#### WILLIAM H. RUTHERFORD v. THE UNITED STATES.

No. 12795

April 2, 1883.

The claimant, a chief engineer, inthethird.periodof five years’ service, was retired on account of disability originating in the line ofhis duty. Having been allowed retired pay at 75 per cent, of his own sea-pay at the time of his retirement, he claims that under Rev. Stat., §§ 1556, 1588, he should have been allowed 75 per cent, of the sea-pay of one of twenty years’ service who has the highest sea-pay allowed to the office of chief engineer.

Held :

I. The word “grade,” in Rev. Stat., § 1588, which fixes the pay of retired officers of the Navy at 75 per cent, of the sea-pay provided for the grade or rank held at the time of retirement, refers to the divisions of officers into five years’ periods of service. An officer retired in the third period of five years’ service is entitled to 75 per cent, of the sea-pay of that pay grade, and not to the highest pay of a chief engineer who has served over twenty years.

II. The different use of the words “grade” and “rank” in the several statutes relating to the Navy discussed and explained.

This is an action to recover pay as a retired chief engineer in the Navy, involving the construction of Revised Statutes, §§ 1556,1588.

The following are the facts found by the court:

I. Claimant entered the Navy September 22,1849, and was commissioned chief engineer August 12,1861.

II. He was placed on the retired list as a chief engineer October 26, 1874, for disability originating in the line of duty, and has ever since been borne on said list in said grade or rank of chief engineer.

*340III. Since July 1, 1875, he has been paid at the rate of $2,625 per annum.

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

1. The law governing this case is the same as that for *Tliornley*v. *United States {ante,*111), Rev. Stat., §§ 1556,1588. Defendants admit that it was decided in Thornley’s Case that “grade” and “ rank,” in section 1588, are identical, and mean title or office; in that case “ surgeon,” in this case “ chief engineer.” Section 1556 gives officers of that “ grade or rank” a sea-pay graduated in periods of five years from date of commission, and section 1588 gives retired officers 75 per centum of “ the sea-pay of the grade or rank held by them at retirement.” The court held in Thornley’s Case that no retired officer’s pay is a fixed sum. If that is correct, it must be because the words “the sea-pay” in section 1588 refer to one of the five rates of sea-pay provided in section 1556, and not to the whole sliding scale.

2. But there is nothing in section 1588 to show which rate is referred to. The words “the sea-pay” therefore contain a latent ambiguity. In such cases the construction most favorable to the officer should be adopted (3 Story, 87; 3 Blatchf., 325). Or the ambiguity may be solved by reference to the act from which .the section was drawn. *(Bowen*v. *United States,*14 0. Cls. R., 162; 100 U. S. R., 508; *Wright*v. *United*States, 15 C. Cls. R., -87.) Acts *in pari materia*(1 Kay, 180; 1 Burr., 447; *Fx parte Copeland,*2 DeGr., M. & G.). Contemporaneous history and the journals and debates (23 Wall., 317; 3 Blatchf., 325; 70 Ind., 331).

3. This leads us first to the *Act of March*3,1873 (17 Stat. L., ■547), and section 3, *Act of July*15, 1870 (16 Stat. L., 330). The •same ambiguity again appearing, reference to other sources of information becomes necessary and discloses the following: Down to 1870 all officers of the same grade retired for age, length of service, or disability incident to service, *were given thp samepay, no matter in what histrum of service retired;*and such pay was higher than the pay of officers retired for disability not incident lo service. (10 Stat. L., 616; 12 Stat. L., 290, 291, 329.) Officers retired for the former causes were frequently assigned to active •duty under section 2, *Act of February*28,1855 (10 Stat. L., 617), and section 25, *Act of August*3, 1861 (12 Stat. L., 291); and while so assigned received active pay under section 5, *Act of June*1, 1860 (12 Stat. L., 27). Section 5 of the Act of July 15, *3411870,- gave all retired, officers, no matter when or for what cause retired, one-half the *highest*pay of their grade.

