Imágenes de páginas

ing from San Francisco to Puget sound, and eral received $7,500; a' commodore received in the waters of Puget sound. This claim is $5,000 when at sea, while a brigadier genmade provisionally in case his service in eral received $5,500. A captain, however, Chinese and Philippine waters is not con- when at sea received $4,500, while a colonel sidered to be service "in China" and "in the received but $3,500. Philippine islands,” entitling him to 10 per To remove this dissatisfaction Congress cent increase from May 26, 1900, to March passed the Navy personnel act, assimilating 1, 1901. In that event he would claim that the pay of Navy officers to Army officers of his service in waters of the United States corresponding rank, with a proviso, however, was beyond the limits of the states compris “that no provision of this act shall operate ing the Union.

to reduce the present pay of any commis4. Between December 2, 1899, when re- sioned officer now in the Navy; and in any lieved as commanding officer of the U. S. S. case in which the pay of such an officer Lancaster, and ordered to report to the Navy would otherwise be reduced he shall continue Department, and February 7, 1900, when he to receive pay according to existing law.” took command of the U. S. S. Baltimore at The effect of this legislation was to raise Hong Kong, China, he was paid only shore the pay of certain Navy officers to that repay,—$3,825 a year,—15 per cent less than ceived by Army officers of corresponding sea pay. He claims sea pay,-$4,500 a year, rank and to leave undisturbed the present during that time.

pay of certain other Navy officers, who were The last item was disallowed. The first already receiving higher pay than Army ofthree items were at first disallowed, but, on ficers of the same rank. a rehearing, were allowed and final judg- The intention of Congress was evidently to ment rendered for $568.29. 38 Ct. Cl. 113, put officers of the Army and Navy on the 719. Both parties appealed to this court. same footing with respect to their general

pay, and to make the act prospective in its Méssrs. George A. King and William application to future legislation, so that if B. King for Thomas.

Congress should thereafter raise the general Assistant Attorney General Pradt and pay of Army officers as fixed by Revised Mr. John Q. Thompson for the United Statutes, § 1261, U. S. Comp. Stat. 1901, p. States.

893, a like increase should apply to Navy of

ficers. It does not, however, follow that Mr. Justice Brown delivered the opinion Congress may not increase the pay of Army of the court:

officers for services in particular places or This case depends upon the construction under special circumstances, without theregiven to § 13 of the Navy personnel act, de- by intending that the same increase shall claring that “after June 30, 1899, commis- apply to naval officers performing the same sioned officers of the line of the Navy and service under like circumstances. Thus, if of the medical and pay corps shall receive the act should allow Army officers increased the same pay and allowances, except forage, pay when ordered to sea or to a foreign port, as are or may be provided by or in pursu- it would not follow that naval officers would ance of law for officers of corresponding rank be entitled to a like increase, since such in the Army.” The object of this act can service would be wholly exceptional in the best be understood by considering the prior case of Army officers, while it is the natural legislation of Congress upon the same gener- and normal duty of Navy officers to engage al subject, and the circumstances under in sea service, cruise in foreign waters, and which the act was passed. By the act of lie up in foreign ports. It never could have July 16, 1862 [12 Stat. at L. 585, chap. 183] been the intention of Congress to disable it(Rev. Stat. § 1466, U. S. Comp. Stat. 1901, self from awarding to a particular class of p. 1030), the relative rank of Army and Army officers an increase of pay for excepNavy officers was fixed by declaring that tional services without thereby increasing rear admirals shall rank with major gener- the pay of Navy officers, whose lives are als, commodores with brigadier generals, largely passed in performing like services. captains with colonels, commanders with Confirmation of this view is found in the 2d lieutenant colonels, lieutenant commanders proviso of g 13, “that when naval officers are with majors, lieutenants with captains, etc. detailed for shore duty beyond seas they

It was, however, a source of dissatisfac- shall receive the same pay and allowances as tion to Navy officers that some of them did are or may be provided by or in pursuance not receive the same pay as corresponding of law for officers of the Army detailed for officers of the Army, although others re- duty in similar places.” Here is a distinct ceived a larger pay. Thus, by $$ 1261 and recognition of the fact that when naval of1556 ( U. S. Comp. Stat. 1901, pp. 893, ficers are detailed for a special or unusual 1067), the highest pay of a rear admiral, duty beyond seas, they shall receive the same when at sea, was $6,000, while a major gen.' pay as Army officers detailed for the same duties. This provision, however, would be Francisco until he returns there. This al. wholly unnecessary if the act were given the lowance was undoubtedly based upon the broad application contended for, since the consideration that service, both in

in the increased pay allowed to Army officers for Philippines themselves and upon the voyduty beyond seas would apply to naval of age going and returning, was an excepficers, without a special proviso to that eftional service, attended by peculiar hardfect. Shore duty beyond seas being an ex- ships; but to say that Navy officers shall be ceptional duty, both to officers of the Army entitled to the same increase is practically and Navy, and being probably attended by to add 10 per cent to their sea pay from the increased expenditures, and dangers incident moment they leave a port of the United to a tropical climate, it is very natural that States until they return thereto; in other Congress should award them both increased words, to increase their normal sea pay 10 compensation.

