#### EMMA V. BROWN, ADMINISTRATRIX OF JAMES BROWN, DECEASED, v. THE UNITED STATES.

No. 12936

May 14, 1883.

A boatswain in the Navy, in October, 1872, was placed on the retired list under the *Aot of August*3,1861, ch. 42, § 23 (12 Stat. L., 291, now Rev. Stat., §§ 1448-1455), and was thereafter paid the salary of a retired officer, until he died, in 1879, and was not allowed longevity pay for the time his name was on said list.

His administratrix brings suit claiming that he was never legally retired, and was entitled to the salary of an officer on the active list and to longevity increase.

Held :

I. The *Aot of August*3,1861, ch.1 42, § 23 (Í2 Stat. L., 291, now Rev. Stat., 1448-1455), applies to warrant officers, and they may be retired the same as commissioned officers. The President’s act in retiring a boatswain in 1872 was legal and valid.,

II. Officers of the Navy on the retired list are not entitled to longevity pay under the provisions of Rev. Stat., § 1588, for the time their names are borne on said list. Affirming the decisions in other cases decided at the present term *(ante,*111, 339, 347).

The following are the facts found by the court:

I. Claimant is the administratrix of James Brown, deceased. Said decedent was appointed a'boatswain in the Navy of the United States from January 4, 1862.

II. October 22, 1872, claimant’s intestate was placed upon the retired list, as appears in the following record:

Navy Department,

Bukeau oe Navigation and Oeeice oe Detail,

*Washington, 3d Oet.,*1872.

Sir: Proceed to Washington City by the 7th instant, and report to Rear-Admiral Rodgers at the Department for examination under the 23d sec. of the act of Aug. 3, 1861, by the retiring board of which he is president.By direction of the Secretary of the Navy.

Respectfully,

Daniel Ammen,

*Chief of Bureau.*

Boatswain James Brown, *U. S. N.,*

*Baltimore, Md.*

*538Navy Department, 22 *October,*’72.

Sir : The Naval Retiring Board before which, you recently appeared found you incapacitated from performing the duties of your office, and that there is no evidence that the incapacity is the result of any incident of the service. The President of the United States having heen pleased to concur in opinion with the hoard, and to direct that yon be retired on furlough pay, you will he considered as so retired from this date.

Respectfully,

A. Ludlow Case,

*Acting See’y Navy.*

Boatswain James Brown,

*U. S. Navy', Baltimore, Md.*

.III. From October 22,1872, to June 30,1875, claimant’s intestate was paid an annual compensation of $900, and from July 1,1875, to June 6,1879, be was paid an annual compensation of $500. On tbe latter date be died.

IV. Tbe *Acts of August*3, 1861, cb. 42 (12 Stat. L., 290), and of *December*21, 1861, cb. 1 (12 Stat. L., 329), were, soon after tbeir enactment, construed by tbe President and tbe Navy Department to include warrant officers. Under tbat construction it bas been tbe uniform practice of tbe President to place warrant officers on tbe retired list.

As appears by tbe Navy Register of various dates, large numbers of these officers have been so retired.

It does not appear tbat during tbe lifetime of claimant’s intestate any objection or protest on bis bebalf was made either to tbe retirement or pay.

V. Tbe accounting officers of tbe Treasury have uniformly held tbat longevity pay to retired officers was not authorized by section 1593 of tbe Revised Statutes.

*Mr. John Paul Jones*and *Mr. Robert B. Lines*for the claimant:

1. Claimant’s intestate, Brown, was retired under alleged authority of section 23, *Act of August*3, 1861 (12 Stat. L., 291), apparently authorizing tbe retirement of *u*any officer.” Tbat section did not authorize the retirement of boatswains — first, because they are not in tbe list for whom retired pay is provided in section 22; second, because they are not in tbe line of promotion from which all officers retired under tbe act are “ to be withdrawn”; and third, because there is noofficer “next in rank” *539to be “ promoted to the place of the retired officer, ” as required by the act.

The classes of officers to be retired on furlough pay are only those who, if their disability be found incident to the service, could be retired on the pay provided in section 22. For limitation of general words in a statute, see *Pretty*v. *Solly,*26 Beav., 686; also, 2 De G-. & J., 614; 2 M. & W„ 378; 2 Cranch, 38; 18 Md., 484; 6 La. An., 464; 52 Pa. St., 391, and 6 De G. M. & G., 1.

2. Because not in the line of promotion, and because their numbers are not limited (2 Stat. L., 390; 5 Stat. L., 500; 9 Stat. L., 172), boatswains are not within the policy of the retiring acts (10 Stat. L., 616; 12 Stat. L., 150, 291, 329). General words do not change the previous policy of the law. *(Minet*v. *Pieman,*20 Beav., 269.)