4. The object of the Act of March 3,1873, was, first, to relieve retired officers from active duty; second, to compensate those retired for meritorious causes for the deprivation of active pay by increasing their retired pay; and, third, to restore the distinction between such retired officers and those retired for causes not incident to service. The' débates show that it was intended to increase their pay from 50 to 75 per centum of their *highest*pay, and that the words “sea-pay” were used inadvertently. (Globe, third session Forty-second Congress, 1353-1384.) There was no intention to discriminate between officers retired for age and those retired for disability incident to service.

5. In construing this act and Bevised Statutes, § 1588, to give these officers 7 5 per cent, of the sea-pay of their grade or rank *for the lustrum*in which they were retired, the accounting officers for the first time introduced such a discrimination. They also violated the plain intent of the law by not increasing the pay of a chief engineer retired in his first lustrum for disability incident to service. Under the Act of 1870 his pay was $2,100; one-half of his highest pay. Under the Act of 1873 they made it $2,100 — 75 per cent, of his sea-pay for the first five years.

6. If “the sea-pay ” in section 1588 refers to a particular rate of sea-pay, it must, as above shown, refer to the highest rate, and claimant must recover at that rate. If it does not refer to a particular rate, then it must refer to the whole sliding scale fixed in section 1556 according to age of commission, and claimant must recover the lesser amount by reason of longevity, from date of commission. (See argument in Thornley’s Case, *ante,*111.) ' ' ■

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

1. Defendants rely on the decision in the Thornley Case *(ante,*111). There is no such ambiguity in the language of section 1588 as should compel the court to go back to the laws from which it was drafted into the revision. *(Bowen’s Case,*14 O. Cls. B., 162; affirmed on appeal, 100 U. S. B., ,508; *Wright’s Case,*15 C. Cls. B., 80.)

This court, in Thornley’s Case, have already held that the *342words “ at the time of their retirement,” in section 1588, referred to the “sea-pay” of the officer retired as well as to his “grade or rank.”

The whole reason for establishing a graded pay for officers of the Navy is founded upon the fact of their “ actual service,” *i. e.,*performance of active duty. Retired officers not performing such duty are not entitled to graded pay for length of service on the retired list.

2. To accede to claimant’s demand here would involve this incongruity: A chief engineer on the active list for the first five years after date of commission is entitled to $2,800 per an-num. If retired he would be entitled to $3,150 per annum. In other words, claimant is arguing in favor of a construction that would give him $350 per annum more for doing nothing than for doing something. That seems to be putting a premium on idleness. Congress never intended such an incongruity.

OPINION.

Scofield, J.,

delivered the opinion of the court:

The claimant, after serving thirteen years as chief engineer on the active list of the Navy, in consequence of disability originating in the line of duty was placed upon the retired list.

The question is as to the amount of his retired pay.

By the accounting officers of the Treasury he was 75 per cent, of his own sea-pay at the time of his retirement, but he thinks that he is entitled to 75 per cent, of the sea-pay of a ehief engineer who has served as such more than twenty years. It makes a difference of $525 a year.

The law of the case is embraced in the following the Revised Statutes:

> Sec. 1588. The pay of all officers of the Navy who have been retired after forty-five years' service after reaching the age of sixteen years, or who have been or may be retired after forty years’ service, upon their own application to the President, or on attaining the age of sixty-two years, or on account of incapacity resulting from long and faithful service, from wounds or injuries received in the line of duty, or from sickness or exposure therein, shall, when not on active duty, be equal to seventy-five per centum of the sea-pay provided by this chapter for the grade or rank which they held, respectively, at the time of their retirement. The pay of all other officers on the retired list shall, when not on active duty, be equal to one-half the sea-pay provided by this chapter for the grade or rank held by them, respectively, at the time of their retirement.

