#### CHARLES F. STOKES v. THE UNITED STATES.

[No. 33933.

Decided March 3, 1919.]

*On the Proofs.*

*Navy, retired pay.*— The act of May 13, 1908, 35 Stat., 128, which provides “ that any officer of the Navy who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the retirement of such bureau chief,” was enacted for the benefit of bureau chiefs who are placed on the retired list while so serving, and does not apply to an officer who having served as such is retired after relinquishing said office..

*71
      *The Reporter's*statement of the case:

*Mr. George A. King*for the plaintiff. *King c& King*were on the briefs.

The obvious intent of the act of May 13, 1908, 35 Stat., 128, when read in its natural sense, is clear. An officer of the Navy serving as chief of a bureau holds the rank of rear admiral. The term of office is only four years. At the end of that term he is liable to revert to a lower rank.

The statute means that if an officer “ shall subsequently ”— that is, at any later time — “ be retired ” he shall be retired with the pay of the rank of a chief of bureau.

As the Surgeon General held the full actual rank of a rear admiral during his term of office, that is the rank upon which he would have retired if his retirement had taken place during his term of office as bureau chief.

The act of May 13, 1908, says that he shall have the same rank when he “ shall subsequently be retired.”

Attorney General Moody, in 1904, after the passage of the Navy personnel act, but before the passage of that of May 13, 1908, considered the status of the Paymaster General of the Navy when retired from that office. He said (25 Opns., 294, 295):

“I may say at the outset that the laws to which the opinion of March 4 specifically referred are section 1471, Eevised Statutes, and the Navy personnel act of 1899, and that the evident meaning of that opinion is that the legal title of the head of a staff bureau is carried on into his retirement when that step occurs or the right to be retired accrues while he is at the head of the staff bureau.

‡ $ $ $ $

“The retirement statutes (secs. 1443-1465, 1481, 1482, E. S.) and the Navy personnel act (30 Stat., 1004) indicate in general the principle that creditable retirement carries an advance in rank and pay (allowing for the difference between the active and inactive status), and that officers bear with them into retirement the honors and distinctions obtained in service. It seems certain that military usage universally recognizes that the highest legal rank which an officer attains marks the title accorded to him in practice for all purposes of courtesy and etiquette.”

*72He therefore held, p. 297:

“An officer serving as chief of a bureau, who is a rear admiral in fact, or is m the next lower grade (viz, captain), if he were retired during his incumbency of the bureau headship, would be retired with the rank, pay, and title of rear admiral/’

This construction agrees also with that placed by this court upon the law fixing the rank of the Judge Advocate General of the Navy as captain in the Navy or colonel in the Marine Corps, as the case might be, while holding that position. This was the case of Remey, 33 C. Cls., 218. Here the Secretary of the Treasury submitted to the court the following question:

“Whether a captain of the Marine Corps appointed Judge Advocate General of the Navy under the act approved June 8, 1880, 21 Stat. L.., 164, with the rank, pay, and allowance of a colonel, can be retired from that position as a colonel and be entitled to the retired pay of an officer of that rank on the retired list.”

The conclusion of the court is thus stated in language strictly applicable to the case at bar:

“ The plaintiff was ‘ appointed ’ for four years ‘ Judge Advocate General of the Navy, with the rank, pay, and allowance of a * * * colonel in the Marine Corps.’ When he was retired he was in law and fact a colonel in the Marine Corps. The further fact that his commission was limited as to time does not change the other fact that at the moment of retirement he was a colonel. Section 1254 Rev. Stat. provides that he must be retired ‘upon the actual rank held by them (him) at the date of retirement.’ Actual rank is the test, a test made evidently to exclude assimilated rank as a measure of pay. Remey’s rank as Judge Advocate General and colonel was not an assimilated rank but an actual rank, for the statute directs that the Judge Advocate General shall have the rank, the pay, and the allowances of a captain in the Navy or of a colonel in the Marine Corps, as the case may be. Then at the date of his retirement the actual rank (as distinguished from assimilated rank) held by Remey was that or a colonel in the Marine Corps; as such the President retired him, as he had a right to do.

We therefore answer the inquiry of the honorable the Secretary of the Treasury as follows:

*73A captain of the Marine Corps appointed a Judge Advocate General of the Navy under the act approved June 8, 1880, 21 Stat. L., 164, with the rank, pay, and allowance of a colonel, can be retired from'that position as a colonel, and be entitled to the retired pay of an officer of that rank on the retired list.”

