New-York tribune., 1886-01-19
PAY OF NAVAL OFFICERS.
CONSTITUTING A vExED STATUTE.
,vvsnAL DECISIONS BY THE UNITED STATES ST.
PRRME COURT.

80. Case No. OLA. C. Cofey agt. the United States.
IN rror t tho Circuit Court OF Tho United states Tor the
n,,rict OF Kentucky. This Is libel of Information
oad nv the attorney for the United States in the Circuit
,r, for the District OF Kentucky against ten barrels OF
,,. brandy two stills and some other oistilery ap-
naraus ander seizure being forfeited to the United
eta,ss Coey was engaged i'll the dstillcry business
a.d his property seized for alleged violation OF the
Internal Revenue laws. Coey filed claim TO all the
,.rty except one barrel OF the distilled spirits. as
awncr ara an answer TO the information, In which an
wer he denied the allegations Of the information aud
cat M the defence that no had beon previously riei
under criminal information on the same charges ana
fond not guilty. Tho United States flied demurrer To
this because 1t does not state facts sucieht 10
constitute defence The issues OF facts were tred by
n ury which found a general verdict for the United
states The claimant moved to set aside the verdict
alleging as grounds. among others, that the
court had jurisdiction aud that the
Information WAS insufficient. He also moved
Judgment the pleadings Notwithstanding the verdict
The court denied the motion and entered Judgment
condemning the property as forfeited The claimant
then sued out writ Of error to review the Judgment as
sertng: Arst that information is rot sufficient In
law second the Circuit Court had no jurisdiction
of the subec of the action or of the property
seized or the person Of the claimant third that there
was not sufficient monton attachment seizure OF the
property aud valuation OF the goods as required py
law fourth thatit error to submit the case to
of fifth, that was an error to overrule said demurrer
The principal question In the Is to the effect ofhe
Indictment trial. verdict and judgment OF aeqettai set
nm in the claimants answer Justice Blatchiord deliv
cred the opaOn of the Court In holding that such Judg
men OF acauital bar to this suit and reversing the
Judgment Circuit Court aud remandng the case 10
that court direction 10 enter Judgment for the
claimants dsnissar the libel aud TO take such proceed
,ns in regard to restoring The property attached as may
be proper
No 92-same parties in error from same court
libel of information filed by The Attorney OF the Uniteo
States for the district OF Kentucky against
ore ooppor still and other disery apparatus under
seizure for violation OF the Internal Revenue laws In
this case the claimant up the defence that CRIMINAL
snit had previously been brought against him ana tht
he had pleaded guilty and had been sentenced 10 pay
1ne Of %5OO He pleaded this fact as bar 10 paints
claim in the The case was tried by a jury wheh
rendered general verdict for the United States Coney
then moved for a Judgment Notwithstanding the YER
dict and later moved 10 aside the verdict anc IN
arrest OF Judgment Tho court overruled the motion anu
entered a Judgment condemning the property as lot
feited To reverse this Judgment the plauh sued OUT
writ Of error The supreme Court OF the United sta'es
affirmed the judgment of the lower court
No. s69-George p Hunt against the United states
Appea from the Court of Claims The appellant brought
this suit Court OF Claims TO recover balance OF
pay due him. he alleged, from the Unitei states Inc
facts were as follows On October 25. 1865 the appel
liant first assistant engineer IN tho unlteu oia'os
Navy and served that grade two years at sea ON
board naval steamer At that date there was no va
esncy in the grade OF assistant engineer 10 which he
could be promoted aud none occurred until July 4,
1880 On October IL, 1880, he was ordered to
report for examination for promotion 10 the grade OF
chief engineer and having been found qualified Oh Dc
ccmber 90 1880, was promoted the grade OF chief
engineer and received the OF that grade from July
a. 1880 From October 25 1865 10 July 1, 1880 he re-
ceived the pay OF first assistant engineer only. lie
claimed for the period between those Two dates ne
was entitled the pay of chief engineer and brought
suit for that period the difference between
the pay of assistant engineer and of chief en-
rpeer Tho Court of Claims dismissed the petition and
lie appealed 1t appears that from october % 1865 TO
July a. $50, there vacancy to which he could
have been promoted, even had he been examined anu
found qualified lie Insists that soon as he mad per-
formed two years service at lie had right TO be ex
anined for promotion Justice Wood delivered the opin-
ion of the Court He held that If the appellant Is en-
titled to any OF the increased pay claimed the time for
which should be computed is cut short by section
OF the Act June 22 1874, which provides that any
officer OF the Navy who may be promoted IN course 20
I'll vacancy in the higher grade shall he entitled
to the pay of the grade which he is promoted from the
date he takes rank therein II 1t be subsequent 10 the
VACANCY he ia appointed to M. lie held that
this section clearly cuts off by implication any
Increase OF pay until promotion 80 that' IL u DC
considered that could have any retroactive eject
/: at least nts the right OF appellant to any Increase
OF pay to tho period between October 5 l5GS when the
t,x vears servics at sea were completed the pas
SAGE of the sct claim Of the appellant is based on
Section l6 OF the Act OF July lG lsG2 which provides
that henever any officer OF the Navy OF class subject
by regulation to examination before promotion to
higher grade shal have been absent dut 1T the time
when he should have been examined, aud shall have
been found auallaed at a subsequent examination the
increased pay which lie may be entitled shall
be allowed him from the date when he would have re-
ceiyed Il had lie been found qualified ut the tins his cK
animation should have taken place. The court holds
that appellant does not aver in his petition. and 1t Is
not found by Court Of Claims that he was absent on
duty at the time when he should been examiIed,
neither does appear time after the expra
his years service at October 25 lsGs
down to the time of his examination on October IL
1880, he was absent on duty. But We are OF the
opinion that it unwarranted construction Of the
Statute hold that first assistant engineer
has served two years at sea on board naval
steamer he Is entitled as matter Of right
TO immediate examination, and II aIterward exam
ined and promoted demand the pay OF chief engineer
the time when he completed his two years service
at We think the law very properly construed by
Mr. wele Secretary OF the Navy in his letter OF May
IL, 1864, to the Fourth Auditor, in which he said
There may be sone obscurty in the wording OF the
10th section OF the act OF July l6 1862 but o evident
and purpose OF the law lie prevent officer
being deprived by absence duty OF the increased pay
which promotion would nave given him. In other
words the meaning OF the law is that officer Is de-
layed in his has examined
aud his examination been delayed absence op
duty, promoted he shall have the pay OF
his new grade from the time when his examination
should have taken place II appears that mis-
construction OF the law practice up In the Navy
Department by which promoted officers allowed
the pay Of their grade from the time they were
eligible for examination which corrected by the
hecretary Of the Navy in 1877. We why
practice unwarraned either by law the regulations
the Navy and which has been discontinued fOr
years should be revived and given effect In this
Judgment affirmed"
No 741-Samuel A. Waling against the people OF the
State OF Michigan. In to the Supreme Court of
Michigan. In June 1883. Waing. tho plaintiff in |