*343The intention of the law seems at first to be plain enough, but the disagreement originates in the use of the words “grade or rank.” The section includes all divisions of the Navy* but all divisions are not paid according to what is technically called, in-the law, grade or rank. When the pay on the active list is determined by grade or rank, technically so called, there is no difficulty in ascertaining the pay on the retired list. But Navy officers are classified — 1, according to duty, office, or titlej 2, according to relative importance or honor; 3, according to compensation. All of these classes come within the normal meaning of the words “grade or rank.” The law designates some of them as grades or ranks by name, others only by description.

In the Corps of Engineers there are divisions by which pay is regulated, but they are not called, in the law, grades or ranks. There are other divisions which are called grades or ranks, for which there is no corresponding grades of pay, as appears in the following sections of the Revised Statutes:

> Sec. 1390. The active list of the Engineer Corps of the Ñavy shall consist •of seventy chief engineers, who shall be divided into three grades, by relative rank, as provided in chapter four of this title (section 1476): Ten. •chief engineers; fifteen chief engineers; and forty-five chief engineers, who shall have the relative rank of lieutenant-commander or lieutenant.

> And each and all of the above-named officers of the Engineer Corps shall have the pay of chief engineers of the Navy, as now provided.

> Sec. 1476. Officers of the Engineer Corps on the active list shall have relative rank as follows: Of the chief engineers, ten shall have the relative rank of captain, fifteen that of commander, and forty-five that of lieutenant-commander or lieutenant.

Here the class of chief engineers is divided into three grades and three ranks, technically so called, but they, are grades and ranks of honor or duty, with no corresponding divisions on the pay-roll. On the contrary, the pay of chief engineers, as appears in section 1556, is governed entirely by length of service. It is very clear, therefore, that the grade-or rank described in sections 1390 and 1476 is not the grade or rank called for in section 1588. To this both claimant and defendants agree, and yet this is the only classification of chief engineers which the law distinctly and technically calls a grade or rank.

The division in the Engineer Corps which consists of seventy chief engineers, although not denominated in the law a grade *344or rank, might be so considered if that would solve the question, but it only involves it in greater obscurity. Chief engineers have no uniform rate of pay. Their sea-pay varies from $2,800 to $4,200. Each of these several sums constitute the pay of a chief engineer, and there is nothing in the lav to indicate upon which amount the pay of the retired officer is to be calculated. Besides, the words “chief engineer” indicate the title or office, rather than the grade or rank of the officer.. The difference between office and title on the one hand and rank and grade on the other is discussed and well defined in *Wood’s Case*(15 C. Cls. R., 151) and 15th edition of Bouvier’s Law Dictionary, “Rank.”

Here we have a division which the law does not call a grade or rank, and which does not correspond with any single grade of pay, and yet it is the division selected by the claimant from which to reckon his retired pay. However, he not only admits,, but stoutly contends, that this construction makes the law ambiguous. So, indeed, it does, and .incongruous also.

To clear up this ambiguity he refers to the debate in the Senate on the passage of the law, and infers theiSfrom that it was. indended to make the retired pay of a chief engineer, no matter in what pay-grade he happened to be when retired, 75 per centum of $4,200. Waiving any question about arriving at the meaning of a law by what some members in one house thought it was, the debate does not appear to sustain the claimant’s inference. The bill proposed to raise the retired pay of all Navy officers described therein from 50 to 75 per centum of their pay on the active list. Now, these officers have four-grades in their active pay, to wit, furlough, waiting-orders, shore-duty, and sea pay. The question discussed in the Senate-was whether the 75 per centum should be calculated on the sea-pay, which is the highest, or on some lower grade. It does not appear that Senators at all considered the question involved in this suit. It is quite probable that it did not at the time occur to them that Navy officers on different rolls were graded for-pay, duty, and honor.