These decisions of the Attorney General, in the case of 'a Paymaster General of the Navy, and of this court in the case of a Judge Advocate General of the Navy, were rendered prior to the date of the passage of the act of 1908.

It is reasonable to assume that Congress enacted the provision of 1908 with reference to these existing decisions. Those decisions were that a bureau chief retired while holding that position would be retired with the rank authorized by law for his office, to wit, rear admiral of the second nine in the Navy. The act of 1908 provided that if retired subsequently to holding that office he shall retire in the same grade in Avhich he would retire if he had gone direct from the headship of the bureau to the retired list.

The word “subsequently” ay as thus defined in *In re Bosenfeld,*20 Fed. Cases, Ño. 12,058, p. 1204:

“ Subsequently means at a later time, or afterwards; that is, at any time afterwards.”

A mere reading of the clause will show that it refers to any officer of the Navy noAV or thereafter serving as chief of bureau, and Avho shall be retired subsequently to such service. To construe the words otherwise is simply to strain the language to fit a preconceived theory.

The question involved is strictly one of pay. The office held by the claimant is that of medical director. What rank he holds and what pay he should receive on the retired list is a question of statutory construction. This was the vieAV of this court in the Navy case of Moser, 42 C. Cls., 86, and on more elaborate consideration in the Army case of Cloud, 43 C. Cls., 69.

This officer, having Once held the position of chief of the Bureau of Medicine and Surgery, Avitli the rank of rear admiral, is, when “ subsequently ” retired, entitled to be retired with the same rank and pay that he had as chief of *74bureau — that is, with the rank and retired pay of a rear admiral of the second nine.

*Mr. Richard P. Whiteley,*with whom was *Mr. Assistant Attorney General William, L.*Frierson, for the defendants.

Hay, Judge,

reviewing the facts found to be established, delivered the opinion of the coui't:

This is a suit brought by an officer of the Navy, who was at one time during his service on the active list of the Navy chief of a bureau in the Navy Department. He claims that by reason of such service he is entitled to be retired with the rank, pay, and allowances provided by law for a chief of bureau upon retirement.

The plaintiff was on January 10,1917, placed on the retired list for physical disability incident to the service under section 1453, Revised Statutes, after a total service on the active list of the Navy of 28 years. On February 7, 1910, he was appointed Chief of the Bureau of Medicine and Surgery with the rank of rear admiral for the term of four years, and held that office for the full term stated in his commission. At the end of his four years service as chief of bureau he resumed his regular position on the active list of the Navy, which was that of medical director, with the rank of captain, which rank and office he held, and had held for three years, when he was placed on the retired list. Since his retirement he has received the retired pay of a captain on the retired list of the Navy.

The plaintiff now seeks to recover the pay of the next higher rank, that of rear admiral of the lower nine, and he claims he is entitled to this pay by virtue of the provisions of the act of May 13, 1908, 35 Stat. 128, which act reads as follows:

> “ That any officer of the Navy who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay and allowances authorized by law for the retirement of such bureau chief.”

It is very earnestly insisted upon by the plaintiff that the proper construction of this statute is that if an officer who had once been a bureau chief retired “ subsequently ” to *75bolding tliat office be shall retire with the rank which he held while he was a bureau chief, and not with the rank which he held when he retired. We can not think that this is the proper construction of this statute. The word “ subsequently” clearly means, taken in connection with all the language of the act, that if a bureau chief retires after he becomes bureau chief and while so serving he may be retired with the rank which he is holding when he retires; for if Congress had intended otherwise it would have said so, and not confined the language in such a way as to mean only bureau chiefs while serving as such. After a bureau chief ceases to be such and returns to his rank on the active list he no longer has either the rank or the privileges pertaining to a bureau chief, and can not take advantage of a law enacted for the benefit of bureau chiefs. After all, the plaintiff is seeking relief as an ex-chief of bureau. There is nothing in the law which can apply to ex-chiefs of bureau. They are neither known to the law nor have they any standing in the service of the Navy.

Moreover it is not contended that the officer after he ceased to be a bureau chief, and returned to the active list before his retirement, could receive any more for his services than any other officer on the active list of his rank. Why, then, should an officer who had once been a bureau chief receive higher pay after retirement than the same officer could have while in active service?

If the contention of the plaintiff were to be adopted it might easily result in large numbers of officers being made bureau chiefs for limited periods of time, returned to the active list, serving there for years, and then being retired with the rank, pay, and allowances provided by law for bureau chiefs while serving as such.

It follows that the petition of the plaintiff must be dismissed.

Judge Downey, Judge BaeNey, Judge Booth, and Chief Justice Campbell concur.