#### RICHARD B. SMITH v. THE UNITED STATES.

[No. 32795.

Decided April 19, 1915.]

*On the Proofs.*

The act of March 3, 1909, 35 *St at. L.,*771, created the commissioned grade of chief machinist and on May 17, 1909, plaintiff, a warrant machinist, was examined for promotion - to that grade, but failed professionally; and in accordance with section 1505 of the *Revised Statutes*he was suspended for one year. On June 10, 1910, he was reexamined and passed. On June 24, 1910, he was, after being nominated to and confirmed by the Senate, appointed and commissioned chief machinist to rank as such from March 3, 1910. Neither his original nor his reexamination was delayed through any fault on his part and this suit was brought to recover the difference between the pay of a machinist and that of a chief machinist and commutation of quarters, heat, and light during the above-mentioned periods.

I. Where a later statute is entirely inconsistent with a former statute the later statute repeals the former to the extent of such inconsistency.

II. Where two provisions of law are so absolutely inconsistent that they can not both stand and be construed *in pari materia*the the one last enacted must stand as the law.

*.The Reporter's*statement of the case:

*Mr. Wm. B. King*for the plaintiff. *King c& King*were on the brief.

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

The claimant, then a warrant officer in the Navy of the grade of machinist, with more than six years’ service in said grade, became entitled to promotion to chief machinist upon the enactment of the act of March 3, 1909. 35 *Stat. L., 771.*He was examined, the delay being occasioned through no fault of his own, on May 17, 1909, and failed professionally; thereupon, under section 1505, *Revised Statutes,*he became suspended from promotion for one year, with corresponding loss of date.

Section 1505, *Revised Statutes,*provides that:

“Any officer of the Navy on the active list below the grade of commander, who, upon examination for promotion, is *245not 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.”

It is also clear that the period of one year of suspension from promotion begins to run from the date of examination, and not from the date when the officer becomes entitled to take his examination for promotion. *Austin*v. *United States,*20 C. CIs., 269.

With reference to delayed examinations, section 1562, Revised Statutes, provides:

“ If an officer of a class subject to examination before promotion shall be absent on duty, and by reason of such absence, or of other cause not involving fault on his part, shall not be examined at the time required by law or regulation, and shall afterwards be examined and found qualified, the increased rate of pay to which his promotion would entitle him shall commence from the date when he would have been entitled to it had he been examined and found qualified at the time so required by law or regulation; and this rule shall apply to any cases of this description which may have heretofore occurred. And in every such case the period of service of the party, in the grade to which he was promoted, shall, in reference to the rate of his pay, be considered to have commenced from the date when he was so qualified to take rank.”

Under this section, had claimant passed his first examination, May 17,1909, he would undoubtedly have been entitled to the pay of the advanced grade of chief machinist from the date he became entitled to take his examination, March 3, 1909. *Boyle*v. *United States,*47 C. CIs., 356; *Doyle*v. *United; States,*48 C. CIs., 142.

Failure to pass, however, suspended him from promotion for one year from May 17, 1909. *Austin*v. *United States,*20 C. CIs., 269.

After the expiration of the year of suspension it would appear to counsel for defendant that section 1562 again becomes operative, as claimant is an officer of a class subject to examination for promotion, and if absent on duty—

and by reason of such absence, or of other cause not involving fault on his part, shall not be examined at the time required by law or regulation, and shall afterwards be ex*246amined and found qualified, the increased rate of pay to which his promotion would entitle him shall commence from the date when he would have been entitled to it had he been examined and found qualified at the time so required by law or regulation.

This brings us to consider the other contention of claimant, namely, that under the act of March 4, 1918, he is entitled to recover the pay of his advanced grade from the date he took rank, as stated in his commission, *i. e.,*March 8, 1910.

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 pur- . suant to law, shall be allowed the pay and allowances of the higher grade or rank from the dates stated in their commissions.” 37 *Stat. L.,*891, 892.

It is stated by counsel for claimant that the principal object of the passage of this act was to prevent the endless contests by the accounting officers over the dates stated in the commissions of naval officers, and that it renders it sufficient in eyery case for an officer to point to his commission as conclusive evidence of the date from which he is entitled to take rank. An examination of the reports of the naval committees will show that Congress had no such sweeping intent in the framing and passing of this legislation, and it is submitted this is a case where it is proper to invoke the following rule recently laid down 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 U. 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.” *Roly Trinity Ghurch*v. *United*States, 143 TJ. S., 457, 464; *Binns*v. *United*States, 194 U. S., 486, 495.

It is manifest that the act of March 4, 1913, and section 1505, *Revised*Statutes, must be construed together so as to *247give effect to both statutes, and the general provisions of the act of March 4, 1913, are limited by the specific provisions of section 1505, *Revised Statutes.*

“It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior express statute, will ordinarily not affect the special provisions of such earlier statute.” *Rodgers*v. *United*States, 185 U. S., 183.