per cent whenever they are serving beyond The principal questions in this case, how- the limits of the states. ever, arise from the Army appropriation bills So far as applied to naval officers, it goes of May 26, 1900, and March 2, 1901, making further than this. The act of 1901 does not, appropriation for the support of the

the as did the act of 1900, limit the increase of Army for the year ending June 30, pay to officers serving in our island posses1901, and 1902, the first of which contains sions and in Alaska, but extends it to all the following proviso:

serving beyond the limits of the United Provided, That hereafter the pay proper States, so that, if applied to naval officers, of all officers and enlisted men serving in whenever a vessel is ordered to sea beyond Porto Rico, Cuba, the Philippine islands, the 3-mile limit, be it only upon a pracHawaii, and in the territory of Alaska, shall tice cruise or a voyage from Pensacola to be increased 10 per cent for officers and 20 New York, every officer on such vessel is enper cent for enlisted men, over and above the titled to a 10 per cent increase of his rates of pay proper as fixed by law in time ordinary pay from the day he sets sail until of peace.” 31 Stat. at L. 211, chap. 586. the day he returns.

Here is an increase of 10 per cent allowed It is not for a moment to be supposed that to Army officers serving in certain desig- Congress contemplated any such sweeping innated places. Doubtless if naval officers novation. This construction would not only were detailed for shore duty in any of these render nugatory and obsolete the proviso of islands they would receive a like increase of the personnel act that officers, to be entitled pay, under the proviso of § 13 of the per- to Army pay, shall be detailed for shore sonnel act, heretofore quoted. But, unless duty, but largely discriminates in favor of they are detailed for shore duty, it is impos-naval officers by adding 10 per cent to their sible to hold that they are entitled to extra pay for their normal sea duties without a pay, without treating as obsolete the above corresponding addition to the pay of Army proviso requiring such detail.

officers for the performance of their normal The act of March 2, 1901 (31 Stat. at L. duties, which are upon land; in other words, 903, chap. 803, U. S. Comp. Stat. 1901, p. instead of assimilating the pay of Army and 896), making appropriation for the support naval officers, it actually dissimilates them. of the Army for the fiscal year ending June In our opinion the proviso that naval of30, 1903, contains the following proviso: ficers shall be entitled to Army pay "when

Provided, That hereafter the pay proper detailed for shore duty beyond seas” is not of all officers and enlisted men serving be-repealed or rendered inoperative by anything yond the limits of the states comprising the contained in the acts of May 26, 1900, and Union, and the territories of the United March 2, 1901, and that naval officers are States contiguous thereto, shall be increased not entitled to an increase of pay while dis10 per centum for officers and 20 per centum charging their ordinary sea duties. for enlisted men, over and above the rates of It is significant in this connection to pay proper as fixed by law for time of peace, notice that in the appropriation act of and the time of such service shall be counted March 2, 1901, for the support of the from the date of departure from said states Army for the fiscal year of 1902, there to the date of return thereto:

an item of $500,000, for an "adProvided further, That the officers and ditional 10 per centum increase on the enlisted men who have served in China at pay of officers serving at foreign stations.” any time since the 26th day of May, 1900, 31 Stat. at L. 903, chap. 803. This was shall be allowed and paid for such service followed by a similar provision in the approthe same increase of pay proper as is here- priation act of June 30, 1902 for the year of in provided for.

