#### ERNEST H. BARBER v. THE UNITED STATES.

[No. 32961.

Decided April 19, 1915.]

This is the claim of an assistant paymaster in the Navy for five years’ credit in computing his pay in accordance with the Navy personnel act of March 3, 1899, section 13, 30 *Stat. L.,*1007; that is, whether the plaintiff was appointed from “ civil' life,” and therefore entitled to credit for five years’ constructive service under said statute.”

I. Where at the time of retirement from the public service it is the intention and purpose of the party leaving the service to reenter the service, and the same party, as soon as he can do so thereafter enters the service, such last appointment is not “ from civil life,” as contemplated by section 13 of the • Navy personnel act of March 3, 1899, 30 *Stat. L.,*1007.

*The Reporter’s*statement of the case:

*Mr. William B. King*for the plaintiff. *King & King*were on the briefs.

The question in this case is, Was the claimant “ appointed to the Navy from civil life”? He entered the Naval Academy as a midshipman in 1908. During his course at the Naval Academy an examination by the permanent medical board disclosed that he had a defect of hearing, which was regarded as sufficient to disqualify him from continuing in the naval service. He was requested to tender his resignation, with an intimation that he would be dropped if he failed to do so. On application, however, he was allowed to continue his course at the academy and to graduate with *251his class. On the eve of graduation, however, he was again requested, July 10, Í912, to tender his resignation, and again with the threat of being dropped in case he failed to do so. He thereupon tendered his resignation, which was accepted by the Secretary of the Navy by letter of July 15, 1912.

On the following day, the 16th of July, he was, by letter addressed to him as a civilian, authorized to take an examination for appointment as assistant paymaster in the Navy.

The examination was evidently held in anticipation of an increase in the number of assistant paymasterships in the Navy, as he did not receive his appointment until August 28, 1912; and then was appointed to one of the additional offices created by the following provision of the naval appropriation act of August 22, 1912, 87 *8tat. L.,*328:

*“*The grades of the active list of the Pay Corps of the Navy are hereby increased by ten additional paymasters, in all eighty-six paymasters, and by twenty additional passed assistant and assistant paymasters, in all one hundred and sixteen passed assistant and assistant paymasters: *Provided,*That the total increase of the Pay Corps of the Navy shall not exceed twenty during the first fiscal year.”

His bond was approved September 4, 1912, and from that date only has he received pay.

The law allows an officer appointed to the Navy from civil life to receive the five years’ constructive service credit in addition to credit for all actual service, if any, previously rendered in the Army or Navy.

It was so decided in *Bush*v. *limited*States, 39 C. Cls., 565. No opinion .was rendered, but the decision is cited and accurately summarized in 13 Comp. Dec., 351, as follows:

“ The credit for five years of constructive service to which officers entering the Navy from civil life are entitled under the above provision is in addition to any actual service they may have rendered under a prior appointment.”

Again in *Guilmette*v. *United*States, 49 C. Cls., 188, the court said:

“ It is apparent that the credit of five years’ constructive service to which officers entering the Navy from civil life are entitled, under the above statutes, is in addition to any *252actual service they may have rendered under a prior appointment.”

The claimant was not in any way connected with the naval service in any capacity from July 15 to August 28, 1912, a period of about one month and a half. He received no pay in any capacity from the Government from July 15 to September 4, 1912.

His separation from the naval service of the United States was not of his own seeking. A slight defect of hearing was found to stand in the way of his receiving appointment in the line of the Navy, for which he had been educated, and which he desired to obtain in common with the rest of his class. His resignation had to be twice demanded before it was tendered. When tendered it was tendered without qualification, and he had the same right to apply for examination in the Pay Corps of the Navy as had any other young man of required age.

By Navy Regulations, article 4416, paragraph 1—

“ The pay of an officer of the Navy upon his original entry into the service, except when he is required to give an official bond, shall begin upon the date of his taking the oath of office if his acceptance of the appointment bears the same or a prior date, or upon the date of acceptance if the letter bears a later date. When he is required to give bond, his pay shall begin upon the date of the approval of his bond by the Secretary of the Navy, provided he has already accepted his appointment and taken the oath of office.”

If, on the other hand, his appointment to the office of assistant paymaster had been a promotion from the grade of midshipman, he would have been entitled to be paid as an assistant paymaster from the date stated in his commission, August 22, 1912, under the decisions of this court in the cases of *Williams*v. *United States,*47 C. Cls., 316; *Doyle*v. *United States,*47 C. Cls., 356; 48 C. Cls., 142, as well as by the express mandate of the act of March 4, 1913, 37 *Stat. L.,*892, as follows:

' “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.”

