The daily union. [volume] (Washington [D.C.]) 1845-1857, 1855-12-28

II is admitted in this that the facts correctly
stated by the claimant according TO the endorsement BY
the Solicitor the original petition 1t appears that the
claimant the senior lieutenant board the frgae
Columbia from the 18th of April 1893, to the 28th OF
June l840 during which time Commodore Read command
ed the United States naval forces in the East Indies OF
which the Columbia formed part and that he stood to-
wards Commodore Read in the relation Of captain Of the
Columbia, and actually performed the duties of captain
during the period above mentioned. The claimant alleges
that he should be allowed the difference between the pay of
lieutenant and that of captain for the period during
which he performed the duties Of captain
The first section of the act Of March 3d. 1895, ST. at
Large 1861 provides that Officers temporarily performing
the duties belonging to those of higher grade shall
cese the compensation allowed to such higher grade while
This provision remained in force until the 26h of August
1872 when by the 18th section OF the act Of that date
ST. at Large, $780, It modified follows: Whenever
officer shall perform the duty of higher grade, by
order of the Secretary of the Navy orhe commander OF
fleet squadron, ship acting singy foreign SER
vice such officer shall be entitled to receive the pay Of
such higher grade during the time be performs the duty in
that grade and LONGER and allowance shall be made
for performing such service hereafter unless so ordered
of the act Of June nth, ls44 Is St at Large 7o3 but the
of February 26th S45 provided that the Sd section
of June l7th 1874 should be applicable to
officers on foreign stations until after the receipt by them
AS the claim is founded upon the performance by the
claimant of the duties Of captain from the 18th Of April
ls35 the 28h of June S4o prior to the passage of the
Angus, 26th s42 his right the compensation which
he seeks depend the act Of March 3D. 1885, which
in force during the period mentioned.
BY the act Of 1885 any officer performing the duties OF
higher grade Is entitled to the pay of the higher grade
without any reference to his having been ordered to per-
form such duties by bis superior If he performs the du
ties the says in express TERMS that be shall have the
increased pay By the l2h section of the act of August
sa2 il is provided that he shall not be entitled to the in
creased pay unless be has been ordered perform the du
ties OF higher grade by the Secretary of the Navy the
commander OF fleet squadron ship acting singly
foreign service The difference between the two acts
simply that by s act OF March, 1895, the perform
of the duties entities the officer 10 the increased pay
while by the Of August 1872 in order to be thus ent
tied be have been ordered to perform the duties by
one of the superior officers mentioned The last act
intended limit the former by requiring for the fu
tnre special order entie the officer to the increased
pay and il does not deprive him of any right which had
become vested in him by the act of 1885.
II appears that for part of the time during which
Lieutenant Magruder per!onea the duties Of captain OF
the Columbia Commodore Re absent from the ship
on shore Macao For this period the claimant has been
allowed the pay Of captain. The reason given for re-
fusng allow him such pay during the remainder OF the
period because the Navy Department had offered to
der captain to the Columbia previous 10 her sailing,
which offer not accepted.
II is very easy TO perceive how Commodore Reads
declining the offer captain to the Columbia could a
feet the rights which another person might subsequently
acquire under act Of Congress- II true, general
statute may waive IT. but he rights belonging
would have been entitled TO any right personal 70 himself
dependent his acceptance Of the offer to order cap
tain to the Columbia, i would have been competent for