#### HARRY G. LEOPOLD v. THE UNITED STATES.

No. 13612

May 14 and

June 11, 1883.

A cadet-engineer in the Navy, having finished in June, 1882, his four years’ course at the Naval Academy, and received the usual diploma, claimed pay thereafter as provided in Eev. Stat., $ 1556, p. 268. He ivas allowed hy the accounting officers only the pay provided for naval cadets by the Act *of August*5, 1882, eh. 391 (22 Stat. at L., 285), on the ground that he was an undergraduate of the Academy, and as such became, by that act, a “naval cadet” and entitled only to pay as such.

Held:

I. Cadet-engineers who had finished their four years’ course at the Naval Academy, passed their final academic examination, andreceived their diplomas before the passage of the *Act of August*5, 1882, (22 Stat. at L., 285), became “graduates,” and are not made naval cadets by that act. They are therefore entitled to the pay provided by Eev. Stat., $ 1556, p. 268.

II. The provision in the Act of August 5,1882, for the discharge naval-cadet graduates is prospective only, and does not apply to the classes of 1881 and 1882.

The folio wing, are the facts found by the court:

I.fln 1878 claimant entered the Naval Academy as a cadet-engineer, and June 9,1882, having successfully passed the final academic examination, received the following certificate:

UNITED STATES NAVAL ACADEMY.

This certifies that Cadet-Engineer Harry G. Leopold has completed the prescribed course of study at the United States Naval Academy, and has successfully passed the required examination before the Academic Board.

In witness whereof we have hereunto set our hands this ninth day of June, *547in the year of our Lord one thousand eight hundred and eighty-two, and of the Independence of the United States-the one hundredth and sixth.

F. M. Ramsay,

*Captain, Supt. and President,*ex *officio.*

F. V.- McNair,

*Commander, Commandant of Cadets.*

N. H. Farquhar,

*Compander, Dep’t of Seamanship.*

H. B. Robeson,

*Commander, Dep’t of Ordnance and Cunnery.*

P. F. Harrington,

*Commander, Dep'ts of Astronomy and Navigation.*

W. W. Hendrickson,

*Professor, Dep’t of Mathematics.*

J. M. Rice,

*Professor, Dep’t of Mechanics and Applied Mathematics.*

Edward Farmer,

*Chief Engineer, Dep’t of Steam-Engineering.*

*J.*R. SOLEY,

*Professor, Dep’t of English Studies, PRstory, and Law.*

H. D. Todd,

*Professor, Dep’t of Physics and Chemistry.*

L. F. Prudhomme,

*Professor, Dep’t of Modern Languages.*

Marshal Oliver,

*Professor, Dep’t of Drawing.*

R. M. Chase,

*Secretary.*

II. He was thereupon detached from the Naval Academy by the following order:

Navy Department,

Bureau of Navigation and 'Office of Detail,

*Washington,*8 *June,*1882.

Sir: You are hereby detached from the Naval Academy on the 10th *ins';.;*proceed home and regard yourself as waiting orders.

By direction of the Secretary of the Navy.

Respectfully,

J. G-. Walker,

*Chief of Bureau.*

Cadet-Engineer Harry G-. Leopold, U. S. Navy,

*Annapolis, Md.*

*548III. He subsequently received the following order:

Navy Department,

Bureau op Navigation and Office op Detail,

*Washington,*24 *July,*1882.

Slit: Proceed to,Washington, D. C., -without delay, and report to Commodore Pattison for duty on hoard the IT. S. iron-clad steamer,Montank.

By direction of the Secretary of the|Navy.

Respectfully,

J. G. Walker,

*Chief of Bureau.*

Cadet-Engineer Harry G. Leopold, U. S. Navy,

*Cincinnati, Ohio.*

IY. December 5,1882, the Chief of the Bureau of Navigation addressed claimant an order, which was delivered on the 11th of the same month, detaching him from the Montauk and placing him on “waiting orders.”

December 15, 1882, claimant was ordered to shore duty at Washington, D. C., and reported for such duty January 8,1883. In both these orders he was formally addressed as a “naval cadet.”

