While the court may not add to or take from the terms of a
statute, the main purpose of construction is to give effect to the
legislative intent as expressed in the act under consideration.
The Navy Personnel Act undertook to equalize the pay of naval
officers with those officers of the Army of equal rank as to duties
properly required of a naval officer, and it has no operation to
provide pay for services peculiar to the Army.
A lieutenant in the Navy serving as aid to a rear admiral is
entitled to the additional two hundred dollars allowed to a
lieutenant serving as aid to a major general under § 1261,
Rev.Stat., but he is not entitled to the mounted pay allowed to the
army lieutenant serving as such aid under § 1301, Army
Regulations.
This case was tried in the Court of Claims upon a petition filed
to recover pay for services in the United States Navy, rendered by
the defendant in error while he was a lieutenant of the junior
grade, and acting as aid to Rear Admiral Watson, then serving with
the rank of rear admiral in the nine higher numbers of that grade,
and, under section 1466 of the Revised Statutes, entitled to rank
with a major general in the Army. The claimant alleges that he
should have received from the first day of July, 1899, to the
eighth day of September, 1899 --
Page 196 U. S. 328
Pay of a first lieutenant in the
Army, being the grade corresponding
to lieutenant, junior grade, in
the Navy, under Rev.Stat. § 1261 . . . . . . $1,500
Longevity pay under Rev.Stat. § 1262,
for second five years of service . . . . . . 150
Pay as aid to rear admiral of
corresponding grade to major
general, under Rev.Stat. § 1261. . . . . . . 200
Mounted pay due under Army
Regulations of 1895, paragraph 1301, to
"authorize aids duly appointed". . . . . . . 100
Longevity pay upon the last two
items, under Rev.Stat. § 1262. . . . . . . . 30
------
Total. . . . . . . . . . . . . . . . . . . $1,980
That, from September 9, 1899, to September 8, 1900 he was
entitled to pay as follows:
Pay of a first lieutenant in the
Army Under Rev.Stat. § 1261 . . . . . . . . $1,500
Longevity pay under Rev.Stat. § 262, for
third five years of service . . . . . . . . 300
Pay as aid to rear admiral of corresponding
grade to major general, under Rev.Stat.
§ 1261 . . . . . . . . . . . . . . . . . . . 200
Mounted pay due under Army Regulations
of 1895, paragraph 1301. . . . . . . . . . . 100
Longevity pay on the last two items
under Rev.Stat. § 1262 . . . . . . . . . . . 60
------
Total . . . . . . . . . . . . . . . . . . . $2,160
He received pay during the period in controversy at the rate of
$1,800 per annum, being from July 1, 1899, to September 8, 1899,
the rate of pay granted by statute, Rev.Stat. § 1556, to a
lieutenant, junior grade at sea during his first five years in that
rank, and for the period from September 9, 1899, to September 8,
1900, being the rate fixed by Rev.Stat. § 1261, for a first
lieutenant not mounted, with the longevity allowance of the
statute, § 1262, for the third five years of service, and he
claims that, in addition to the amount allowed,
Page 196 U. S. 329
he is entitled to pay or allowance as aid to a rear admiral;
also, mounted pay due for such service, with the longevity pay
arising from the items in question. In all, he claims the sum of
$394.
The Court of Claims, upon the hearing, made the following
findings of fact:
"The claimant entered service in the United States Navy on the
9th day of September, 1899, and from the 1st day of July, 1899,
until the 8th day of September, 1900, was a lieutenant, junior
grade, in the Navy, and an aid to Rear Admiral J. C. Watson; Rear
Admiral Watson was at that time one of the nine higher numbers of
the grade of rear admiral, and was entitled, under section 1466 of
the Revised Statutes, to rank with a major general in the United
States Army. During said period, claimant was paid at the rate of
$1,800 a year."
And, as conclusions of law, held:
"Upon the foregoing findings of fact, the court decides, as a
conclusion of law, that the claimant recover judgment of and from
the United States in the sum of three hundred and ninety-four
dollars ($394)."
From the judgment of that court, the United States appeals to
this Court.
Page 196 U. S. 331
MR. JUSTICE DAY delivered the opinion of the Court.
The decision of this case turns upon the answers to two
questions arising under the facts stated: first, was the claimant
entitled to the extra $200, the same as allowed an aid to a major
general in the Army? Second, was he entitled to the "mounted pay"
as allowed to the major general's aid?
Page 196 U. S. 332
The Navy Personnel Act, so called, has been so frequently before
this Court in recent cases as to require little general discussion
of its objects and purposes.
