A-12245, A-12704, SEPTEMBER 24, 1926, 6 COMP. GEN. 203

A-12245,A-12704: Sep 24, 1926

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WAS PLACED UPON THE RETIRED LIST OF THE NAVY IN CONTRAVENTION OF SECTION 1445. IS NOT ENTITLED TO THE RETIRED PAY OF A COMMODORE. AS TO WHETHER OR NOT THIS OFFICER IS ENTITLED TO THE DIFFERENCE IN PAY BETWEEN LIEUTENANT. THE APPLICATION IS PRESUMABLY MADE UNDER SECTION 8 OF THE ACT OF JULY 31. IS TANTAMOUNT TO PAYMENT. IMPLYING BOTH AN INTENTION ON THE PART OF THE DISBURSING OFFICER TO MAKE PAYMENT AND A CONCLUSION BY HIM THAT THE PAYMENT IS LEGAL. THE REQUIREMENT FOR THE FUTURE MUST BE THAT WHERE DECISION OF THIS OFFICE IS SOUGHT UPON ANY QUESTION INVOLVING A "PAYMENT TO BE MADE" NO CREDIT ENTRIES ON ACCOUNT OF SUCH PAYMENT BE MADE UNTIL DECISION HAS BEEN RENDERED. WAS ADVISED BY THE THEN SECRETARY OF THE NAVY AS FOLLOWS: SUBJECT: TRANSFER TO THE RETIRED LIST. 1.

A-12245, A-12704, SEPTEMBER 24, 1926, 6 COMP. GEN. 203

PAY - RETIRED - PASSED ASSISTANT PAYMASTER OF THE NAVY THE PROVISION IN THE ACT OF AUGUST 29, 1916, 39 STAT. 579, CHANGING THE AGE FOR COMPULSORY RETIREMENT OF NAVAL OFFICERS UNDER SECTION 1444; REVISED STATUTES, FROM "SIXTY-TWO YEARS" TO SIXTY-FOUR YEARS" DOES NOT REPEAL SECTION 1445, REVISED STATUTES, AND HAS NO APPLICATION TO THE OFFICER DESIGNATED THEREIN. A PASSED ASSISTANT PAYMASTER OF THE NAVY WITH THE RANK OF LIEUTENANT WHO, AT THE AGE OF 64 AND AFTER 43 YEARS 11 MONTHS AND 9 DAYS' SERVICE, INCLUDING NEARLY 36 YEARS' SERVICE AS A PAY CLERK, WAS PLACED UPON THE RETIRED LIST OF THE NAVY IN CONTRAVENTION OF SECTION 1445, REVISED STATUTES, IS NOT ENTITLED TO THE RETIRED PAY OF A COMMODORE, AUTHORIZED BY SECTION 1481, REVISED STATUTES, AND THE ACT OF MAY 13, 1908, 35 STAT. 128, FOR OFFICERS LAWFULLY RETIRED AFTER LONG AND FAITHFUL SERVICE IN CERTAIN OF THE STAFF CORPS.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 24, 1926:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE SECRETARY OF THE NAVY, AN APPLICATION DATED NOVEMBER 3, 1925, FROM LIEUT. T. C. GIBBS, SUPPLY CORPS, UNITED STATES NAVY, FOR AN ADVANCE DECISION IN THE CASE OF PASSED ASSISTANT PAYMASTER EDWARD F. DELANEY,"WHO HAS BEEN ADVANCED TO THE RANK OF COMMODORE ON THE RETIRED LIST, AS TO WHETHER OR NOT THIS OFFICER IS ENTITLED TO THE DIFFERENCE IN PAY BETWEEN LIEUTENANT, SUPPLY CORPS, UNITED STATES NAVY, AND COMMODORE, SUPPLY CORPS, UNITED STATES NAVY, RETIRED.'

THE APPLICATION IS PRESUMABLY MADE UNDER SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, 211, WHICH REQUIRES THIS OFFICE TO RENDER A DECISION UPON THE APPLICATION OF DISBURSING OFFICERS, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT OR OTHER ESTABLISHMENT UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM. HOWEVER, IT APPEARS FROM AN EXAMINATION OF PAYMASTER GIBB'S DISBURSING ACCOUNT THAT HE HAD, PRIOR TO PRESENTING THE QUESTION FOR DECISION, CREDITED PASSED ASSISTANT PAYMASTER DELANEY'S ACCOUNT WITH THE RETIRED PAY OF A COMMODORE AT $375 PER MONTH FOR THE PERIOD SINCE JULY 1, 1923, AND HAS CONTINUED TO CREDIT HIM WITH THE RETIRED PAY OF A COMMODORE INSTEAD OF THE RETIRED PAY OF A LIEUTENANT AT $281.25 PER MONTH, CARRYING FORWARD THE DIFFERENCE BETWEEN THE TWO RATES OF PAY FROM QUARTER TO QUARTER AND FROM ROLL TO ROLL AS A BALANCE DUE BUT NOT PAID.