Y. Since December 11, 1882, claimant has been paid at the rate of $500 per annum, and 30 cents per diem for commuted rations.

YI. After leaving the Academy, the claimant and all his classmates were classified, on the official Navy Begister, issued in July, 1882, as having “graduated”; and up to December, 1882, they were regularly paid as such at the rates prescribed by section 1556 of the Bevised Statutes, viz, $1,000 at sea, $800 on shore duty, and $600 on leave or waiting orders. In the same manner, the cadet-engineers who completed their four years’ course in 1878, 1879,1880, and 1881 were all regularly classified in the succeeding Navy Begisters as having-graduated in those years respectively; and prior to December, 1882, they were all uniformly paid as such.

*Mr. George L. Douglass*for the claimant:

1. This is a test case to determine the status of forty-six cadet-engineers who graduated fromtlieNavalAcademyin 1881 and in June, 1382, and turns upon the provisions of the subsequent Act of August 5,1882. If the construction placed upon that act by the Navy Department be correct, this claimant and *549forty-five others have already been reduced in pay, and in a short time will be inconsiderately dropped from the naval service. But if the act be taken to mean what it says, they remain undisturbed, and no vested rights are violated.

2. The academic course of cadets at the Naval Academy, prior to August 5, 1882, was regulated as follows:

The academic course of cadet-midshipmen shall he six years. (Eev. Stat., $ 1520.)

That from and after the thirtieth day of June, eighteen, hundred and seventy-four, the course of instruction at the Naval Academy for cadet-enginoers shall be four years, instead of two as now provided by law; and this provision shall first apply to the class of cadet-ongineers entering the Academy in the year eighteen hundred and seventy-four, and to all subsequent classes; and that all acts or parts of acts inconsistent herewith be, and are hereby, repealed. (1874, *Feb.*24, 18 Stat L., 17, Snppl. 5.)

In addition to this, a post-graduate course of “two years’ service on naval steamers” was originally provided for cadet-engineers by section 1524 of the Revised Statutes, and might be construed as still subsisting.. But this “service” had not the slightest connection with the Naval Academy, in fact, nor could it be construed as in anyway legally prolonging the academic course, for by the Act of 1874 everything “inconsistent” with a *four*years’ course at the Academy was expressly *repealed.*Such has been the uniform construction given by former Secretaries of the Navy, and the service during these two years has been invariably treated as actual service, having no connection with the Academy. On leaving that institution, at the end of four years, the cadet-engineers severed all connection •with it, precisely as the cadet-midshipmen did at the end of six years. So also at the end of four years they received the same pay as the eadet-midshipmeu received at the end of six years (Rev. Stat., § 1556), and at the end of four years they were uniformly called “ graduates” from that daté, precisely as cadet-midshipmen were called “graduates” at the end of six years. As cadet-engineers when appointed were always two years older, on an average, than cadet-midsiipmen when appointed, they both started in actual service alike as to age and pay, and there was no discrimination in favor of either.

3. June 9,1882, claimant completed his four years’ academic course, received his diploma, was thereupon permanently detached from the Academy, was regularly classified in the Navy Register as a “ graduate,” and was paid as suchj precisely as *550all other cadet-engineers bad been since the Act of 1874 went into effect.

The Act of August 5, 1882, provided as follows:

All the under-graduates at the Naval Academy shall hereafter he designated and called naval cadets.

By additional clauses the pay of the naval cadets thus created was regulated, and the ultimate dismissal of nearly all of them provided for.

The only question in this case is whether the claimant by those provisions has been transformed into a naval cadet. Leopold alleges that he is still a cadet-engineer, and sues for his pay as such. On the contrary, it is contended on the part of the defendants that all those cadet-engineers (including the claimant) who had indisputably graduated in 1S81 and 1882 were by this act *ipso facto*transformed into naval cadets, reduped in pay and retroactively deprived of their position as graduates.

