#### JOHN THORNLEY v. THE UNITED STATES.

No. 12800

January 29, 1883.

Tlie claimant, a medical director of tlie Navy, was retired June 1, 1861, for “ physical incapacity to perform, sea-service.” By the special *Act of April*7,1882 (22 Stat. L., 41, ch. 72), he was to be considered as having been retired from June 1,1861, “onaccount of physical incapacity originating in the line of duty,” and was to be paid “the rate of retired pay of the grade in which he was retired, prescribed by Rev. Stas, § 1588,” from the passage of the, act therein incorporated.

The rate of pay by that act is 75 per cent, of the sea-pay of the grade or rank held at the time of retirement.

The claimant was retired during the second five years of his service, the sea-pay for that grade being $3,200, 75 per cent, of which he has received. (Rev. Stat., 5 1556.)

Having been in service, though on the retired list, more than twenty years, he claims that his retired pay increased each period of five years up to twenty years, as provided for officers on the aotive list by Rev. Stat., $ 155C.

Held :

I.Longevity pay for officers of the Navy was first established by law in 1835. It was then allowed only' to surgeons. The subsequent acts extending it to other officers stated and reviewed.

II.Officers of the Navy on the retired list are not entitled to increase of pay by reason of longevity, while on that list. Their retired pay is fixed at 75 per cent, of the sea-pay of the grade or rank held by them at the time of retirement.

III.The periods of five years’ service mentioned in Rév. Stat., § 1556, for increase of pay are *“*grades” within the meaning of Rev. Stat., § 1588, fixing the pay of retired officers at 75 per cent, of the sea-pay of the grade or rank held at the time of retirement.

*112This case involves the construction of Revised Statutes, §§ 1556,1558, relating to the pay of retired officers of the Navy, and the special *Act of April*7, 1882, ch. 72 (22 Stat. L., 41), passed for the relief the claimant.

The following are the facts found by the court. The provisions of the statutes are stated in the opinion of the court.

I. On the 3d of September, 1855, the claimant was commissioned a surgeon in the Navy.

II. On the 1st of June, 1861, on account of physical incapacity to perform further service at sea, he was jdaced on the retired list as a surgeon under the 3d section of the *Act of February*21, 1861 (12 Stat, L., 147, 150, ch. 49).

III. From March 3, 1873, to November 16,1882, he has been j>aid a,t the rate of $2,400 per annum; and the accounting officers of the Treasury have refused to allow him any more than that amount.

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

1. .By sjiecial act and by *Act of March*3,1873 (17 Stat. L., 547; Rev. Stat., § 1588), claimant is entitled to three-fourths of “the sea-pay provided by section 3, *Act July*15, 1870 (16 Stat. L., 330; Rév. Stat., § 1556), for the *grade or rank*which he held at the time of his retirement.” “Grade” and “rank,” when used to fix pay, are synonymous, and in legislative parlance mean “ title or office,” as expressed by an officer’s commission. (10 Stat. L., 616; 12 ibid., 586; 13 ibid., 304; Rev. Stat., §§ 1226, 1262,1263.) “ Grade” has this meaning in all the statutes, *except*Revised Statutes, §§ 1129, 1390, where it denotes relative position, which is the frequent meaning of “rank.” Nowhere does either word refer to the “ lustrum,” or period from date of commission, which governs pay within the grade, under section 3, *Act July*15,1870, Rev. Stat., § 1556.

2. This accords with executive construction down to March 3,1873. Under section 5 of the Act of July 15,1870, giving all retired officers half the *highest*pay of the “ grade corresponding to the grade ” held by them at retirement, claimant and all other retired surgeons, no matter in what *lustrum*retired, received half their highest pay, viz, half the pay of a surgeon after tweuty years from date of commission. The Act of 1873, *113passed with presumptive knowledge of this construction, changed “highest pay” to “sea-pay,” and the rate from half to three-fourths, but did not alter the meaning of “ grade.”

3. Claimant is therefore entitled to three-fourths of the sea-pay of a surgeon, that being “ the grade or rank which he held at the time of his retirement.” That sea-pay being graduated in periods of five years from the date of commission, the percentage must also be graduated accordingly, and claimant’s retired pay must be calculated by ascertaining the date of his commission, and giving him three-fourths of the pay to which he would now be entitled if on duty at sea. *(Tyler*v. *United States,*16 C. Cls. B., 223 j 105 U. S. E., 244.)

4. Defendants insist that the words “ on the active list,” in section 3 of the *Act of*1870 (Bev. Stat., § 1556), limit longevity benefits to officers on that list. But those words qualify the whole-pay table, of which longevity pay is only an incident. If they exclude retired officers from longevity, they exclude them from pay altogether.