1903, the amount appropriated being $451,Under this proviso an Army officer ordered 450 (32 Stat. at L. 507–512, chap. 1328), to the Philippine islands receives an in- and in the Army appropriation act of March crease of pay from the day he leaves San' 2, 1903, for the year 1904, there was also an


item of $200,000, for the same purpose. 32 The next day, after reporting to the Navy Stat. at L. 933, chap. 975. So also in the Department under this order, he was ordered appropriation act of April 23, 1904 (33 Stat. to proceed to San Francisco, California, and at L. 259-266), for the year 1905, there is thence to Hong Kong. It thus appears that an item for an additional 10 per centum in- while he was not regularly detailed for shore crease on the pay of commissioned officers duty, he was ordered to report at the Navy serving in the Philippine islands, the island Department for a special temporary duty, of Guam, Alaska, China, and Panama, of and the final sentence of the letter indicates $167,426.30.

that it was regarded as an employment on Notwithstanding these repeated provisions shore duty. He was allowed by the Departfor the increase of Army pay, Congress has ment $50 traveling expenses from Barbadoes never made an appropriation for the largely to New York, but was not allowed either increased pay to which naval officers would mileage or sea pay. The court of claims, be entitled under the acts of 1900 and 1901, however, allowed him mileage under § 13 of or otherwise recognized their claim for in the Navy personnel act, and a clause of the creased pay to which such officers would be army appropriation act of March 3, 1899 (30 entitled upon the theory of the petitioner in Stat. at L. 1064, 1068, chap. 423), providing this case.

This omission lends support to "that hereafter the maximum sum to be althe theory that Congress supposed that the lowed and paid to any officer of the Army ordinary sea services of ņaval officers were shall be seven cents per mile, distances to be sufficiently compensated by the addition of computed over the shortest usually traveled 15 per centum to their shore pay.

routes;" but mileage seems not to have been 2. Different considerations apply to the claimed for his traveling from Washington claim of petitioner to sea pay from Decem- to Hong Kong, by reason of the further prober 2, 1899, to February 7, 1900. Claimant vision of the same act “that actual expenses was relieved as commanding officer of the only shall be paid to officers when traveling Lancaster, then at Barbadoes, December 2, to and from our island possessions in the 1899, and ordered to report to the Navy De Atlantic and Pacific oceans.” The governpartment, where he arrived, by merchant ment apparently acquiesced in this allowsteamer, December 12, 1899. Upon the fol

ance of mileage, as it made no appeal therelowing day he was ordered to proceed to from. Hong Kong, for duty on the Asiatic station,

But the court of claims further held that, and sailed by merchant steamer from San under Rev. Stat. § 1571, U. S. Comp. Stat. Francisco, January 6, 1900. He reported in 1901, p. 1079, he was not entitled to sea pay, obedience to his orders, and was assigned to because, by that section, “no service shall be the command of the Balitmore at Hong regarded as sea service except such as shall Kong, February 7, 1900. Between Decembe performed at sea, under the orders of a ber 2, 1899, and February 7, 1900, petitioner department, and in vessels employed by auwas occupied in traveling on duty, partly on thority of law.” merchant steamer and partly on land, and in

This construction must necessarily be correporting to the Navy Department. During rect, unless we are prepared to hold that a this time his pay was reduced 15 per cent steamer upon which a naval officer takes from the regular sea pay, in accordance with passage under the orders of the department the first proviso of the personnel act, which is a "vessel employed by authority of law.” declares that "such officers, when on shore, Obviously, it does not admit of this construcshall receive the allowances, but 15 per tion. A person who takes passage upon a centum less pay than when on sea duty.”

steamer or a seat in a railway carriage does The order detaching him from the Lannot "employ" such steamer or carriage in caster was as follows:

any just sense. We think the term “vessels

employed by authority of law” is restricted Sir: You are hereby detached from duty to vessels owned or chartered by the governin command of the U. S. T. S. Lancaster, ment, or otherwise engaged in the service of will proceed immediately to Washington, D. the United States. C., and report at the Navy Department, at Sea duty being duty at sea upon such vesthat place, for special temporary duty. sels, an allowance for mileage is obviously

Hold yourself in readiness for orders to inconsistent with such duty, as the pay of sea duty.

the officer necessarily includes travel upon This employment on shore duty is re- such vessels; while it is appropriate to shore quired by the public interest.

duty, since travel upon such duty is perRespectfully,

formed either upon land or upon vessels not (Sgd.) A. S. Crowninshield, engaged in government service.

Acting Secretary. There is nothing in the Navy personnel act Captain Charles M. Thomas, U. S. N., inconsistent with or repealing Rev. Stat. $

U, S. T. S. Lancaster. 1571, U. S. Comp. Stat. 1901, p. 1079, and the case of Gibson v. United States, 194 U. The ruling of the Court of Claims in this S. 182, 48 L. ed. 926, 24 Sup. Ct. Rep. 613, last particular was correct; but for the error is not in point. In that case it was held in the previous ruling the decree must be re that the personnel act did repeal $$ 1578 and versed. 1585 (U. S. Comp. Stat. 1901, pp. 1083, 1085), allowing sea rations, because the

On January 3, 1905, Mr. Justice Brown later act covered the same subject, and announced that the judgment of December 5, superseded the provisions of those sections. 1904, was amended by remanding the case, There is no such conflict between § 1571 (U. with directions to reinstate the original judgS. Comp. Stat. 1901, p. 1079) and the per

ment for $97.42. sonnel act.