3. Furlough pay was abolished by sections 3, 5, and 19 of the *ActofJuly*15,1870 (16 Stat. L.,330), establishinganew pay-table for the Navy, regulating the whole subject-matter and prescribing the only rule to govern. (Sedg. on Stat., 124; 3 How., 636; 10 Oal., 315; 9 N. H., 59; 10 B. Mon., 154.) Section 5 prescribed half of their highest pay for all retired officers. Brown could not, therefore, be retired for disability not incident to the service until furlough pay was restored by the Revised Statutes.

4. The order of retirement was void, because it directed that Brown be “ retired on furlough pay,” those words being an essential part of the order. It was also void because it did not show an affirmative'flnding by the Retiring Board, as required by law, but only that there was *“*no evidence ” that claimant’s disability was incident to the service. (Potter’s Dwarris, 223, note.)

5. .If the words “on furlough pay” were mere surplusage, and the order put Brown on half-ft ay (the only retired pay at the time it was issued), as was held by the accounting officers, then those words derived no force from Revised Statutes, § 1593, subsequently enacted, which relate only to officers actually retired on furlough pay. Brown should therefore, after the enactment of the Revised Statutes, have been paid under the second clause of section 1588,. instead of under section 1593. *(McDaniel*v. *Carroll,*19 Ill., 226.)

6. His pay under section 1588 should have been gradually *540increased after retirement under the longevity provisions of section 1556.

7. If Brown’s pay, after the enactment of the Bevised Statutes, was governed by section 1593, then he was clearly entitled to longevity. That section provides that “ officers placed on the retired list, on furlough pay, shall receive only one-half of the pay to *which they would have been entitled if on leave of absence on the active*list.” Leave-of-absence pay is a graduated pay. Furlough pay for the active list, prescribed in almost exactly the above words (Bev. Stat., § 1557), is a graduated pay. The words of section 1593 are an embodiment of the rule in *Tyler’s Case*(105 U. S. B., 244), which fixes a retired officer’s pay at any time according to the pay he would receive *at that time*on the active list.

*Mr. F. R. Rotee*(with whom was *Mr. Thomas*Simons, Assistant Attorney-General) for the defendants:

1. The claimant was lawfully retired on October 22, 1872. The twenty-third section of the Act of August 3, 1861, authorizes the. retirement of warrant officers—

(1.) Because such officer held an £( office ” such as is contemplated by the act.

(2.) Because there existed the same reason for his retirement as for that of a line officer, and therefore it must have been the intention of the Legislature to permit his retirement.

(3.) Because the context of the act plainly indicates that warrant officers are embraced in its provisions.

2. Claimant is now estopped from denying the legality of the President’s action by the long silence of her intestate. (Greenleal’s Ev., §§ 27,197, 207, 210; *Duryea’s Case,*17 0. Cls. B., 24; *Rildeburn’s Case,*13 C. Cls. B., 62.)'

3. The fifth section of the Act of July 15,1870, repealed neither furlough pay nor the authority of the President to retire warrant officers on such pay.

4. The President had the authority, previous to the Act of July 15,1870, to place warrant officers upon the retired list. It will be presumed that the Legislature.did not intend to deprive him of that authority. Courts do not favor repeal by implication. On the general subject of repeal by implication, see Sedg. on Stat. and Const. Law, 127; *Wood*v. *United**541*States,*16 Bet., 342; *Henderson’s*Tobacco, 11 Wall., 652, 657; *Canal Company*v. *Railroad*Company, 4 Gill & J., 1; *Brown*v. *County*Commissioners, 21 Pa., 37; *Williams*v. Potter, 2 Barb., S. G. B., 316; *Commonwealth*y. *Hérricíc,*6 Gush., 465.

5. The Act of 1835 fixed furlough pay at one-half of leave-of-absence pay.

The Act of 1861 authorized certain officers to be retired on furlough pay.

The Act of 1870 fixed furlough pay when applied to retired officers at one-half of their highest active-duty pay.

Furlough pay continued to live in the body of the law after the 15th of July, 1870. The authority of the President to retire on furlough pay survived that date.

The effect of the Act of 1870 upon the twenty-third section of the Act of 1861 was not to abolish furlough pay, nor the power to retire on furlough pay, but pimply and only to raise the amount of such pay. *(Rodney’s Case,*15 Op., 316; *Welles’ Case,*15 Op., 442; *Magaw’s Case,*16 O. Ols. B., 3.)