FROM A PRACTICAL ACCOUNTING VIEWPOINT THE PROCEDURE FOLLOWED BY PAYMASTER GIBBS CAN NOT BE TOO STRONGLY CONDEMNED. THE ENTRY OF AN ITEM ON THE CREDIT SIDE OF A PAY-ROLL ACCOUNT, UNDER PRESENT PRACTICE, IS TANTAMOUNT TO PAYMENT, IMPLYING BOTH AN INTENTION ON THE PART OF THE DISBURSING OFFICER TO MAKE PAYMENT AND A CONCLUSION BY HIM THAT THE PAYMENT IS LEGAL. IT MUST BE SO REGARDED TO AVOID CONFUSION IN AUDITING AND POSSIBLE ULTIMATE LOSS TO THE UNITED STATES. THE REQUIREMENT FOR THE FUTURE MUST BE THAT WHERE DECISION OF THIS OFFICE IS SOUGHT UPON ANY QUESTION INVOLVING A "PAYMENT TO BE MADE" NO CREDIT ENTRIES ON ACCOUNT OF SUCH PAYMENT BE MADE UNTIL DECISION HAS BEEN RENDERED.

UNDER DATE OF DECEMBER 9, 1922, PASSED ASSISTANT PAYMASTER DELANEY, WITH THE RANK OF LIEUTENANT, WAS ADVISED BY THE THEN SECRETARY OF THE NAVY AS FOLLOWS:

SUBJECT: TRANSFER TO THE RETIRED LIST.

1. ON 25 DECEMBER, 1922, YOU WILL HAVE ATTAINED THE STATUTORY RETIREMENT AGE OF SIXTY-FOUR (64) YEARS AND WILL BE TRANSFERRED TO THE RETIRED LIST OF OFFICERS OF THE U.S. NAVY FROM THAT DATE, IN ACCORDANCE WITH A PROVISION CONTAINED IN THE ACT OF CONGRESS APPROVED 29 AUGUST, 1916.

IT APPEARS FROM THE NAVY REGISTER THAT DELANEY WAS COMMISSIONED A CHIEF PAY CLERK FROM JULY 1, 1915, PURSUANT TO AUTHORITY CONTAINED IN THE ACT OF MARCH 3, 1915, 38 STAT. 942-943, AFTER PREVIOUS SERVICE AS A PAYMASTER'S CLERK FOR 35 YEARS 11 MONTHS AND 15 DAYS. HE WAS THEN MORE THAN 56 YEARS OF AGE. UNDER WORLD WAR EMERGENCY LEGISLATION HE WAS APPOINTED AN ASSISTANT PAYMASTER FROM JULY 1, 1917; ATTAINED THE RANK OF TEMPORARY LIEUTENANT (JUNIOR GRADE) FROM FEBRUARY 1, 1918, AND THE RANK OF TEMPORARY LIEUTENANT FROM JULY 1, 1918; WAS APPOINTED, AD INTERIM, A TEMPORARY PASSED ASSISTANT PAYMASTER, WITH THE RANK OF LIEUTENANT, FROM AUGUST 1, 1920; AND UNDER THE PROVISIONS OF SECTIONS 4 AND 5 OF THE ACT OF JUNE 4, 1920, 41 STAT. 835, 836, HE WAS TRANSFERRED TO THE REGULAR NAVY, AND ON APRIL 7, 1921, AT THE AGE OF 62 YEARS 3 MONTHS AND 13 DAYS WAS COMMISSIONED A REGULAR PASSED ASSISTANT PAYMASTER THEREIN, WITH THE RANK OF LIEUTENANT FROM AUGUST 3, 1920. WHEN PASSED ASSISTANT PAYMASTER DELANEY WAS PLACED UPON THE RETIRED LIST DECEMBER 25, 1922, HAVING ATTAINED THE AGE OF 64 YEARS, HE HAD COMPLETED 43 YEARS 5 MONTHS AND 9 DAYS OF SERVICE.

UNDER DATE OF SEPTEMBER 9, 1925, THE PRESENT SECRETARY OF THE NAVY ADDRESSED THE CHIEF OF THE BUREAU OF NAVIGATION AS FOLLOWS:

SUBJECT: RANK OF LIEUT. EDWARD F. DELANEY, SUPPLY CORPS, U.S.N., ON THE RETIRED LIST OF THE NAVY.