Is this a fair construction of the act? No one will deny the absolute right of Congress to legislate upon such matters in any way it sees fit. But what Congress might do and what it does do are by no means identical, nor can we safely argue the one from the other. Certainly such a sweeping inroad as the defendants allege Congress to have made upon the vested rights of these young men must be so clearly shown as to leave no possible doubt of the legislative intent.

4. In this very act Congress fully recognized that a certain number of cadet-engineers were “ graduates,” for there is an appropriation specially made for the pay of “seventy-three cadet-engineers, graduates”, and of this number the claimant was admittedly one. At the'time of its passage, the forty-six cadet-engineers whose status is now in controversy were neither “w?ider-graduates” nor were they *uat*the Academy”; and by no possible torture of language can this clause be forced to embrace them. Congress had just used the word “ graduates” and knew what it meant, and in the very next clause the word *u*under-graduates” is used for the only conceivable purpose of distinguishing the persons designated from “graduates.” It cannot for one instant be supposed that by the use of this word “ under-graduates ” Congress intended to include any of the seventy-three cadet-engineers whom it had in the preceding clause just described as “graduates.” But, unless Congress *551did so intend, then the whole case of the defendants /alls to ground.

5. There is absolutely nothing to indicate that Congress intended to reduce this claimant either in rank or pay. The act undoubtedly intended to bring about a reduction in the Navy, but it was scrupulously regardful of the existing rights of all officers, young and old, for it expressly provided—

That no officer now in the service s.hall he reduced in rank or deprived of his commission by reason of any provision in this act reducing the number of officers in the several staff corps : *Provided,*That no further appointments of cadet-engineers shall be made by the Secretary of the Navy under section three of the Act of eighteen hundred and seventy-four.

As cadet-engineers were appointed by the head of a Department, they are “officers” in the legal and constitutional sense of that word, and there is no discoverable reason why this clause does not cover their case. On the contrary, the *proviso*immediately coupled with it indicates that they were *especially*in the mind of the Legislature. That Congress regarded cadet-engineers, after their entry into service, as officers is shown by the *Act of March*3, 1877, ch. 121 (Suppl. Rev. Stat., 298).

6. The Act of August last made no discrimination in favor of cadet-engineers. On the contrary, it took hold of all cadet-engineers then at the Academy precisely as it took hold of all cadet-midshipmen who had not yet completed their academic course. But it left those who had already graduated precisely as it left the midshipmen who had alrfeady graduated, undisturbed in rank or pay.

7. The defendants’ construction is bas'ed upon the theory ■ that Congress abolished *all*cadet-engineers from the passage

of the Act of August 5, 1882. What Congress did was simply to provide that no more appointments of cadet-engineers should be made. It transformed the under-graduates then *at*the Academy into naval cadets, and it left those who had already graduated from the Academy undisturbed. This, indeed, is no longer open to argument, for the very latest act of Congress in regard to the Navy utterly destroys the opposite theory. In the Naval appropriation Act of. March 3, 1883, Congress expressly provides ;

For pay of the Navy, for the active list, namely: * * * For ‘ * * *sixty-two cadet-engineers, ■ * * **three hundred and thirty-five naval cadets; in all, throe million nine hundred and forty thousand eight hundred dollars.

*552This is an “authentic” interpretation of the disputed provisions of the former act. It is substantially a legislative declaration that that act did *not*transform these cadet-engineers into naval cadets; that it neither degraded them nor abolished them; bat that it left them as a subsisting body in the Navy of the United States, their rights undisturbed and inviolate. *(United States*v. Freeman, 3 How., 550.)

8. Taking the Act of August 5, 1882, either by itself or in connection with other acts, and there is no room for doubt as to the meaning of the words “graduates” and “under-graduates” there employed. The former was undoubtedly derived from the Navy Eegister and the annual estimates for appropriations, in which documents it had come to have a fixed and definite meaning, to which under' such circumstances the courts will adhere. (98 U. S. It., 440.) .