Rodgers v. United States,
185 U. S. 83;
White v. United States, 191 U. S. 545;
Gibson v. United States, 194 U. S. 182;
United States v. Thomas, decided at this term,
195 U. S. 418.
As pointed out in the opinion in the last-named case, while the
Act of July 16, 1862, Revised Statutes, § 1466, had fixed the
relative rank of Army and naval officers, no provision for
similarity of pay was made until the passage of the Navy Personnel
Act, 30 Stat. 1004, which act, while providing against a reduction
of then existing pay of commissioned officers of the Navy,
undertook to equalize the pay of naval officers (theretofore
generally below that paid to officers of corresponding rank in the
Army) with that of officers in the Army of equal rank. Under the
Act of July 16, 1862, rear admirals ranked with major generals.
Section 13 of the Navy Personnel Act provides:
"That after June 30, 1899, commissioned officers of the line of
the Navy and of the Medical Pay Corps shall receive the same pay
and allowances, except forage, as are or may be provided by or in
pursuance of law for the officers of corresponding rank in the
Army."
The claimant, as lieutenant of the junior grade in the Navy,
corresponded in rank with a first lieutenant in the Army (Revised
Statutes, § 1466), the rank of "master," named in § 1466,
being subsequently changed to lieutenant, junior grade. 22 Stat.
472. By section 1098 of the Revised Statutes, it is provided that
each major general shall have three aids, who may be chosen by him
from the captains or lieutenants of the Army. First lieutenants,
officers of the Army, under section 1261 of the Revised Statutes,
are entitled to pay as follows:
"The officers of the Army shall be entitled to pay herein stated
after their respective designation: . . . first lieutenant,
mounted, sixteen hundred dollars a year; first lieutenant,
Page 196 U. S. 333
not mounted, fifteen hundred dollars a year; . . . aid to major
general, two hundred dollars a year, in addition to the pay of his
rank."
For each five years of service, it is provided in section
1262:
"There shall be allowed and paid to each commissioned officer
below the rank of brigadier general, including chaplains and others
having assimilated rank or pay, ten percentum of their current
yearly pay for each term of five years of service."
The contention of the government is that, while the pay of naval
officers is made to correspond with that of Army officers of like
rank, the naval officer assigned to duty as aid may not receive the
$200 additional pay, as it is not pay on account of rank, but on
account of service. But we think this is too narrow a construction
of the terms of the act, in view of its intent and purpose. For,
while we may not add to or take from the terms of a statute, the
main purpose of construction is to give effect to the legislative
intent as expressed in the act under consideration. An aid to a
rear admiral renders services similar to those rendered by an aid
to a major general in the Army. The naval aids are appointed under
paragraphs 343 and 345 of the Naval Regulations of 1895, which
are:
"Sec. 343. The chief of staff, flag lieutenant, clerk, and aids
shall constitute the personal staff of a flag officer."
"Sec. 3459. (1) A flag officer may select any officer of his
command to serve as flag lieutenant or clerk, provided his grade
accords with the rules laid down in article 344. (2) He may also,
when necessary, select other line officers junior to the flag
lieutenant to serve on his personal staff as aids, but shall not
assign naval cadets to such duty."
They are selected for like service, and it is admitted that
there would have been reason for a like express statutory provision
in their favor as to compensation. The sum of $200 is allowed to an
aid to a major general in addition to the regular pay of his rank.
It is allowed as payment for the additional service imposed.
Bearing in mind the purpose of the act to give the same
compensation to corresponding officers of the
Page 196 U. S. 334
Army and Navy, and that it is expressly provided that officers
of the Navy shall receive the same pay and allowances, except for
forage, as are or may be provided by law for officers of the Army
of corresponding rank, we think it does no violence to, but rather
carries out, the purpose of Congress to construe this section so as
to give to an aid of a rear admiral, in addition to the regular pay
of his rank, pay similar to that allowed an aid to a major general.
We reach the conclusion that the Court of Claims was right in its
allowance of this item.
The solution of the question as to mounted pay depends upon
whether such pay is given to an officer whose duty requires him to
be subject to mounted duty or whether it is a term used to
designate the pay of aids whether they are required to render
mounted service or not. Section 1301 of the Army Regulations of
1905 provides:
"The following officers, in addition to those whose pay is fixed
by law, are entitled to pay as mounted officers: officers of the
staff corps below the rank of major, officers serving with troops
of cavalry, officers of a light battery duly organized and
equipped, authorized aids duly appointed, officers serving with
companies of mounted infantry, and officers on duty which, in the
opinion of the department commander, requires them to be mounted
and so certified by the latter on their pay vouchers."