The provisions of the act of March 4, 1913, are further qualified by section 1496, *Revised*Statutes, which provides:

“No line officer below the grade of commodore, and no officer not of the line, shall be promoted to a higher grade on the active list of the Navy until his mental, moral, and professional fitness to perform all his duties at sea have been established to the satisfaction of a board of examining officers appointed by the President.”

This section restricts the promotion of officers to those who have passed their mental, moral, and professional examinations, which examinations claimant was not qualified to take until May 17, 1910.

BaRNev, Judge,

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

The plaintiff, a warrant officer in the Navy of the grade of machinist, with more than six years’ service in said grade, became entitled to be promoted to chief machinist upon the passage of the act of March 3, 1909, 35 *Stat. L.,*771. He was examined for such promotion on May 17, 1909, and failed professionally. The delay in his examination was through no fault of his own. Thereupon he became suspended from promotion for one year, with corresponding loss of date under section 1505, *Revised*Statutes, which is as follows:

> “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 óf date, when he shall be reexamined, and in case of his failure upon such reexamination he shall be dropped from the service.”

*248Under this statute he became entitled to be reexamined for promotion May 17, 1910, and was examined for such promotion June 8, 1910, and passed. The delay in his second examination was also through no fault of his own. He was thereupon commissioned as chief machinist with rank, as stated in his commission, from March 3, 1910. He has been paid the salary and allowances of a chief machinist from June 8, 1910, the date of his reexamination, but has only received the pay and allowances of a machinist from March 3,1910, to June 8,1910. He now claims that he should have received the pay and allowances of a chief machinist from March 3, 1910, that being the date of such rank stated in his commission; and this suit is brought for the difference so disallowed him.

The plaintiff’s claim is based upon the following provision of the act of March 4, 1913, 37 *Stat. L.,*892, which is as follows:

> “That all officers of the Navy who, since the 3d day 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.”

This statute would seem to be too plain for construction, but it is contended by the defendants that it should be construed in connection with section 1505, above quoted, and section 1562, Revised Statutes, and that when so construed the plaintiff would only receive the pay of the higher rank from May 17, 1910, the date when he became entitled to reexamination. Section 1562, Revised Statutes, is as follows:

> “ If an officer of a class subject to examination before promotion shall be absent on duty, and by reason of such absence, or of other cause not involving fault on his part, shall not be examined at the time required by law or regulation, and shall afterwards be examined and found qualified, the increased rate of pay to which his promotion would entitle him shall commence from the date when he would have been entitled to it had he been examined and found qualified at the time so required by law or regulation; and this rule shall apply to any cases of this description which may have heretofore occurred. And in every such case the period of service of the party, in the grade to which he was promoted, *249shall, in reference to the rate of his pay, be considered to have commenced from the date when he was so qualified to take rank.”

This contention is based upon the explicit provision of both of the above statutes, as applied to the plaintiff’s case, that upon failure to pass examination the officer so examined “shall be suspended from promotion for one year, with corresponding loss of date, when he shall be reexamined,” etc. We fail to see the force of this contention. The act of March 4, 1913, supra, in language which can not be misunderstood provides that in such cases such officers “shall be allowed the pay and allowances of the higher grade or rank *from the dates stated in their*commissions.” It is unnecessary to cite authorities to the proposition that a later statute entirely inconsistent with a former has the effect of repealing the latter to the extent of such inconsistency. The case stands like this: The sections of the Revised Statutes quoted provide that in cases like that of the plaintiff the officer shall be suspended from promotion for one year, which for the purposes of this case it may be conceded means one year from the date when he was entitled to take his examination; while the act of March 4, 1913, provides that he shall take rank and be paid from the date stated in his commission. These provisions of the law are so absolutely inconsistent that they can not both stand and be construed *in pari mate-ria,*and the one last enacted must stand as the law.

If the latter act means anything it was intended by Congress thereby to confer upon the appointing power the right to name the date from which an officer advanced in grade or rank should take such grade or rank, and to receive pay and allowances accordingly. This is the plain language of the law, and we see no reason for going afield to give it any strained construction even if we were allowed that privilege.

In the instant case the construction given this statute certainly works no injustice and is absolutely consistent with fair dealing. The plaintiff was entitled to his first examination for promotion March 3, 1909, and, through no fault of his own, such examination was delayed until May 17, 1909. If he had passed upon such examination his new rank *250would doubtless have been stated from March 3, 1909. This year of suspension from promotion under the sections of the Revised Statutes quoted was thus extended without his fault, and it was but doing him justice to date his rank one year ahead of the time when he was entitled to his first .examination.

It follows from the foregoing that the plaintiff is entitled to judgment in the sum of $135.81.

All concur.