Under the Act of March 3, 1883, c. 97, 22 Stat. 473, an officer
in the Navy, who resigns one office the day before his appointment
to a higher one, is only entitled to longevity pay as of the lowest
grade, having graduated pay, held by him since he originally
entered the service.
This was a claim by a professor of mathematics in the Navy for
$32.87, alleged to be due him for longevity pay from November 11,
1890, to November 30, inclusive. The petition alleged that during
that period he had been allowed and paid at the rate of $2,400 per
annum, being the shore pay of a professor of mathematics in the
first five years after the date of appointment, whereas, as he
contended, he should have been paid at the rate of $3,000 per
annum, being the pay of a professor of mathematics in the third
five years from the date of appointment, by reason of his prior
service in the Navy from September 22, 1876, to November 10, 1890,
by virtue of the provision of the naval appropriation Act of March
3, 1883, c. 97, which is as follows:
"And all officers of the Navy shall be credited with the actual
time they may have served as officers or enlisted men in the
regular or volunteer army or Navy, or both, and shall receive all
the benefits of such actual service in all respects in the same
manner as if all said service had been continuous and in the
regular Navy in the lowest grade, having graduated pay, held by
such officer since last entering the service, provided that nothing
in this clause shall be so construed as to authorize any change in
the dates of commission or in the relative rank of such officers,
provided further that nothing herein contained shall be so
construed as to give any additional pay to any such officer during
the time of his service in the volunteer army or Navy."
22 Stat. 473.
The petition also alleged, and the Court of Claims found,
Page 151 U. S. 363
following facts:
"Claimant was appointed cadet midshipman September 22, 1876.
Graduated June 22, 1882, and promoted to midshipman the same day.
Commissioned ensign June 26, 1884. Resigned November 10, 1890, and
resignation accepted, to take effect the same day. November 11,
1890, appointed professor of mathematics, to rank from November 1,
1890. Accepted the appointment and took the required oath of office
the same day. He was given credit, upon his commission as ensign,
for his services as cadet midshipman and as a midshipman, and was
paid the pay of an ensign after five years of service, from June
26, 1884, to the date of his resignation. He has not been allowed
credit under the Act of March 3, 1883, in the lowest grade having
graduated pay, since he entered the Navy as professor of
mathematics by appointment as aforesaid."
Upon these facts, the Court of Claims decided as a conclusion of
law that the claimant was entitled to recover the sum claimed, and
gave judgment accordingly. T he United States appealed to this
Court.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The theory of longevity pay was well stated by Chief Justice
Drake, speaking for the Court of Claims, in an opinion cited by
both parties in this case, in which he said:
"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
Page 151 U. S. 364
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."
Thornley v. United States, 18 Ct.Cl. 111, 117.
Accordingly, a retired officer is not entitled to have active
service credited in regulating his pay after his active service has
ceased.
Thornley v. United States, 113 U.
S. 310, and 18 Ct.Cl. 111;
Roget v. United
States, 148 U. S. 167.
But every officer in active service is entitled, by the Naval
appropriation Act of March 3, 1883, c. 97, to be credited with the
time of his actual service in the Navy in any grade
"as if all said service had been continuous and in the regular
Navy in the lowest grade having graduated pay held by such officer
since last entering the service."
22 Stat. 473.
The whole aim and scope of the act are to give the officer, in
the grade held by him after its passage, the benefit of the whole
time of his actual service and to fix the rate of increased
compensation by the lowest grade having graduated pay held by him
"since last entering the service."
Barton v. United
States, 129 U. S. 249, and
23 Ct.Cl. 376;
United States v. Foster, 128 U.
S. 435. The act is as applicable to those officers whose
actual service has been continuous as to those who have actually
served at two or more distinct periods. If an officer has been
twice in the service, the grade, the pay of which is the test of
computation, is the lowest held by him since entering the service
for the second time.
United States v. Rockwell,
120 U. S. 60, and
21 Ct.Cl. 332. But if he has entered the service but once, his
first entry is to be taken as his last entry within the meaning of
the statute.
United States v. Mullan, 123 U.
S. 186;
United States v. Green, 138 U.
S. 293.
By section 1556 of the Revised Statutes, fixing the rate of pay
of officers in the Navy, the pay of cadet midshipmen or of
midshipmen is not graduated by length of service, but the pay of
ensigns, as well as of professors of mathematics, is so
graduated.
This claimant was continuously in active service from
September
Page 151 U. S. 365
22, 1876, to November 10, 1890, first as cadet midshipman, then
as midshipman, then as ensign. On November 10, 1890, he resigned
the office of ensign, and his resignation was accepted to take
effect on the same day. On the next day, November 11th, he was
appointed professor of mathematics, to rank from November 1, and
immediately accepted the appointment, and took the oath of
office.
There is no doubt that the time with which he is to be credited
began on September 22, 1876, the date of his appointment as a cadet
midshipman.
United States v. Hendee, 124 U.
S. 309;
United States v. Baker, 125 U.
S. 646;
United States v. Cook, 128 U.
S. 254.
The controverted question is as to the grade by which his
longevity pay as a professor of mathematics is to be computed, and
this depends upon the question whether the date of his "last
entering the service" is the date of his appointment as professor
of mathematics, in which case the pay of that office is the test;
or the date of his original appointment as cadet midshipman, in
which case the test is the pay of an ensign, that having been his
lowest grade with graduated pay. The question is, in short, whether
his actual service was for two distinct periods or for a single and
continuous period of time. This Court is of opinion that, in
substance and in law, it was for one continuous period. His express
resignation of the lower office the very day before his appointment
to the higher office, and when he must have known of and counted
upon the coming appointment, was evidently tendered with no
intention of leaving the service, and was but equivalent to the
resignation which the law would have implied from his acceptance of
the higher office. The fact is therefore immaterial (which might
otherwise be significant) that his new appointment was to rank from
a date before his resignation of the old one. If such a formal
resignation were sent in for the purpose of eluding the statute and
claiming longevity pay on the higher scale, the attempt would be as
unbecoming in the officer or his advisers as it would be
ineffectual to charge the United States.
The result is that the longevity pay to which the claimant
Page 151 U. S. 366
is entitled since his appointment as professor of mathematics
(as before this appointment) is that of ensign only, that having
been "the lowest grade, having graduated pay held by such officer
since last entering the service" within the meaning of the
statute.
Judgment reversed, and case remanded for further proceedings
in conformity with this opinion.