The contention of the appellee is that aids, duly appointed
under this section, serving in the Army, are entitled to this
compensation, whether required to be mounted or not. And further,
that the language "pay as mounted officers" is used in the
paragraph rather with a view of fixing the amount to be paid than
to characterize the service required. It is doubtless true that the
term "mounted pay" may be used in this sense.
Richardson v.
United States, 38 Ct.Cl. 182, is cited as an illustration of
this use of the phrase. In that case, it was held that an assistant
surgeon in the Navy was entitled to mounted pay under the Navy
Personnel Act, because an assistant surgeon in the Army was
entitled thereto. Under section 1168 of the Revised Statutes, an
assistant surgeon in the Army ranked
Page 196 U. S. 335
with a lieutenant of cavalry for the first three years of
service, and with a captain of cavalry after the expiration of that
period. Under these provisions, the assistant surgeon was held
entitled to mounted pay.
We are further cited to a decision of the Comptroller of the
Treasury, 10 Comp. Dec. 523, holding that officers of the pay corps
of the Navy are entitled to mounted pay, as officers of the pay
corps of the Army are given by law cavalry or mounted pay. It may
well be that in these cases mounted pay was descriptive of the
compensation to be paid, and an officer may therefore be entitled
to it, although he renders no mounted service.
But the right of mounted pay to an aid to a rear admiral,
assuming that the Navy Personnel Act assimilates the compensation
of an admiral's aid to that of an aid to a major general in the
Army, depends upon whether an aid to a major general under
paragraph 1301 of the Army Regulations above quoted, although he
renders no mounted service, and may not be required to be mounted,
is entitled to such compensation. We think sections 1302 and 1303
of the Army Regulations may also be noticed in this connection.
They are:
"SEC. 1302. Department commanders will announce, in orders, the
authority obtained from the Secretary of War for mounting companies
of infantry, giving the date from which such mounted service
commences, and termination of the same."
"SEC. 1303. Muster rolls and returns of light batteries and
companies of mounted infantry will show the number, date, and
source of order authorizing mounted service. The pay accounts of
officers charging mounted pay will contain the same information. A
copy of the order will be attached to the first muster rolls
prepared after the battery or company has been equipped or mounted;
a copy of the order discontinuing such service will appear on the
first muster rolls prepared after its discontinuance."
We think these sections, with § 1301 of the Army
Regulations above quoted, read in the light of the statute
(Rev.Stat.,
Page 196 U. S. 336
§ 1270), giving to Army officers the pay of cavalry
officers of the same grade when assigned to duty which requires
them to be mounted, indicate a general purpose to give to officers
of the Army mounted pay when their duties are such as may require
them to be actually mounted, or are such as may at any time subject
them to the necessity of rendering mounted service. The particular
section (1301) under which it is insisted that a naval aid is
entitled to mounted pay designates officers who either are, or may
be, required to be mounted in the discharge of their duties, and
likewise to
"officers on duty which, in the opinion of the department
commander, requires them to be mounted, and so certified by the
latter on their pay vouchers."
This paragraph was intended to include the particular classes of
officers who are entitled to pay as mounted officers under the
classification in the first part thereof, and gives the benefit of
the higher rate of compensation to other officers, not expressly
named therein, whose duties require them to be mounted. It may be
true, as argued at the bar, that there may be times when the duties
of an aid to a major general will not require him to be mounted.
But, as we understand the Army Regulations, such officers may be at
any time required to render mounted service, and are therefore
given the pay of that class. Obviously the duties of an aid to a
rear admiral are not such as to require him to render mounted
service, and, as the Navy Personnel Act only undertakes to afford a
measure of compensation for duties which can properly be required
of a naval officer, it can have no operation to provide pay for
services peculiar to the Army. As was held in
Thomas v. United
States, 195 U. S. 418, it
does not follow, because Congress gives special pay to Army
officers, that the same right of compensation applies to naval
officers also. In that case, it was held that an allowance to Army
officers who might be ordered to sea or a foreign port could not be
given to naval officers whose regular duties require them to engage
in service upon the sea, and to cruise upon foreign waters and
serve in foreign ports.
Page 196 U. S. 337
The present case affords still less reason for giving the pay of
an Army officer to one in the Navy, where the compensation is given
for a character of service which never can be required except in
the Army.
Upon this branch of the case, we think the Court of Claims was
in error, and the judgment for mounted pay should not have been
rendered in favor of the claimant.
The judgment of the Court of Claims is modified, disallowing the
sums claimed in the petition and carried into the judgment on
account of mounted pay and longevity pay based thereon, and, as
modified, is
Affirmed.