*253It is submitted that the construction placed upon this appointment at the time it was made is correct, and that the entry of the claimant into the service was by original appointment from civil life and not by promotion from the grade of midshipman.

It certainly could not be both. It can not be treated as an original appointment for the purpose of enabling the date from which claimant’s pay should begin to be postponed from the date stated in the commission to the date upon which his bond was approved, and then treated as a promotion from a lower grade for the purpose of enabling the Government to escape the five years’ constructive credit due an officer “ appointed to the Navy from civil life.”

Moreover, even if the service were in fact continuous, it is nevertheless required to be treated as a reentry into the service by the act of June 10, 1896, 26 Stat. L., 361, which is as follows:

“ That all officers who have been or may be appointed to any corps of the Navy or to the Marine Corps after service in a different corps of the Navy or Marine Corps shall have all the benefits of their previous service in the same manner as if said appointments were a reentry into the Navy or into the Marine Corps.”

By Navy Regulations, article 1002, paragraph 3, “midshipmen are, by law, officers in a qualified sense. They are classed as being of the line.”

A midshipman on graduation could by the law in force at the time regularly be commissioned only as an ensign. By act of March 7, 1912, 37 *Stat. L.,*73, entitled “An act authorizing that commission of ensign be given midshipmen upon graduation from the Naval Academy,” it was enacted “ that the course at the Naval Academy shall be four years, and midshipmen on graduation shall be commissioned ensigns.”

On the other hand, by article 1004, Navy Regulations, it is provided:

“ The officers of the staff are as follows: Medical officers, dental officers, pay officers, chaplains, professors of mathematics, naval constructors, .civil engineers.”

*254When, therefore, this former officer of the line was appointed a staff officer, the appointment is by the act of 1896 to be treated as a reentry into the service. This would be so under the terms of the act of 1896, even were he separated from the line one day and appointed tó the staff the next. Much more is it the case when he was out of office for a very real and substantial length of time.

In *Guilmette*v. *United,*States, 49 C. Cls., 188, the court said:

“ In the case at bar the findings disclose retirement from the public service in good faith and a second appointment from civil life with nothing in the conduct of his reentry into the service discrediting the good faith either of the appointing power or of this plaintiff.

“Plaintiff was seventeen days out of the public service, and as no fraudulent collusion is shown between plaintiff and Paymaster Wise to defeat the purposes of the law, our conclusion is that plaintiff was in fact and in law completely separated from the public service, and is, therefore, entitled, under his appointment, to be credited with five years’ service as appointed from private or civil life,” etc.

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

BarNey, Judge,

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

The question for decision in this case is the proper construction to be given to the following legislation contained in the act of March 3,1899:

> “All officers, including warrant officers, who have been or may be appointed to the Navy from civil life shall, on the date of appointment, be credited, for computing their pay, with five years’ service.”

The plaintiff entered the Naval Academy August 3, 1908, and remained there until nearly the graduating time of his class in 1912. On April 5 in the latter year he was officially informed that on account of deafness disclosed upon examination before a medical board his resignation would be accepted, otherwise he would be dropped from the rolls of the Naval Academy. After further consideration of the matter *255he was allowed to remain at the Naval Academy until shortly before the graduation of his class, as before stated; but on July 10, 1912, he was directed to tender his resignation, which he the next day did, and it was accepted July 15. On April 29, 1912, he applied for permission to take the examination for assistant paymaster in the Navy, and on June 10 of the same year asked for permission to take the examination for appointment as second lieutenant in the Army. He took his physical examination for appointment as assistant paymaster in the Navy July 22,1912, and his professional examination two days later, and was notified of his appointment, as such paymaster August 28, 1912. He took the oath of office and accepted such appointment September 3, 1912, and his official bond was approved September 4,1912.

In estimating his longevity pay the accounting officers of the Navy gave him credit for 3 years 11 months and 13 days for service as midshipman at the Naval Academy, but refused to give him credit for 5 years’ constructive service as having been “appointed to the Navy from civil life” under the statute above quoted, and we are now called upon to decide whether he was entitled to such credit.

The true interpretation to be given to the statute in question is not without its difficulties. The language of the statute appears to be plain. It says: “ All officers * * * who have been or may be appointed from civil life, shall on the date of appointment, be credited, for computing their pay, with five years’ service.” Notwithstanding the apparent simplicity of the language of this statute it needs no discussion to make it evident that the phrase “from civil life ” needs some reasonable construction. If taken literally any or all of the officers of the Navy might resign one day and enter the service the next and take advantage of the statute to increase their longevity pay. This construction of the law would lead to such an absurdity and injustice as to shock the moral sense of everyone. In fact, the Supreme Court decided that' this construction of the law would not be allowed. *United States*v. Alger, 151 U. S., 365.