6. Section 1593 does not contemplate longevity pay for retired officer's.

OPINION.

Scofield, J.,

delivered the opinion of the court:

January 4,1862, claimant’s intestate was appointed a boatswain in the Navy.

October 22,1872, by order of the President, he was placed upon the retired list, under section 23 of the *Act of August*3, 1861, ch. 42 (12 Stat. L., 291; now Bev. Stat., §•$ 1448-1455).

Are warrant officers included in this section? If not, the action of the President was void, and the officer was entitled to pay on the active list. The following is the section:

> Sec. 23. *And be it further enacted,*That when *any*officer of the Navy, on being ordered to perform the duties *appropriate to his commission,*shall report himself unable to comply with such order, or whenever in the judgment of the President of the United States *an officer*of the Navy shall be in any way incapacitated from performing the duties of his office, the President, at his discretion, shall direct the Secretary of the Navy to refer the case of such officer to the Board. * * * The Board, whenever it finds an officer incapacitated for active service, will report whether, in its judgment, the incapacity result from long and faithful service, from wounds or injuries received in the line of duty, from sickness or exposure therein, or from anyjother incident of the service; if so, and the President approve of *542such judgment, the disabled officer shall thereupon be placed upon the list of retired officers *according to the provisions of this act.*But if such disability or incorupetency proceeded from other causes, and the President concur in opinion with the Board, the officer may be retired upon furlough pay, or he shall be wholly retired from the service with one year’s pay, at the discretion of the President. * * *

This act was passed early in the war. It was followed soon after by tbe *Act of December*21, 1861, cb. 1 (12 Stat. L., 329), which placed upon the retired list all officers who had “been borne on the Naval Register forty-five years,” or were sixty-two years of age. These two acts manifest the intention of Congress to remove from the active list all officers who might be deemed to be unfit actors in the terrible war then flagrant in the country. At that time the President had power to dismiss any warrant officer at pleasure, and through a new appointment, by and with the advice and consent of the Senate, to remove commissioned officers. *(Blake*v. *United States,*103 U. S. R., 227.) To turn out these officers, many of whom were broken with age, wounds, or exposure in the service, seemed a cruel expedient. Congress, therefore, enlarged the retired list. The enlargement included all commissioned officers. Did it also include warrant officers as well1? Under the head of warrant officers were classed boatswain, gunners, carpenters, sailmakers, and at that time first, second, and third engineers. The President and Secretary, charged with the responsibility of putting the *personnel*of the Navy in fighting trim, and unwilling to deprive old officers of bread, construed the statutes to include warrant as well as commissioned officers. As the service required retirement or dismissal, it was a beneficent construction. All succeeding Presidents have adopted it.

But it must be admitted that, by the words of the statutes, the intention of Congress is not clear. “ Any officer,” in the first line of section 23, embraces warrant as well as commissioned officers, but in the second line it seems to be qualified by the words “duties appropriate to his commission.” Further on occur the words “placed upon the list of retired officers according to the provisions of this act.” “This act,” in section 22, prescribes the pay of all- retired commissioned officers, except those retired for incapacity not incident to the service, but makes no provision for-warrant officers. It also speaks of these officers being withdrawn “from the line of pro*543motion. Warrant officers ha'd no line of promotion. From this phraseology the counsel of the claimant has been able to make a strong argument in favor of his construction. If the case were entirely new, it is not improbable that the court would concur with him. But the act is now more than twenty-one years old. At the first the President and the Navy Department construed it to include warrant officers. A large number have been retired under that construction. It cannot be doubted that a decision which should reverse this longstanding practice, and fender void the whole list of retirements, would produce great mischief. Besides, the President’s construction was not without reason. There are two sides to the argument. “Any officer of the Navy” certainly includes warrant officers. “ Commission,” in the second line, relied upon to limit the act to commissioned officers, is not necessarily used in a technical sense, and if not so used it signifies office or position. “Warrant” arid “commission,” outside of naval technicality, are synonymous words. There is no difference, in form, between a commission and a warrant as used in the Navy, except that one recites that the appointment is made “ by and with the advice and consent of the Senate,” and the other does not. Both are signed by the President. “According to the provisions of this act,” does not, as claimant supposes, necessarily refer to the pay schedule in section 22. It may, without violence to rules of construction, mean the same as if it read “by virtue of this act,” or “by authority of this act.” In reply to the objection that warrant officers do not appear in the pay schedule of section 22, it may be said that section 23 prescribes the pay of all officers retired for incapacity not incident to the service. Claimant’s intestate was retired for this reason. In the first section of the Act of December 21,1861, by which all officers are retired who are sixty-two years of age or have served forty-five years, warrant officers are clearly included. There are no words of limitation, as in section 23 of the Act of August 3, 1861, though some of them reappear in sections 5 and 6 of the act.

