result the act would have so provided.

In the case of *McAlpine*v. *United*States, 27 C. Cls., 491, it was decided that in accordance with the special act of Congress promoting him, plaintiff was entitled to the pay of an assistant engineer from July 1, 1883, when Congress authorized his commission to bear date, for the reason that when Congress authorizes the dating back of a commission it intends to give the officer pay from such date, unless otherwise expressed. *United States*v. Vinton, Fed. case, 16624; 2 Sumner, 299; *Burchard*v. *United States,*125 U. S., 179; *Smith*v. *United States,*50 C. Cls., 244.

The *McAlpine ease, supra,*gathered together the authorities upon a case similar to the one in suit and we here cite it with approval.

It is, therefore, the judgment of the court that the plaintiff is entitled to recover a judgment against the United States for the sum of five hundred and thirty-seven. dollars and seventeen cents ($537.17), which is accordingly ordered.