1. RETURNED.

2. THE DEPARTMENT IS OF THE VIEW THAT LIEUTENANT EDWARD F. DELANEY, SUPPLY CORPS, U.S.N., IS BY LAW ENTITLED TO THE RANK OF COMMODORE ON THE RETIRED LIST OF THE NAVY FROM THE DATE OF HIS RETIREMENT, 25 DECEMBER, 1922, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1481 OF THE REVISED STATUTES.

3. IT IS THEREFORE DIRECTED THAT NECESSARY ACTION BE TAKEN TO CORRECT THE RANK OF THE ABOVE-NAMED OFFICER AND THAT HIS PAY BE ADJUSTED ACCORDINGLY.

UNDER DATE OF SEPTEMBER 17, 1925, THE SECRETARY ADDRESSED THE FOLLOWING LETTER:

TO: COMMODORE EDWARD F. DELANEY, SUPPLY CORPS, U.S.N. (RET.), 372 BROADWAY, NEWPORT, R.I.

SUBJECT: ADVANCEMENT TO THE RANK OF COMMODORE ON THE RETIRED LIST.

1. YOU WILL REGARD YOURSELF AS HAVING BEEN PLACED ON THE RETIRED LIST WITH THE RANK OF COMMODORE, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1481 OF THE REVISED STATUTES, EFFECTIVE ON 25 DECEMBER, 1922.

SECTION 1481 OF THE REVISED STATUTES, WHICH WAS SECTION 11 OF THE ACT OF MARCH 3, 1871, 16 STAT. 537, PROVIDES:

OFFICERS OF THE MEDICAL, PAY, AND ENGINEER CORPS, CHAPLAINS, PROFESSORS OF MATHEMATICS, AND CONSTRUCTORS, WHO SHALL HAVE SERVED FAITHFULLY FOR FORTY-FIVE YEARS, SHALL, WHEN RETIRED, HAVE THE RELATIVE RANK OF COMMODORE; AND OFFICERS OF THESE SEVERAL CORPS WHO HAVE BEEN OR SHALL BE RETIRED AT THE AGE OF SIXTY-TWO YEARS, BEFORE HAVING SERVED FOR FORTY-FIVE YEARS, BUT WHO SHALL HAVE SERVED FAITHFULLY UNTIL RETIRED, SHALL, ON THE COMPLETION OF FORTY YEARS FROM THEIR ENTRY INTO THE SERVICE, HAVE THE RELATIVE RANK OF COMMODORE.

BY ACT OF AUGUST 5, 1882, 22 STAT. 286, IT WAS PROVIDED THAT "HEREAFTER THERE SHALL BE NO PROMOTION OR INCREASE OF PAY IN THE RETIRED LIST OF THE NAVY, BUT THE RANK AND PAY OF OFFICERS ON THE RETIRED LIST SHALL BE THE SAME THAT THEY ARE WHEN SUCH OFFICERS SHALL BE RETIRED.' THIS ACT REPEALED SECTION 1481 TO THE EXTENT THAT IT CONFLICTS WITH SAID SECTION. 32 OP.ATTY.GEN. 406. THE PRESENT CONSTRUCTION IN NAVY DEPARTMENT AS ILLUSTRATED IN THIS CASE APPARENTLY IS THAT THE LAST CLAUSE OF THE SECTION AS THUS "REPEALED" REQUIRES THAT OFFICERS OF THE STAFF CORPS MENTIONED, RETIRED FOR AGE AFTER HAVING SERVED FAITHFULLY MORE THAN 40 YEARS AT DATE OF RETIREMENT, BE ASSIGNED THE RANK OF COMMODORE ON THE RETIRED LIST.

WHEN SECTION 1481 OF THE REVISED STATUTES WAS ENACTED THE HIGHEST RELATIVE RANK IN ANY STAFF CORPS WAS THAT OF CAPTAIN (ATTAINED IN DUE COURSE OF PROMOTION), SO THAT NO STAFF OFFICER COULD ATTAIN THE RANK OF COMMODORE WHILE ON THE ACTIVE LIST. IT WAS INTENDED TO GIVE STAFF OFFICERS OF LONG AND FAITHFUL SERVICE IN COMMISSIONED GRADES OF THE SEVERAL STAFF CORPS DESIGNATED AND WHO HAD REACHED THE HIGHEST GRADE IN THEIR CORPS A RANK ON THE RETIRED LIST ABOVE THAT WHICH THEY COULD ATTAIN ON THE ACTIVE LIST, THE ASSIGNMENT OF SUCH RANK BEING MERELY AN HONORARY DISTINCTION ENTITLING THE RECIPIENT TO NO ADDITIONAL PAY. IT WAS NOT INTENDED TO REQUIRE THE ASSIGNMENT OF THE RANK OF COMMODORE TO A STAFF OFFICER WHO HAD NOT ATTAINED TO THE RANK OF CAPTAIN ON THE ACTIVE LIST AND, PRIOR TO THE ACT OF MAY 13, 1908, 35 STAT. 128, THE OFFICER WAS ENTITLED TO NO ADDITIONAL PAY ON THE RETIRED LIST BY REASON OF HONORARY RANK SO ASSIGNED HIM.

