58 Ct. Cl. 359 | Ct. Cl. | 1923
delivered the opinion of the court:
This is a suit to recover the difference in pay between that of a rear admiral of the lower half of the grade and that of the upper half of the grade. The facts are not in dispute. The plaintiff was graduated from the Naval Academy in 1886. On April 27,1912, he had attained the rank of captain. On September 6, 1918, plaintiff was appointed a temporary rear admiral in the Navy, to date from July 1,1918. Subsequently, on August 19, 1919, he was appointed a permanent rear admiral and commissioned as such to date from April 7, 1919. On the date of plaintiff’s commission as permanent rear admiral there were 55 rear admirals, temporary and permanent, in the Navy, 27 of whom were in the upper half of that grade and 28 in the lower. Talcing the entire list as it then existed, plaintiff ranked as No. 35 on the same, and thereby fell into the lower half of the grade, and received the pay and allowances of a rear admiral of the lower half of the grade until February 7, 1921. On February 6, 1921, plaintiff’s senior in office, Bear Admiral George B. Clark, was retired, and plaintiff was regularly advanced the following day to the upper half of the grade. There were at the time 50 rear admirals of the line, exclusive of additional numbers on the active list, plaintiff ranking 25 on the list, and he has since received the pay and allowances of the upper grade. Plaintiff now insists that he should have received the pay and allowances of a permanent rear admiral of the upper grade from April 7, 1919, the date stated in his permanent commission, until February 7, 1921, the date when he was advanced to that grade. The reason for the plaintiff’s rank and pay, of which he complains, is the appearance
The act of March 3, 1899, 30 Stat. 1005, fixed the number of rear admirals on the active list at 18, and divided them for the purpose of pay into classes, the upper and lower 9, the upper grade receiving the greater pay, and this legislative policy of dealing with the subject continued until the passage of the act of August 29, 1916, commonly known as the National Defense Act.
By the terms of the National Defense Act, 39 Stat. 576, the total number of commissioned officers of the Navy was to be 4 per cent of the total authorized enlisted strength of the active list, with some exceptions unimportant to this controversy. The statute itself provided for the total number of commissioned line officers on the active list by expressly setting forth the proportionate number to be distributed. It likewise provided a method for attaining promotions in the service, fixed the grades from which promotions should be made, and prescribed a limit to eligibility by denying advancement to captains, commanders, or lieutenant commanders who had served less than four years in the grade he was serving on November 30 of the year of the convening
On May 22, 1917, 40 Stat. 84, Congress, a little over a month after the war with Germany began, increased the active strength of the Navy from 87,000 to 150,000, which, of course, under the National Defense Act would have required the appointment of many additional permanent officers.
The act of May 22,1917, was clearly an emergency statute, passed to meet an acute situation and temporary in its character and terms, and Congress met the situation by providing for temporary appointments to advanced positions in the Navy, retaining with respect to the order and manner of making such promotions the wholesome provisions in that respect contained in the National Defense Act. The clear and manifest intendment of Congress in passing the act of May 22, 1917, was to materially increase the fighting forces of the Navy, make it ready for actual war service, and when the emergency passed to provide an express way and manner of resuming its peace status without injustice to its personnel. Officers holding permanent rank and grade at the time of the passage of the act, everything else being equal, were not to be supplanted by temporary officials. On the contrary, the temporary officer came along in the regular way provided for in the act of August 29,1916, filled in the vacan
In the case of Reeves v. Ainsworth, 219 U. S. 296, 306, Mr. Justice McKenna in deciding a somewhat similar issue, used this language: “ The courts are not the only instrumentalities of government. They can not command or regulate the Army. To be promoted or to be retired, may be the right of an officer, the value to him of his commission, but greater even than that is the welfare of the country, and, it may be, even its safety, through the efficiency of the Army. And this was the motive of the act of October 1, 1890, and naturally its accomplishment was intrusted to the President.” The language is especially apropos when applied to the act of May 22, 1917. The courts will not, in cases of doubt, disturb the contemporaneous construction of executive officers charged with the execution of a law without very strong and cogent reasons. Brown v. United States, 113 U. S. 568 ; United States v. Philbrick, 120 U. S. 52; Hewitt v. Schultz, 180 U. S. 139; United States v. Sweet, 189 U. S. 471.