In the Bevised Statutes these laws are re-enacted, but so arranged as to clearly include warrant officers. Section 1588 provides the pay omitted in section 22 of the Act of 1861.

As before stated, if this question had come before us unem*544barrassed by Executive construction and long practice, we might bave agreed to claimant’s construction. But now, considering that the question is not free from doubt, that the construction of the President has been acted upon for more than twenty years, that the act has been incorporated in the Revised Statutes in a manner to sustain that construction, and that it does not appear that in the lifetime of claimant’s intestate any objection or protest on his behalf was made either to the retirement or pay, we do not feel at liberty to interfere.

In *Edwards’s Lessee*v. *Darby*(12 Wheat., 210) the Supreme Court says: .

> In tlie construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law and were appointed to carry its provisions into effect is entitled to very great respect.

In *United States*v. *Moore*(95 U. S. R., 763) the opinion in Edwards’s Lessee is cited with approval, and the court adds, “ and ought not to be overruled without cogent reasons.” This opinion is again approved in *United States*v. *Pugh*(99 U. S. R., 265), and the court there says:

> While the question is one by no means free from doubt, we are not inclined to interfere at this late day with a rule that has been acted on by the Court of Claims and the Executive for so long a time.

The same principle was decided by this court in *Hahn’s Case*(14 C. Cls. R., 305), and recently affirmed by the Supreme Court (probably 108 U. S. R.)

Assuming that claimant’s intestate was legally placed upon the retired list, the next inquiry is as to the amount of his pay. Down to July 1, 1875, he was paid at the rate of $900 a year, but no question is raised about that. After that date, under section 1593 of the Revised Statutes, he was paid at the rate of $500 a year. This section provides that “officers placed on the retired list, on furlough pay, shall receive only one-half of the pay to which they would be entitled if on leave of absence on the active list.” Section 1556 fixes a boatswain’s pay during the “fourth three years on leave or waiting orders” at $1,000 a year, and after twelve years’ service at $1,200 a year. Claimant’s intestate was retired on “furlough pay” during his “fourth three years” of service, and was therefore entitled under section 1593 to only $500 a year. This amount was paid him.

*545tliat after the revision of the statutes his retired pay should have been calculated according to section 1588 instead of 1593. The pay under 1588 would have been $800 a year. Section 1588 refers to retired Navy officers in general, and 1593 specifically to officers retired on furlough pay. Section 1593 must, therefore, be held to take all cases embraced within its terms out of section 1588. Exactly the same question was raised, carefully considered, and decided the same way in *Magaw’s Case*(16 C. Cls. R., 3).

is also contended that claimant’s intestate was at least entitled to longevity pay under section 1593, which after January 4,1874, would have been $600 a year. Do officers retired under section 1593 come under the longevity rule?

Longevity pay is supposed to be based upon the theory that an officer’s usefulness, increased by length of service, should be rewarded by increased remuneration. Experience undoubtedly is the better part of education. In all professional and buisness affairs it commands the higest price. In fixing the pay of Navy officers on the active list, Congress had recognized this fact and graded the pay by length of service. It can have very little application, however, to any officer on the retired list, and none at all to officers retired for incapacity. A retired officer has no opportunity to improve in knowledge or skill in nautical affairs. He rusts rather than brightens. An officer retired for incapacity has neither the opportunity nor the power to improve. He will never be recalled. Unequal to his duties in time of peace, he would be more than useless in war.

the construction given to Revised Statutes, § 1588, in three cases decided at this term, to wit, Thornley’s, Rutherford’s, and McClure’s *(ante,*111, 339, 347), no officer retired under its provisions is entitled to longevity paj\ Unless expressed in unmistakable language, we are not authorized to infer that Congress, after refusing longevity pay to officers retired on account of wounds received or health broken in the service, intended to bestow it upon officers retired for incapacity never caused by the service, often by their own folly, intemperance, or excess. Such an enactment would be in confiictnot only with the policy indicated by section 1588, but with the fundamental theory of longevity pay. While it must be admitted that the language of section 1593 is doubtful, it can be *546supposed that Congress intended to bestow this boon upon tlie elass of officers the least deserving and deny it to the most meritorious.

Longevity pay under section 1593 has never been allowed by the accounting officers of the Treasury, and we do not feel called upon by anything appearing in this case to overrule their construction and long practice.

Claimant’s petition will be dismissed.