#### JOSEPH R. JEFFERIS v. THE UNITED STATES.

[No. 33992.

Decided October 27, 1919.]

*On the Proofs.*

*Ranh and ‘pay; veterinarian, Army.*— Section 16 of the act of June 3, 1916, 39 Stat., 170, does not provide for tbe promotion of any person then in the Army but merely renders certain veterinarians in the service eligible for appointment to a commissioned rank; a person appointed pursuant to its *178provisions was originally appointed and not promoted and could not have the rank and pay from the date of the-approval of said act.

*The Reporter's*statement of the case:

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

This claim arises out of the delay of the War Department in putting into effect the provisions of section 16 of the' national defense act. of June 8, 1916, 89 Stat., 176, giving veterinarians rank as commissioned officers in the Army. For this delay the officers for whom Congress intended the benefit should not be thereby prejudiced.

The portion of section 16 of the act of June 3, 1916, under which the claimant was commissioned provides that those veterinarians “ who at the date of the approval of this act ¡di all have had over fifteen years’ governmental service may be appointed in the Veterinary Corps as veterinarians with the rank, pay, and allowances of captain.”

The claimant being on foreign service did not get examined until November 6, 1916, at which time he readily passed all the examinations prescribed. Even then it was not until March 22, 1917, that his commission was *issued*to him, and only on April 4, 1917, did he begin to be paid as. a captain.

His commission is in the regular form of that of any other commissioned officer of the Army and was issued with the advice and consent of the Senate and provides that he “ rank as such from the third day of June, 1916.”

The law intended that having fifteen years’ service at the date of the passage of the act he should take rank under the act from its date.

This is not the case of an original appointment in the Army. It is the case of a person already in the military service, promoted to a rank therein, and in actual performance of the duties appropriate to the rank from the date stated in his commission.

By the Manual for the Quartermaster Corps, 1916, Par. 1124:

*179“An officer promoted by seniority is entitled to the pay of the higher grade from the date of vacancy, whether such vacancy arises from death, resignation, promotion, removal, the creation of an additional office, or from any other cause.”

In 7 Comp. Dec. 508, is a full discussion of this subject. A decision of the Second Comptroller made in 1886 is stated, as follows at p. 510:

“No congressional enactment declares the time when the pay of the higher grade shall begin to accrue to the promoted officer, but by immemorial custom and practice the pay is allowed from the date of the vacancy.”

The Army appropriation act of April 23, 1904, 33 Stat. 264, provided that any officer of the Army who served with credit as an officer or enlisted man during the civil war and who had been or might be retired “ may, in the discretion of the President, by and with the advice and consent of the Senate, be placed on the retired list of the Army with the rank and retired pay of one grade above that actually held by him at the time of retirement.”

Although these promotions were made by the statute purely discretionary, it was held by the Attorney General that they might and should be made to take effect from the date of the passage of the act, and even that officers who died after the passage of the act, but before being nominated to the Senate might properly be nominated after their deaths and given a retroactively advanced grade (25 Opns. Atty. Gens. 299, 300, 301, 312, 319; 11 Comp. Dec. 696).

In *United States*v. Burehard, 125 U. S. 176, the Supreme Court held that under the provisions of Eev. Stats., sec. 1594, the President had the power to transfer an officer from the furlough to the retired list from the 26th of October, 1874, although the nomination ivas made on March 1, 1878.

The court said at p. 180:

“ There is no prohibition against antedating such a transfer. The statute simply says that the President, by and with the advice and consent of the Senate, may make it,, and in our opinion he may with like advice and consent determine whether it shall operate only in the future or relate back to a time when in his judgment it ought to have been granted. It follows tliat Burehard, by this action of the *180President and Senate, became entitled to half sea pay from October 26, 1871.”

The act of August 29, 1916, provided for certain officers of the Marine Corps “the rank, pay, and allowances of a brigadier general.” Several colonels were thereupon nominated and confirmed as brigadier generals and received their commissions September 18, 1916. The Comptroller held that they were entitled to pay as brigadier generals from the date of the passage of the act (24 Comp. Dec. 212).

In 15 Comp. Dec. 157, it was held that vacancies created by the act of April 16, 1908, in the offices of the Revenue Cutter Service might and should be filled by promotion to take effect as to rank and pay from the date of the passage of the act creating the new offices.

An analogous question was presented in the case of the dental surgeons who by act of October 6, 1917, though already in the Army, were to receive commissions in higher grades, but only after confirmation by the Senate.

An officer having been commissioned and having accepted his commission January 8,1918, it was decided by the Comptroller of the Treasury, 24 Comp. Dec. 512, 514:

“I am of opinion that the dental officer in question was not appointed to a new office in the Army, but was promoted in the office he was holding and was entitled to pay of the rank to which promoted from the date of the act authorizing the promotion (15 Comp. Dec. 157).”