5. Defendants propose to strike out “ grade or rank” in section 1588, and give retired officers three-fourths of “the sea-pay which they held at the time of their retirement.” This is destruction, not construction, and would discriminate against all officers retired before 1870, when sea-pay was largely increased. The court rejected a similar suggestion in *Tyler*v. *United States.*The law is protected from such violence by the words “ provided by this chapter,” after “ sea-pay.”

6. Longevity pay is meant to provide for increasing expenses of advancing years, to which retired and disabled officers are peculiarly liable; not as compensation for increased usefulness on account of experience. Since 1828, time passed on leave, waiting orders, and furlough has been counted as well as time spent on duty. Disabled medical officers were granted longevity by *Acts of April*23, 1800 (2 Stat. L., 53), *May*24, 1828 (4 Stat. L., 313), and *March*3, 1835 (Id., 755). The Act of February 21,1861, under which claimant was retired, gave him “leave pay,” which was graduated under the Act of 1835. Army officers, under Act of of February 28,1881, count service in the Army; and Navai officers, under Naval appropriation Act of August 5, 1882, count service in the Navy. In all this there is no element of increased usefulness. Section 1593 of the Bevised Statutes gives officers retired on furlough one-half *114leave pay, which is graduated by section 1556. This court and the Supreme Court have decided that retired Army officers have longevity pay, and Congress has not changed the law. Why does not the rule apply to naval officers'?

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

1. This case is not governed by the ruling in *Tyler’s Case*(16 C. Cls. R., 223). In that case the law (Rev. Stat., § 1276) declared that *“*officers retired from active service shall receive 75 per centum of the pay of the rank upon which they were retired.” Revised Statutes §§ 1261, 1262, and 1263, provide for five different rates of pay, to wit, the original rate received upon promotion and four distinct percentages to be added, respectively, for each five years of service up to twenty years as a maximum. The ruling in the Tyler Case was that section 1262 contains a grant to all the grades of officers mentioned of the longevity benefit recited therein. The court held that retired officers were in the service within the meaning of section 1262, and refused to permit the accounting officers to attach a limitation not found in the law.

The case at bar is different. Section 1556 does not provide for longevity pay in the same sense as section 1262, It fixes five rates of pay (not a percentage of increase on pay) for each lustrum of service. But in any case its provisions are expressly limited to officers of the active list. The section begins as follows:

Sec. 1556. Tlio commissioned officers and warrant officers on. the active list of the Navy of the United States, and the petty officers * * * shall he entitled to receive annual pay at the rates herein stated after their respective designations.

Here is an express limitation such as was not found in the Tyler Case.

The longevity benefit is partly in the nature of payment and partly gratuity. ' In this respect it is similar to the pension. *(Donelly’s case,*17 0. Cls. R., 105.)

As it is purely voluntary, its payment must be made and accepted in exact conformity with the terms of the grant, and must be subject to all the limitations, conditions, and exceptions therein contained.

*115Here the grant is limited in terms to officers on the active list. The claimant, being a retired officer, is expressly excepted from its provisions.

2. The accounting officers construed the language of the statute to mean the pay of the grade or rank for the lustrum in which the officer retired, if he belonged to a class of officers whose pay was regulated by length of service. This was plainly the proper legal construction.

3. The longevity benefit, so called, contained in section 1556 cannot be added to the provisions of section 1588, or construed as carried on and attached to that section. The former section contains an express limitation to the contrary. The law contains an absolute limitation of this longevity benefit to active-service officers, and creates an express exception of retired-service officers from such benefit.

OPINION.

Drake, Ch. J.,

delivered the opinion of the court:

In section 1 of the *Act of March*3, 1873 (17 Stat. L., 547, ch. 230), the following provision was adopted:

> Those officers on the retired list, and those hereafter retired, who were, or who may he, retired after forty years’ service, or on attaining the age of sixty-two years, in conformity with section one of the act of December, eighteen hundred and sixty-one, and it's amendments, dated June twenty-fifth, eighteen hundred and sixty-four, or those who were or may he retired from incapacity resulting from long and faithful service, from wounds or injuries received in the line of duty, from sickness or exposure therein, shall, after the passage of this act, he entitled to seventy-five per centum of the present sea-pay of the grade or rank which they held at the time of their retirement.

' With a slight change of words, but not of meaning, this is now embodied in section 1588 of the Revised Statutes.

By its terms the claimant was not entitled to the seventy-five per cent, rate of pay; for the .physical incapacity to perform further service at sea, on account of which he had been retired, had not been found to have resulted from long and faithful service, from wounds or injuries received in the line of duty, or from sickness or exposure therein.