There is therefore little room for doubt that Congress used these terms advisedly, and when it expressly provided that “all the under-graduates at the Naval Academy” should thereafter be “designated and called naval cadets” it meant just that and nothing more. *Fosjoressio nnius est exelusio alterius.*

9. We believe it conceded, however, that the case against these cadet-engineers does not rest on the letter of the statute, but only upon argument to be deduced from certain clauses in the act regulating promotion of naval cadets. It is argued that, inasmuch as Congress has not made explict provision for the promotion of these cadet-engineers, therefore it must have intended to abolish them. It is well-settled law that courts will not by implication extend the provisions of a statute beyond what was clearly expressed when by so doing existing rights will be either violated or destroyed.

Where fundamental rights are overthown, the legislative intention must he expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such an.object. (Smith on Stat., sec. 548.)

The defendants’ construction makes this statute retroactive as to this claimant, and would deprive him of pay as a graduate which he had already acquired by years of labor. But the Supreme Court has expressly decided that—

Even though the words of a statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may hereafter arise, unless the language employed expresses a contrary intention in unequivocal terms. (9 C. Cls., 124.)

*553General terms should be so limited in their application as not to lead to injustice, expression, or absurd consequences; and it will always be presumed that the Legislature intended exceptions to its language which would avoid results of this character. (7 Wall., 482.)

Every word and every provision in the Act of August 5,1882, regulating the promotion and dismissal of naval cadets',- and relied upon in the defense of this case, may be fully satisfied by construing it *prospectively,*as every act must be construed unless the contrary intention “be expressed with irresistible clearness.”

Beading the statute in this light, and we submit it is almpst too clear for argument that this claimant is still a cadet-engineer in the Navy, undisturbed'by the Act of August 5, 1882, and is entitled to his pay as provided by law.

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

1. The question for the court is what is the proper construction of the Act of August 5,1882, and what affect (if any) that act had upon the status of the classes of cadet-engineers who finished their four years’ course at the Naval Academy in 1881 and 1882. " . -

2. The course'of instruction of a cadet-engineer is by law six years, four at the Academy and two on- naval vessels. He cannot bo properly classed as “ graduated” until he has finished the whole course and passed the final examination at the end of six years.

3. The effect of the legislation referred to was substantially to provide that hereafter all vacancies in the line, Engineer and Marine Corps, should be filled from the graduates at the end of their six years’ course. “Hereafter” means all who should not have finished the six years’ course by the end of the calendar year 1882. And all who do not receive appointments as provided in the law shall be honorably discharged.

4. The claimant may not have been, strictly speaking, an “ undergraduate at the Naval Academy” at the date of the act. Strictly *(i. e.,*within the words of the act), the cadet midshipmen of his class were not such undergraduates. Upon a strict construction of the act, none of the cadets who complete the six years’ course in 1883 and 1884 could be transformed into “naval cadets.” ‘ ■

*5545. If claimant is held to be a “graduate” within tbe meaning of the act, he must of necessity be a surplus graduate and must be honorably discharged with one year’s pay.

6. Revised Statutes, section 1394, contemplates a final examination of cadet-engineers by the Academic Board at the end of the six years’ course, to enable them properly and intelligently to “recommend” *(i. e.,*advise) their appointment as commissioned officers.

7. The provision in the act that “no officer now in the service shall be reduced in rank or deprived of his commission by reason of any provision of this act reducing the number of officers in the several staff corps ” relates entirely to the commissioned officers of the staff corps of the Navy, referred to in the three preceding clauses.

8. The appropriation for “seventy-three cadet-engineers - (graduates) ” in the early part of the act was subsequently modified by the following provision: “As much of the money hereby appropriated as may be necessary during the fiscal year ending June thirtieth, eighteen hundred and eighty three, shall be expended for that purpose.”

9. The intention of the last Congress was to cut down the number of commissioned officers of the Navy. The intention of this act was to prohibit all entry into the three corps referred to in it, except through the wicket provided therein. The intention of the legislature as evidenced by contemporaneous legislation is a clear justification of the construction contended for by the defendants.

OPINION.

