A naval officer who had been retired under § 23 of the Act
of 1861 for disability not originating in the line of duty and
afterwards transferred to the three-quarter pay list under §
1558, Rev.Stat., by authority of a special act of Congress
held not entitled to advanced pay to which officers
retired on account of wounds or disability
Page 229 U. S. 209
incident to the service are entitled under the Act of June 29,
1906.
There being nothing in the record to show that any injustice was
done by the Retiring Board in retiring an officer of the navy for
disability not originating in the line of duty, a special act of
Congress subsequently passed for his relief and placing him on a
list by which he receives increased pay will not be construed as
one relieving him from wrong and injustice and giving him the
benefits of officers retired for disabilities incident to the
service.
46 Ct.Cl. 361 affirmed.
The facts, which involve the construction of the Acts of
Congress relating to pay of retired naval officers, are stated in
the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
The question in this case is whether the appellant, an officer
on the retired list of the Navy, is entitled to the difference
between the retired pay of a lieutenant and that of a lieutenant
commander, from the date of the passage of the Act of June 29,
1906, 34 Stat. 554, c. 3590. At the time of his retirement, he held
the rank of lieutenant. The act referred to provides that any
officer not above the grade of captain, whose name is borne on the
official register of the Navy, and having certain other
qualifications that the appellant concededly possesses,
"and who has heretofore been or may hereafter be retired on
account of wounds or disability incident to the service . . . may,
in the discretion of the President, by and with the
Page 229 U. S. 210
advice and consent of the Senate, be placed on the retired list
of the Navy with the rank and retired pay of one grade above that
actually held by him at the time of retirement."
Appellant had served in the Navy during the Civil War, and
thereafter until July 22, 1874, when he was retired on furlough pay
upon approval by the President of the finding of a Retiring Board
that he was incapacitated for performing the duties of his office,
and that the incapacity did not originate in the line of duty. The
Retiring Board acted under § 23 of the Act of August 3, 1861,
12 Stat. 291, c. 42, now §§ 1448 to 1457 of the Revised
Statutes. Afterwards, and on July 17, 1878, under the provisions of
§ 1594, Rev.Stat., he was transferred by the President, with
the consent of the Senate, from the furlough to the retired-pay
list, and thereafter received 50 percentum of the highest sea pay
of his grade as lieutenant.
On June 26, 1902, he was transferred from the half-pay list to
the three-quarters pay list under the authority of a special act of
Congress, approved June 10, 1902, 32 Stat. 1444, c. 1075, which
reads as follows:
"Be it enacted, etc., that the Secretary of the Navy be, and he
is hereby, authorized and empowered to transfer Lieutenant Jerome
E. Morse, of the retired list of the United States Navy, from the
half-pay list to the seventy-five percentum pay list of retired
officers, under section fifteen hundred and eighty-eight of the
Revised Statutes of the United States, and the said transfer shall
take effect as of the passage of this Act."
The section of the Revised Statutes therein referred to is as
follows:
"Sec. 1588. The pay of all officers of the Navy who have been
retired after forty-five years' service after reaching the age of
sixteen years, or who have been or may be retired after forty
years' service, upon their own application to the President, or on
attaining the age
Page 229 U. S. 211
of sixty-two years, or on account of incapacity resulting from
long and faithful service, from wounds or injuries received in the
line of duty, or from sickness or exposure therein, shall, when not
on active duty, be equal to seventy-five percentum of the sea pay
provided by this chapter for the grade or rank which they held,
respectively at the time of their retirement. The pay of all other
officers on the retired list shall, when not on active duty, be
equal to one-half the sea pay provided by this chapter for the
grade or rank held by them, respectively at the time of their
retirement."
In January, 1907, appellant was nominated by the President for
advancement to the grade of lieutenant commander on the retired
list, in accordance with the provisions of the Act of June 29,
1906, first above mentioned; the nomination was confirmed by the
Senate, and the appellant was shortly afterwards advised in the
usual mode by the Secretary of the Navy that he had been advanced
from June 29, 1906, the date of the passage of the act.
The question is whether the appellant (having all other
qualifications for advancement under the act referred to) is to be
considered as having been retired for disability incident to the
service, and this depends upon the question whether the special act
of June 10, 1902, operated to change his status from that of an
officer retired for incapacity not incident to the service to that
of an officer retired for incapacity incident to the service.
The Court of Claims resolved this question against the claimant
(46 Ct.Cl. 361). This we think is correct. The case is in effect
governed by
Potts v. United States, 125 U.
S. 173, and
United States v. Burchard,
125 U. S. 176.
The argument to the contrary is based upon the Act of June 10,
1902. Its title is "An Act for the Relief of Lieutenant
Page 229 U. S. 212
Jerome E. Morse." This is invoked as an aid in interpreting the
meaning of the enactment. The query propounded is
"What was the relief that Congress intended to grant the
claimant, unless it was relief from the consequences of the wrong
and injustice that had been done him by the Retiring Board in
1874?"
But this query begs the whole question. There is nothing in the
record to show that any wrong or injustice was done by the action
of the Retiring Board. The answer to the query is, we think,
written in unmistakable terms in the act itself, and in §
1588, Rev.Stat., to which it refers. The intended relief consisted
in an increase of pay, measured by the difference between half pay
and three quarters pay, for the rank that he held at the time of
his retirement -- that is to say, for the rank of lieutenant.
The case differs widely from
McLean v. United States,
226 U. S. 374, and
is not controlled by it.
Judgment affirmed.