Congress, however, passed, April 7,1882, an act for his relief (22 Stat. L., 41, ch. 72), as follows:

> That Medical Director John Thomley, United States Navy, he considered as having been retired from active service as a surgeon, and placed on the *116retired list of officers of tiie Navy, June first, eighteen hundred and sixty-one, on account of physical incapacity originating in the line of duty; and that the accounting officers of the Treasury be, and they are hereby, authorized and directed to allow him the rate of retired pay of the grade in which he was retired, prescribed by section fifteen hundred and eighty-eight, Revised Statutes, for officers so retired; and the said accounting officers are hereby further authorized and directed, in adjusting the account of said John Thornley, to allow and pay to him the difference between the pay he has been allowed as a surgeon on the retired list since the passage of the act apirroved March third, eighteen hundred and seventy-three (section fifteen hundred and eighty-eight, Revised Statutes), and that to which he is entitled under that act as having béen retired as a surgeon for incapacity originating in the line of duty; said sum to be paid out of any money in the Treasury not otherwise appropriated.

The chief mandate of this act, and that which affects the present case, is, that the claimant shall be allowed the rate of retired pay of the grade in which he was retired, prescribed by section 1588 of the Kevised Statutes for officers retired on account of physical incapacity originating in the line of duty. That rate of pay is seventy-five per centum of the sea-pay of the grade or rank which he held at the time of his retirement, as that sea-pay existed March 3,1873, and has since existed.

By the *Act of July*15, 1870 (16 Stat. L., 321, 331, ch. 295), and by section 1556 of the Kevised Statutes, the highest pay of surgeons in the Navy, *i. e.,*their sea-pay, was fixed as follows:

1. During the first five years after date of commission, $2,800;

2. During the second five years from such date, $3,200;

3. During the third five years from such date, $^,500;

4. During the fourth five years from such date, $3,700; and

5. After twenty years from such date, $4,200.

The claimant having been retired during the second five years after date of commission, the act for his relief entitled him, at least, to seventy-five per cent, of the sea-pay of a surgeon in that period of his service. This amount he has received for the whole period from March 3,1873, to the time when this suit was brought.

He therefore has no claim unless he is entitled to .longevity pay; that is, the increase of pay which takes place at the end of fixed periods of service in the same grade. At the trial the claimant relied mainly on the recent case of *Tyler*v. *The United States*(16 C. Cls. 223, and 105 U. S. R., 244) in support of his right to this pay; but that was a case of an Army officer, and the statute governing it is so different in terms from that in*117volved in this case that we do not consider that decision applicable here.

The officers of the Navy are divided into two classes — those on the active list, who perform all the duties, bear all the responsibilities, and suffer all the privations attendant on the naval service, at sea or on shore, at home or abroad, in peace or in war, and therefore have higher pay and greater privileges $ and those on the retired list, who have no responsibilities, can have no duties assigned them except in time of war, and have no privations except enforced inaction andreduced pay. Among the privileges of the former is this longevity pay. From the formation of the Navy till 1835 it had no existence, and was then authorized only as to surgeons. (4 ¡Stat. L., 755, ch. 27.)

Down to 1860 it was not allowed to other officers. Men grew old as lieutenants, with no increase of pay from the day they became such till they reached the period of promotion to a higher grade. In that year the longevity pay was extended to captains, commanders, lieutenants, engineers, boatswains, gunners, carpenters, and sailmakers (12 Stat. L., 23, ch. 67), and in 1870 to all grades of officers on the *active*list, except midshipmen (16 Stat. L., 321, ch. 295); and so it remains to this day.

There was, no doubt, an underlying principle and purpose in the introduction of longevity pay into the Navy. We think it was intended, *first,*to induce men to enter the Navy and remain in it for life; *second,*to remove the depressing influence of long periods of service in one grade without an increase of pay; *third,*to compensate for increased professional knowledge and efficiency in officers, by increasing their pay in advance of promotion. If these views are correct, the whole basis of longevity pay is the officer’s capacity for duty, and his performance of it. In other words, longevity pay is for longevity in actual service. Upon these grounds alone we should consider that longevity pay ought to be confined to officers on the active -list. But it is, in fact, so confined by the very terms of the statute. When it is, in words, given to officers on that list, it is a clear case for the application of the familiar maxim *expressio unius est exclusio alterius;*and we have no right to resort to presumptions or constructions to extend its benefits to another class of officers, who, whether justly or not, have been withdrawn from the active, and placed on the retired, list, and forbidden to be employed on any duty in time of peace. To in*118crease *their*pay every five years would involve tlie incongruity of creating a longevity pay for longevity in doing nothing. In our opinion there is no foundation for the claim that retired officers in the Navy are entitled to longevity pay.

This disposes of the claimant’s case. He does not claim that up to the time of his retirement he was entitled to any higher rate of pay than that allowed to a surgeon on the active list, in the second five years after date of commission, $3,200; and he admits that, since March 3, 1873 he has been paid seventy-five per cent, of that rate. He is entitled to that and no more j and his petition must be dismissed.