Scofield, J.,

delivered the opinion of the court:

In 1878 claimant entered the Naval Academy at Annapolis as a cadet-engineer. June 9, 1882, having completed the prescribed term of four years and successfully passed the final academic examination, he received the usual “diploma” or “certificate of proficiency,” and was thereupon detached from the Academy by order of the Secretary of the Navy. Thereafter he was placed upon the Navy Register as a “ graduate,” and became entitled to receive, and, until December 11, 1882, did receive, the increased rate of pay provided for in section 1556 of the Revised Statutes. After that date his pay was reduced to $500 a year. This reduction was based upon a construction put upon some *555portions of the *Naval appropriation Act of August*5, 1882 (22 Stat. L., 286), by the Navy Department, and adopted by the accounting officers of the Treasury. By this construction cadet-engineers who had completed their academic course in 1881 and 1882 were transformed into “ naval cadets.” Claimant, unwilling to abide by this interpretation of the law, in order to obtain, if possible, a judicial construction, brings this suit, nominally, as it is said, to recover the small amount of withheld pay.

Cadet-midshipmen, whose academic course in preparation for the duties of the “line” was required to be six years (Bev. Stat., 1520), and cadet-engineers whose “course of instruction” in preparation for the duties of the Engineer Corps was required to be “ four years at the Academy” and “ two years’ service in naval steamers,” were, prior to the act of August 5, 1882, educated, under their respective titles, for their prospective and respective duties in the Naval Academy at Annapolis. They were paid as follows:

> Midshipmen, after graduation, -when at sea, one thousand dollars; on shore duty, eight hundred dollars; on leave, or waiting orders, six hundred dollars.

> Cadet-midshipmen, five hundred dollars.

> Cadet-engiheers: Before final academic examination, five hundred dollars after final academic examination, and until warranted as assistant engineers, when on duty at sea, one thousand dollarson shore duty, eight hundred dollars; on leave, or waiting orders, sixhundred dollars. (Eev. Stat., § 1556.)

Cadet-midshipmen, during such period of their course of instruction as they shall be at sea in other than practice-ships, shall recen e as annual pay not exceeding $950. (Richardson’s Suppl. to Bev. Stat., 294.)

' The following extracts from the *Act of August*5,1882, ch. 391 (22 Stat. L., 286), includes all that is supposed to affect this case:

> For pay of the Navy, for the active list, namely: * * * sixty-nine chief engineers, one hundred passed assistant engineers, thirty-five assistant engineers, seventy-three cadet-engineers (graduates), * * * one hundred and two cadet-engineers, one hundred and thirty cadet-midshipmen (not graduates); in all, four million forty-eight thousand three.hundred dollars.

> *Provided,*That hereafter there shall he no appointments of cadet-midshipmen or cadet-engineers at the Naval Academy, but in lieu thereof naval cadets shall bo appointed from each Congressional district and at large, as now provided by law for cadet-midshipmen, and all the under-graduates at the Naval Academy shall hereafter be designated and called ‘1 naval cadets; ”

> And from-those who successfully complete the six years’ course, appoint-*556monts shall hereafter be made as it is necessary to fill vacancies in the lower grades of the line, and Engineer Corps of the Navy and of the Marine Corps:

> *And provided further,*That no greater number of appointments into these grades shall be made each year than shall equal the number of vacancies which has occurred in the same grades during the preceding year; such appointments to be made from the graduates of the year, at the conclusion of their six years’ course in the order of merit, as determined by the Academic Board of the Naval Academy; the assignment to the various corps to be made by the Secretary of the Navy, upon the recommendation of the Academic Board.

> But nothing herein contained shall reduce the number of appointments from such graduates below ten in each year, nor deprive of such appointment any graduate who may complete the six years’ course during the year eighteen hundred and eighty-two. And if there be a surplus of graduates, those who do not receive such appointment shall be given a certificate of graduation, an honorable discharge, and one year’s pay, as now provided by law for cadet-midshipmen. * * *

> * * * That the pay of naval cadets shall be that now allowed by law to cadet-midshipmen; and as much of the money hereby appropriated as may be necessary during the fiscal year ending June thirtieth, eighteen hundred and eighty-three, shall be expended for that purpose. **■** *

> That no officer now' in the service shall be reduced in rank of deprived of his commission by reason of any provision of this act reducing the number of officers in the several staff corps: *Provided,*That no further appointments of cadet-engineers shall be made by the Secretary of the Navy under section three of the act of eighteen hundred and seventy-four.

