United States v. Alger (151 U.S. 362)/Opinion of the Court

by Horace Gray

United States Supreme Court

151 U.S. 362

United States  v.  Alger

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 inadvance of 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. U.S., 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. U.S., 113 U.S. 310, 5 Sup. Ct. 491, and 18 Ct. Cl. 111; Roget v. U.S., 148 U.S. 167, 13 Sup. Ct. 555, and 24 Ct. Cl. 165.

But every officer in active service is entitled, by the naval appropriation act of March 3, 1883, (chapter 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. U.S., 129 U.S. 249, 9 Sup. Ct. 285, and 23 Ct. Cl. 376; U.S. v. Foster, 128 U.S. 435, 9 Sup. Ct. 116. 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. U.S. v. Rockwell, 120 U.S. 60, 7 Sup. Ct. 367, 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. U.S. v. Mullan, 123 U.S. 186, 8 Sup. Ct. 79; U.S. v. Green, 138 U.S. 293, 11 Sup. Ct. 299.

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 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 1st, 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. U.S. v. Hendee, 124 U.S. 309, 8 Sup. Ct. 507; U.S. v. Baker, 125 U.S. 646, 8 Sup. Ct. 1022; U.S. v. Cook, 128 U.S. 254, 9 Sup. Ct. 108.

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 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.

Notes