152 U.S. 384

14 S.Ct. 635

38 L.Ed. 488


Nos. 885, 886.

March 19, 1894.

Wm. A. Maury, for petitioner.

[Argument of Counsel from pages 385-396 intentionally omitted]

Mr. Justice GRAY delivered the opinion of the court.


These two cases were decided at the present term in favor of the United States, upon the ground that under the act of March 3, 1883, c. 97 (22 Stat. 473), an officer of the navy, who resigns one office the day before his appointment to a higher one, though in a different branch of the service, is only entitled to longevity pay as of the lowest grade having graduated pay held by him since he originally entered the service. 151 U. S. 362, 366, 14 Sup. Ct. 346, 347.


The principal grounds of the petitions for rehearing, and the only ones which require to be noticed, were not suggested in the briefs upon which the cases were submitted for decision. Those grounds are that, by the settled practice of the navy department (as shown by documents now laid before the court for the first time), officers in one branch of the service are required to resign from the navy before accepting an appointment in any other branch of the service. The longevity pay of officers so transferred from one branch of the service to another is computed upon the theory that the new appointment is a new entry into the service, and the names of such officers are placed, without regard to their previous rank, at the foot of the list of officers of the same grade in the new corps.


As it now appears that the resignation of every officer, under such circumstances, is absolutely required by the navy department, it is evident that no case of the kind could be open to the suggestion made, by way of hypothesis only, and not as applicable to either of these claimants, in the former opinion in Alger's Case, that 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 unbecoming in the officer or his advisers.


But the habitual requirement of such a resignation by the navy department as a preliminary to the new appointment puts beyond doubt (what was before in some degree a matter of inference from the specific facts found) that each resignation was tendered with no intention of leaving the service, and confirms us in the opinion heretofore announced, that the actual service of each claimant from the time he first entered the navy was for a single and continuous period, within the meaning of the longevity pay act.


If the meaning of that act were doubtful, its practical construction by the navy department would be entitled to great weight; but, as the meaning of the statute, as applied to these cases, appears to this court to be perfectly clear, no practice inconsistent with that meaning can have any effect. Swift Co. v. U. S., 105 U. S. 691, 695; U. S. v. Graham, 110 U. S. 219, 3 Sup. Ct. 582; U. S. v. Tanner, 147 U. S. 661, 13 Sup. Ct. 436.


This case does not present for judical determination (if it could be so presented in any form) the question whether the practice of the navy department with regard to the rank and precedence of such officers conforms to section 1485 of the Revised Statutes, which directs that 'the officers of the staff corps of the navy shall take precedence in their several corps and in their several grades, and with officers of the line with whom they hold relative rank, according to length of service in the navy.'


In the petitions for rehearing, illustrations are given of the inequality of the operation of the longevity pay act, as construed by this court; but as that act, upon any possible construction, distinguishes the case of continuous from that of interrupted service, it is impossible that there should not be some cases of apparent disproportion in the allowances for length of service. The duty of the courts is to apply the general rule prescribed by congress. If injustice attends the application of the rule in particular cases, congress alone can afford a remedy by changing the rule for the future, of granting additional compensation for the past.


Petitions for rehearing denied.


Mr. Justice WHITE, not having been a member of the court when this case was argued, took no part in its decision.

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