It has also recently been decided that even in the case of civil service employees, as to whom the laws are much less favorable in this respect than those in the military service, an increase of compensation of an employee may take effect even before the oath is taken, provided the position and duties were the same (24 Comp. Dec. 547).

These rulings are in accordance with the decisions of the Supreme Court in *United States*v. Flanders, 112 U. S. 88, and *United States*v. *Eaton,*169 U. S. 831, affirming 31 C. Cls. 158, which decisions also in principle support the present case.

*Mr. Richard P. Whiteley,*with whom was *Mr. Assistant Attorney General Franlc*Davis, *jr.,*for the defendants.

*181Hay, Judge,

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

The plaintiff in this case claims that by virtue of section 16 of the act of June 3, 1916, 39 Stat., 176 he is entitled to pay as captain from the date of said act notwithstanding the fact that he was not appointed to the rank of captain under that act until the 22d day of March, 1917.

The provisions of section 16 of said act are as follows:

> “ Sec. 16. The President is hereby authorized, by and with the advice and consent of the Senate, to appoint veterinarians and assistant veterinarians in the Army, not to exceed, including- veterinarians now in service, two such officers for each regiment of Cavalry, one for every three batteries of Field Artillery, one for each mounted battalion of Engineers, seventeen as inspectors of horses and mules and as veterinariáns in the Quartermaster Corps, and seven as inspectors of meats for the Quartermaster Corps; and said veterinarians and assistant veterinarians shall be citizens of the United States and shall constitute the Veterinary Corps and shall be a part of the Medical Department of the Army-.

> “ Hereafter a candidate for appointment as assistant veterinarian must be a citizen of the United States, between the ages of twenty-one and twenty-seven years, a graduate of a recognized veterinary college or university, and shall not be appointed until he shall have passed a satisfactory examination as to character, physical condition, general education, and professional qualifications.

> “An assistant veterinarian appointed under this act shall, for the first five years of service as such, have the rank, pay, and allowances of second lieutenant; that after five years of service he shall have the rank, pay, and allowances of first lieutenant; that after fifteen years of service he shall be promoted to be a veterinarian with the rank, pay, and allowances of captain, and that after twenty years’ service he shall have the rank, pay, and allowances of a major: *Provided,*That any assistant veterinarian, in order to be promoted as hereinbefore provided, must first pass a satisfactory examination, under such rules as the President may prescribe, as to professional qualifications and adaptability for the military service; and if such assistant veterinarian shall be found deficient at such examination he shall be discharged from the Army with one year’s pay.

> *“*The veterinarians of Cavalry and Field Artillery now in the Army, together with such veterinarians of the Quarter*182master Corps as are now employed in said corps, who at the date of the approval of this act shall have had less than five years’ governmental service, may be appointed in the Veterinary Corps as assistant veterinarians with the rank, pay, and allowances of second lieutenant; those who shall have had over five years of such service may be appointed in said corps as assistant veterinarians with the rank, pay, and allowances of first lieutenant; and those who shall have had over 15 years of such service may be appointed in said corps as veterinarians with rank, pay, and allowances of captain: Provided, That no such appointment of any veterinarian shall be made unless he shall first pass satisfactorily a practical professional and physical examination as to his fitness for the military service: *Provided*further, That veterinarians now in the Army or in the employ of the Quartermaster Corps who shall fail to pass the prescribed examination because of physical disability incident to the service and sufficient to prevent them from the performance of duty valuable to the Government shall be placed upon the retired list of the Army with 75 per centum of the pay to which they would have been entitled if appointed in the Veterinary Corps as hereinbefore prescribed.”

The provisions of this act do not provide for the promo-motion of any of the persons who were then in the Army; they merely rendered such persons eligible for appointment to an office created by the act. If such persons fulfilled the requirements which the act prescribed they could be appointed. Thus the plaintiff was appointed to the newly created office of captain after he had passed the required examinations, and because of his previous governmental service of 15 years. It was clearly a case of an original appointment under the provisions of the act of June 8, 1916. Being such an appointment he was not entitled to receive the pay and allowances of the office until he had executed the oath of office. There is nothing in the terms of the act which justifies the contention that the law intended that an appointee under it should take rank and have pay from the date of the act.

It will be observed that under the terms of the act the President is authorized to appoint veterinarians and assistant veterinarians in the Army. Nothing in the act refers to promotion. There was. nobody to promote. New offices were being created, original appointments were to be made, *183and authority was granted to appoint, not to promote, certain persons who had rendered certain services for a specified length of time. See *Seifert*v. *United*States, 52 C. Cls., 40. The petition must be dismissed.

Graham, Judge, Downey, Judge, Booth, Judge, and «Campbell, *Chief*Justice, concur.