Tbe accounting officers held that under the first proviso in the second paragraph of this law cadet-engineers who had completed their academic course in 1881 and 1882, but had not yet had “ two years’ service on naval steamers,” were still, to be considered “undergraduates” at the Naval Academy, and so became under this law “ naval cadets,” entitled to pay only at the rate of $500 a year. The claimant and the other cadet-engineers, on the contrary, contend that after completing their academic course and receiving diplomas or certificates of proficiency, their connection with the Academy was entirely severed; that they then became “graduates,” and could in no sense be considered “undergraduates at the Naval Academy.”

Upon, the meaning of these two words, graduates and undergraduates, as used in the statutes, the question in dispute must be mainly settled. That these terms might liave been applied technically either to the academic graduation or the completion of “ two years’ service in naval steamers ” may well be admitted. The question to be settled is, not how they might have been property applied, nor even how they were applied in Navy eir-*557cles, but to which period of time Congress intended to apply them in this act.

question it should not be forgotten that the two additional years required to fill up the six-year course of cadet-engineers are not years of study, but of “service." They do not go to sea in practice-ships, nor in other ships, in large numbers, mainly for educational purposes. They are not subject to academic orders, nor are they expected to pursue ■academic studies, but to take charge of and run the engines. Their school exercises are ended and their life-work begun. They are as much in the service and as subject to all its requirements as they ever will be. Wlien at. the end of the two years— or rather at the end of a cruise, which may last three years or more — they are examined, it is for promotion only. This examination is not at the Academy nor before the Academic Board, but is the same kind of an examination that every officer, at each step in his advancement, is required to undergo. So emphatically does the law consider these two years as years of service that it doubles the pay.

In the universities the students who have honorably passed through the prescribed course of study and received certificates to that effect are known and catalogued as graduates. According to the dictionaries, it is a proper designation.' Cadet-engineers who have successfully completed their academic course, passed the closing examination, and received from the Academic Board certificates to that effect, have hitherto been called in Navy parlance “ graduates.” In the official Navy Register, revised and published twice a year, they are ranged under the head of “Graduates.” Under the head of “Date of graduation” the time when they left the .Academy is given. Under the head of “Sea service since graduation”, all sea service after leaving the Academy is recorded. Congressmen, especially those on naval committees, become familiar with these Registers. As every Representative in the House nominates a cadet at the Academy, and naturally takes a deep interest in him and the institution, this classification and designation could scarcely escape his attention. Under these circumstances it is not unfair to presume that in using the terms graduate and undergraduate Congress followed the definition of the schools, the dictionaries, and the Navy Register.

But in arriving at the meaning attached to these words by *558Congress we are not entirely dei>endent upon this presumption. Tlie word “graduate” is twice used in this very law, where, by the connection, its legislative meaning cannot be mistaken. First, in making an appropriation for the pay of these cadet-engineers, to distinguish them from others still in the Academy, it calls them “graduates.” Second, in these words, “nor deprive of such appointment any graduate who may complete the six years’ course in 1882.” If “any graduate” means a cadet who had already completed a six years’ course, it makes very clumsy tautology.' It would be the same as to say “ a graduate who may become a graduate in 1882.” It doubtless refers to cadet-engineers who graduated at the Academy in 1880, and whose two-years’ term of sea-service would expire in 1882.

The *Naval appropriation Act of March*3, 1883, ch. 97 (22 Stat. L., 472), shows very clearly how Congress construed its own act. It makes an appropriation for the pay of sixty-two cadet-engineers. By referring to the Navy Register of July, 1882, it appears that this is the exact number of cadet-engineers who had graduated at the Academy, but were not yet eligible to promotion, or whose promotion had been delayed. It includes the classes of 1880,1881, and 1882. The act then appropriates for the pay of three hundred and thirty-five naval cadets. These constitute the “undergraduates” of the Act of August 5, 1882. It is probably the number of cadet-engineers actually at the Academy added to the number of undergraduate cadet-midshipmen. If Congress had concurred in the defendants’ construction of the law, they, would have made a single appropriation for three hundred and ninety-seven naval cadets. This amounts to a legislative construction of the Act of August 5, 1882. *(United States*v. *Freeman,*3 How., 556.)