(195 U. S. 604) Ex parte THE REPUBLIC OF COLOMBIA, sum, with interest from the above-mentioned Petitioner.

date. The giving of interest is the error

alleged; and it is contended that, by the Appeal-construction of decree of appellate proper construction of the decree of this court-allowance of interest-arbitration.court, interest should not have been allowed.

Of course, the only question open in this 1. The proper construction of a decree of the proceeding is whether the decree of this

of a circuit court which had confirmed in court prohibits the allowance of interest. part an award in arbitration proceedings, Re Sanford Fork & Tool Co. 160 U. S. 247, and had ordered interest to be paid on the 40 L. ed. 414, 16 Sup. Ct. Rep. 291. As to remainder from the date fixed by the award that it is to be noticed that nothing is said for payment, and remanding the cause with upon the subject, either in the decree or in directions to confirm the award for and up the discussion of the case. In the opinion, to a lesser and specified sum, does not prohibit the circuit court, in entering its de however, the items were treated as separate cree pursuant to this decision, from allowing matters, "some of which,” it was said, “may interest on that sum from the date so fixed, be disallowed without affecting the rest." where, in the opinion of the Supreme Court, The only ground suggested for reversal was the items of the award were treated as sep the inclusion of the separable items. By conarate matters, some of which, it was said, might be disallowed without affecting the firming the award as to the others, this court, rest.

in effect, declared that they should have been 2. A Federal circuit court whose action was paid in gold coin of the United States of

invoked by the Republic of Colombia to set America, in the city of New York, on Januaside an award made against it in arbi- ary 26, 1898, in accordance with the terms decree the payment of interest from the date of the award. To that extent the decree befixed for payment by the award as in an low stood approved; and as no disapproval ordinary case.

was expressed of the consequence attached

by that decree to the failure to pay, it is [No. 13, Original.]

impossible to say that there was any implied prohibition of again attaching the

“The Argued November 28, 1904. Decided Decem- same consequence in the new decree. ber 12, 1904.

mandate and the opinion, taken together,

although they used the word 'reversed," ' ETITION for a writ of mandamus to the

amount to a reversal only in respect of the for a writ of mandamus to the accounting, and to a modification of the deCircuit Court of the United States for

cree in respect of the accounting, and to an the Northern District of West Virginia, to affirmance of it in all other respects." compel it to correct a decree entered in pur. Gaines v. Rugg, 148 U. S. 228, 238, 37 L. suance of a decision of the Supreme Courted. 432, 434, 13 Sup. Ct. Rep. 611, 615. This of the United States, on an appeal from the language is sufficiently applicable to be inCircuit Court. Denied.

structive, although not absolutely in point. The facts are stated in the opinion.

See also Kneeland v. American Loan & T. Mr. William G. Johnson for petitioner. Co. 138 U. S. 509, 34 L. ed. 1052, 11 Sup.

Messrs. John W. Beaumont, Hugh L. Ct. Rep. 426. Bond, and J. Walter Lord for respondent.

It may not be improper to add that when

the Republic of Colombia made its volunMr. Justice Holmes delivered the opinion tary submission to arbitration, it agreed of the court:

that, if the award was against it, in excess This is a petition for a writ of mandamus of a sum paid in advance, the government to the circuit court, ordering it to correct its should "pay the excess at such time, in such decree entered in pursuance of the decision manner, and on such terms as may be dein Colombia v. Cauca Co. 190 U. S. 524, 47 termined by the commission.” Art. 10. See L. ed. 1159, 23 Sup. Ct. Rep. 704. The de- art. 9. This language authorized the allowcree appealed from in that case confirmed ance of interest; and the first draft of the an award against the Republic of Colombia award gave interest at 6 per cent in case of after rejecting certain items, and ordered failure to pay at the time fixed, allowing, on interest to be paid on the remainder from the other hand, a discount of 5 per cent for January 26, 1898, the date fixed for payment cash. Both of these provisions were omitby the award. In this court other items of ted from the final award, which stopped the award were disallowed, and a a decree with fixing the time. But when the Repubwas made reversing the decree below, and lic submitted itself to the courts, it must be remanding the case "with directions to enter taken to have done so on the same terms as a decree confirming the award for and up other litigants, so far as fixing the amount to the sum of $193,204.02." The circuit which it was to pay was concerned; that court thereupon entered a decree for that being the matter on which the action of the


« AnteriorContinuar »