The object of the statute was apparent to everyone. It was to induce men then in civil life, most if not all of whom *256had never been in the service, to enter it without the disadvantage occasioned by the allowance to graduates of the Naval Academy of their time spent there as service in the Navy. It was not intended either to induce or allow men to get out of the service for a short time and then take advantage of it. In the *Guilmette*case, 49 C. Cls., 188, this court held that where an officer of the Navy in good faith had resigned from the service and reentered after 17 days, he would be allowed the advantages of this statute. But the circumstances of that case were peculiar. Not only was the officer’s resignation from the service in evident good faith with the intention of entering civil life, but after resigning he had twice been tendered positions in the Navy and had refused them, before accepting the office under which he was allowed the benefit of the statute. We believe that we went to the full limit of liberality in the construction of this statute in that case, and are not inclined to go any further. We do not wish to be understood as holding that a naval officer may not in good faith resign from the service and reenter again and take advantage of this statute, but we believe such separation from the service should be so substantial as to bring the case within the spirit of the law.

The circumstances in this case we think are radically different. The plaintiff did not resign from the service voluntarily ; he never intended to enter civil life if he could remain in the service; before resigning he had made application to enter two other branches of the service; he secured influence which induced the authorities to allow him to remain at the Naval Academy more than a year after it was known that he would not be allowed to graduate. All of which was done for the evident purpose of remaining in the service if possible.

Taking all of the facts and circumstances of this case into consideration,- we do not think the plaintiff reentered the service after his resignation “from civil life” within either the spirit or the letter of the statute. In coming to this conclusion we take into consideration, as we think we have a right to, the absurdity and rank injustice as the re-*257suit of any other. He is now allowed practically the same credit for service as his classmates at the Naval Academy, and to decide that he entered the service the second time from “civil life” would put him five years ahead of them. Thus a premium would be allowed for a physical defect to one attending the Naval Academy, and who during all the time was making every effort to remain in the service. We think such consideration is fully warranted by the decision of the Supreme Court in the case of *Holy Trinity Church*v. *United States,*143 U. S., 457.

It is not without significance that the same Congress enacted a law providing that service while at either the Naval or Military Academies should not be counted in computing length of service, and also repealed the statute under consideration in this suit. 37 *Stat. L.,*594, 891. Thus it appears that one was considered as cocomitant with the other.

It may not be out of place here to mention the case of Westlalie, which was decided at the same time with the instant case and wherein the petition was dismissed without an opinion. Both depend upon the same statute, and the *West-lake*case is cited as illustrating the view taken of that statute in this opinion. Westlake entered the Naval service as an enlisted man December 19,1898, and served until October 6, 1900, and again from April 18 to August 16, 1902, when he was made paymaster’s clerk. This appointment was revoked in course January 10, 1903, and on May 26, 1903, he was again appointed paymaster’s clerk. March 22, 1904, while still serving under said latter appointment, he was officially authorized to stand examination for appointment as assistant paymaster. April 1, 1903, he tendered his resignation from the service, to take effect April 20, assigning as a reason a wish to visit his family in the event that he should be successful in his examination and subsequently be appointed assistant paymaster, and to go out of the service permanently in case of failure. The Navy Department replied under date of April 8, and instead of accepting his resignation at once ordered him to continue on duty on the U. S. S. *Solace*until Paymaster Balthis should be detached from duty on that vessel on or about May 10, 1904, and *258then proceed to his home, and accepted his resignation to take effect on his arrival there. In obedience to an order subsequently received he proceeded to his home May 1 instead of May 10, as originally directed, and arrived there May 11, and there found awaiting him an appointment as assistant paymaster together with a commission as such. He accepted the appointment the nest day, and on May 13 his bond was approved.

The only difference between that case and the one under consideration is the fact that Westlake remained out of the service a shorter time, and his *appointment*antedated the time he left the service.

Without consideration of the question whether the word “ appointment ” in the statute should be literally construed or construed to mean entry into the service, we should not hesitate in deciding that this was not entry into the service from “ civil life,” the same as we have decided in this case, and for the same reason. Application had been made to continue in the service before resigning, and entering into civil life was to depend upon success or failure in examination.

It follows from the foregoing that the petition must be dismissed.

All concur.