In arriving at the meaning of the law, the words “at the Academy,” following “undergraduates,” should not be overlooked. They are words of more definite description, added apparently to preclude all doubt as to what cadets were designated as “undergraduates.” It seems very conclusive of the intention of Congress. It is said, in avoidance of it, that in contemplation of law these graduates, although scattered all over the world, might still be considered “undergraduates at the Academy.” It may, with some propriety, be said that cadet-midshipmen who are sent to sea mainly for instruction, and who return to the Academy at the termination of the cruise for the *559final graduating examination, are in legal contemplation all tbe time “at tbe Academy.” But cadet-engineers wbo have received tbeir graduation certificates from tbe Board, and, by order of tbe Secretary of tbe Navy, bave been forever “detached” from tbe Academy and sent into actual service, in war steamers over all tbe seas, and are never required to return to that institution, can hardly, even in legal fiction, be considered as still “ at the Academy.”

Tbe theory is too intangible to constitute a controlling element in tbe construction of tbe law.

In support of tbe defendants’ position it is said that tbe words graduate and undergraduate might be properly employed to designate either of two events, to wit, graduation at tbe Academy or final graduation after twd years of sea-service. Graduation would scarcely be an apt word to indicate tbe close of two years’ service. From what would they then graduate? Certainly not from sea-service; that continues without change. Not from tbe grade of cadet-engineers, for they do not graduate from that until vacancies occur in the grade above. In tbe Navy Begulations tbe word is once used in tbe sense of defendants’ construction, but even there it is connected with tbe word “finally,” indicating that there has been' a prior graduation at tbe Academy. But the question is not whether in some technical sense undergraduate and graduate might be applied to tbe ending of tbe two years’ service, but1 whether they were so applied by Congress in tbe act under consideration.

It is also suggested by tbe counsel for tbe defendants that tbe protection given to tbe claimant and bis associates by this construction of tbe law would be of short duration, Because upon tbe completion of tbe six years’ course, under tbe surplus graduate clause, they must all be discharged. By a careful examination of this clause it will be seen that tbe classes of 1881 and 1882 are not embraced within it. Being entirely prospective in character, it applies only to tbe surplus of naval-cadet graduates.

It is further said in objection that tbe act makes no provision for tbe promotion of tbe classes of 1881 and 1882. They must remain, so long as this act is in force, as cadet-engineers. This may perhaps be tbe case, but in tbe judgment of tbe claimant, and presumably of bis classmates, that position is better than tbe one to which tbe defendants’ construction would consign *560them; for by that construction they are at once reduced one-lialf in pay, and ordered to an examination in branches of naval education, to which they have given little or no attention, in competition with cadet-midshipmen, who, for six years, under able instructors, have made these branches a special study. Under such disadvantage it is not strange that they anticipate failure. In that event they leave the service Avith mortification to themselves, and to the outside world with apparent though undeserved discredit. Admitting, however, that the hardship of these young men would be somewhat mitigated by the defendants’ position, the court would not for this reason be justified in giving its sanction to a construction whereby the intention of Congress, somewhat obscure in a cursory reading, but upon a careful examination too plain for unbiased mistake, is entirely ignored. We cannot agree to the ruling of the accounting officers of the Treasury, and therefore direct judgment to be entered in favor of the claimant in the sum of $50.50.

Note. — A motion for a new trial was made on behalf of the defendants, and after full argument on the whole case by *Mr. Thomas Simons,*Assistant Attorney-General, and *Mr. F. R. Rowe,*in support of the motion, and by *Mr. George L. Douglass*against it, was overruled by the court, June 11, 1883.