It is further said that, by the construction given to the old law by the accounting officers, a retired chief engineer, regardless of the lustrum or p&y grade from which he was retired, received the sum of $2,100. Although it appears by the Senate *345debate tbat tbe intention was to increase retired pay from 50 per centum, tbe old rate, to 75 per centum, there would during tbe first lustrum, unless claimant’s construction is adopted, be no increase. In each case tbe retired pay is $2,100. If tbe accounting officers properly construed tbe old law, wbicb we need not here consider, tbat effect would follow. But it would be for a short time only — never exceeding'five years. But, on tbe other band, the rule or construction advocated by tbe claimant would lead to most preposterous results.

According to this construction, a chief engineer, retired soon after receiving bis commission, would for -tbe first five years be paid $350 a year more than bis highest pay on tbe active list. For tbe second five years bis retired pay would be only $50 a year less than bis highest pay on tbe active list. So tbat at tbe end of ten years be would actually have- drawn from tbe Treasury $1,500 more than be would have been paid if be bad remained on tbe active list and bad been all this time at sea. It should be remembered, also, tbat an officer on tbe active list is not, as a rule, on sea-pay more than half tbe time. Tbe other half be is on waiting orders or sfhore-duty pay. In each lustrum, by a fair average, be would be entitled to sea-pay for about two years and a half, to shore:duty pay for about two years, and to waiting-orders pay for about six months. Carrying this average through twenty years of service, tbe entire pay of a chief engineer on tbe active list would amount to only $61,900, but on tbe retired list to $63,000." It will be seen by this calculation tbat tbe retired-officer, besides having all bis time during these twenty years to devote to any remunerative employment compatible with bis condition of health, would actually receive $1,100 more pay. -

But tbe law is susceptible of a very simple and reasonable construction. On tbe pay-rolls of the Navy we find tbe whole body of chief engineers divided into five grades or ranks, with specific compensation assigned to each. These grades for. pay are provided for in tbe following extract of section 1556 of tbe Revised Statutes:

> Surgeons, paymasters, and cliief engineers who have the same rank with paymasters during the first five years after date of commission, when at sea, $2,800; onshore duty, $2,400; ou leave or waiting orders, $2,000; during the second five years after such date, when at sea, $3,200; on shore duty, $2,800; on leave or waiting orders, $2,400; during the third five years *346after such date, when at sea, $3,500; on shore duty, $3,200; on leave or ■waiting orders, $2,600; during fourth five years after such date, when at sea, $3,700; on shore duty, $3,600; on leave or waiting orders, $2,800; after twenty years from such date, when at sea, $4,200; on shore duty, $4,000; on leave or waiting orders, $3,000.

The law omits to call these pay divisions grades, just as it omits to call the chief engineer division a grade, but it indicates pay grades by description. These pay grades harmonize most perfectly with section 1588. Together they give to the retired chief engineer 75 per centum of the sea-pay of the pay grade (as prescribed in section 1556) which he held at the time of his retirement. In this construction of these two sections all ambiguity, incongruity, and absurd results disappear.

Another construction which has been suggested, though not strictly grammatical, yet involving no unnatural use of the words and leading to no preposterous results, is found by associating the words “at the time of his retirement” with the words “75 per centum of the sea-pay,” in the preceding line. This construction, like the other, gives to a retired officer three-fourths of the sea-pay to which he was entitled on the active list at the time of his retirement. This amount has been allowed the claimant by the accounting officers of the Treasury, and in our judgment he is legally entitled to no more.

This question has been recently discussed aud decided in *Thornley’s Case (ante,*111). It would have been enough simply to have referred to that case as ruling this, but, at the special request of counsel for the claimant, we have gone over the ground again by a different route,, only to arrive at the same conclusion.

The claimant also asks to be allowed longevity pay on the retired list. This question was also decided in the Thornley Case. The opinion was delivered by the chief justice. Without attempting to add to his argument, we adopt, the conclusion which rules this case against the claimant.

The decision of the court is that the claimant’s petition be dismissed.