We look in vain for any express provision of law warranting the court in sustaining plaintiff’s contention. The argument in the brief is by way of inference, predicated pri
A very different situation might arise if the plaintiff had been a permanent rear admiral at the time of the passage of the act of May 22, 1917, but he was not, and he did not attain the same until nearly two years thereafter. Congress possessed the undoubted power to do what it did do, and when Congress creates an office, either temporary or permanent, and expressly provides the method of filling the same, as well as the class which shall be eligible thereto, it is difficult to perceive upon what authority, in the absence of express words to that effect, a court may interpose and dispossess a temporary appointee lawfully appointed, in the interest of a permanent one afterwards appointed when there are sufficient offices for both. Especially is this so when to so hold involves a complete upset of the administration of the law under which the temporary officer was appointed by the department of the Government charged with its administration. It is true that the temporary officer did not by reason of his temporary appointment permanently lose his former status or commission. Congress did not intend to create an increased number of permanent officials for which the Navy in time of peace might not have need, and obviously desired to do justice to the personnel of the Navy.
The saving clause contained in section 13 of the act of May 22, 1917, supra, does not include a case like this. The plaintiff’s pay and allowances were not reduced by the passage of the act. They were increased. The proviso maintained the standard of pay and allowances provided by law for the officer in his previous permanent position. The fact that the act of May 22, 1917 enabled the plaintiff to be first advanced to a temporary office and subsequently to a permanent one does not bring his case within the terms of the proviso. Plaintiff was advanced under the act itself. What the proviso saved to him was the pay and allowances of a captain in the event his promotion resulted in pay of a lesser sum than provided by law for a captain.
During the emergency provided for in the act of May 22, 1917, it might have occurred that the changed status of an officer would result in a decrease in pay from what he was receiving under his permanent commission, and Congress very justly assured him that no decrease in pay would result from the passage of the act. The act did not forbid an increase, but merely prohibited a decrease, and saved to the officer affected the pay of his permanent rank in any event.
The act of July 11, 1919, contains this very significant language:
“ That the average numbered of commissioned officers of the line, permanent, temporary, and reserves on active duty, shall not exceed, during the periods aforesaid, 4 per cent of the total temporary authorized enlisted strength of the regular and temporary Navy, and members of the Naval Eeserve Force in enlisted rating on active duty and the number of staff officers shall be in the same proportion as provided under existing law.”
Congress having used language in a statute which has been construed in a prior statute, it is to be presumed that it intended to adopt the construction given to the prior act. Claflin v. Commomwealth Ins. Co., 110 U. S. 81; Sessions v. Romadka, 145 U. S. 29.
We have not discussed in detail the various statutes set forth in the findings and briefs of counsel. They are clearly available to trace the legislative steps which finally culminated in the passage of the National Defense Act and the act of May 22, 1917. There is apparently no language in any of them which positively confers upon an officer under the circumstances of this case a legal right of preference and hence increased pay and allowances. In our view of the case, Congress was especially concerned during the war in making the Navy a most formidable unit. To accomplish the desired end, its personnel must be largely increased, and Congress, having authority so to do, provided for the emergency in the way set out in the act of May 22, 1917. The
There is another phase of this case which seems to have escaped attention. Plaintiff’s cause of action accrued when he was appointed permanent rear admiral on April 7, 1919. He did not file his suit in this court until May 7, 1922, more than three years after his cause of action arose. During all of this time another officer holding a temporary commission as rear admiral was drawing the pay and allowances which he now claims should have been paid to him. This court and the Supreme Court have held in a number of cases that where an employee of the Government by his laches has lost the right to have his title to the office from which he was removed tried, and another person has been appointed to said office and has been paid the salary thereof, the employee so dismissed can not maintain an action to recover such salary. Norris v. United States, 257 U. S. 77; Nicholas v. United State, id. 71; Arant v. Lane, 249 U. S. 367; Arant v. United States, 55 C. Cls. 327. The principle enunciated in these cases appear to apply with equal force to the instant case.
The petition will be dismissed. It is so ordered.