IT IS INCONCEIVABLE THAT A PAYMASTER'S CLERK, WHOSE APPOINTMENT IN THE REGULAR NAVY AS A COMMISSIONED OFFICER WAS WITH THE RANK OF LIEUTENANT UNDER THE ACT OF JUNE 4, 1920 (AUTHORIZING THE APPOINTMENT IN THE LOWER GRADES OF THE REGULAR NAVY OF A LIMITED NUMBER OF TEMPORARY AND RESERVE OFFICES WHO HAD HAD AND AS A REWARD FOR WORLD WAR SERVICE), SHOULD RECEIVE, IN ADDITION, AN ADVANCE IN RANK AND PAY ON THE RETIRED LIST FROM THAT OF LIEUTENANT TO COMMODORE WITHOUT HAVING PASSED THROUGH THE INTERMEDIATE GRADES, PARTICULARLY IN VIEW OF THE FACT THAT THE UNIFORM REWARD CONFERRED UPON OFFICERS OF DISTINGUISHED SERVICE HAS BEEN PROMOTION FOR THE PURPOSES OF PAY INTO THE NEXT GRADE ABOVE THAT IN WHICH THE OFFICER SERVED BEFORE RETIREMENT. SECTION 11, ACT MARCH 3, 1899, 30 STAT. 1007; ACT JUNE 29, 1906, 34 STAT. 554; SEC. 30, ACT MARCH 4, 1925, 43 STAT. 279; 22 OP.ATTY.GEN. 433; 26 ID. 57, 60; AND GIBSON V. UNITED STATES, 194 U.S. 182.

MOREOVER, ON SEPTEMBER 9, 1925, WHEN THE SECRETARY OF THE NAVY DIRECTED THE CHIEF OF THE BUREAU OF NAVIGATION TO ADVANCE LIEUTENANT DELANEY ON THE RETIRED LIST TO THE RANK OF COMMODORE SECTION 1481 OF THE REVISED STATUTES HAD BEEN AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1271, AS FOLLOWS:

SEC. 5. THAT HEREAFTER NO PERSON SHALL BE RETIRED WITH THE RANK OF COMMODORE, UNDER THE PROVISIONS OF SECTION 1481 OF THE REVISED STATUTES, UNLESS HE HAS ATTAINED AT THE TIME OF RETIREMENT THE RANK OF CAPTAIN IN THE NAVY.

THIS PROVISION IS MERELY DECLARATORY AND WAS ENACTED UPON THE RECOMMENDATION OF THE NAVY DEPARTMENT TO REMOVE ALL DOUBTS WITH RESPECT TO THE RIGHTS OF THOSE OFFICERS TRANSFERRED TO THE REGULAR NAVY, AS WAS LIEUTENANT DELANEY, IN THE RANK OF LIEUTENANT OR BELOW UNDER THE ACT OF JUNE 4, 1920.

IN VIEW OF 17 OP.ATTY.GEN. 60 THE AUTHORITY OF THE SECRETARY OF THE NAVY TO ADVANCE LIEUTENANT DELANEY, EVEN HAD HIS RETIREMENT BEEN OTHERWISE LEGAL, TO THE RANK OF COMMODORE ON THE RETIRED LIST AFTER THE AMENDMENT OF SECTION 1481 BY THE ACT OF MARCH 4, 1925, IS OPEN TO QUESTION. BUT INDEPENDENTLY OF THESE CONSIDERATIONS A QUESTION ARISES AS TO THE LEGALITY OF THE RETIREMENT OF LIEUTENANT DELANEY.

SECTION 1443 OF THE REVISED STATUTES, WHICH WAS SECTION 21 OF THE ACT OF AUGUST 3, 1861, 12 STAT. 290, PROVIDES:

WHEN ANY OFFICER OF THE NAVY HAS BEEN FORTY YEARS IN THE SERVICE OF THE UNITED STATES, HE MAY BE RETIRED FROM ACTIVE SERVICE BY THE PRESIDENT UPON HIS OWN APPLICATION.

SECTION 1444 OF THE REVISED STATUTES (SEC. 1, ACT OF DECEMBER 21, 1861,12 STAT. 329; SEC. 8, ACT JULY 16, 1862, 12 STAT. 584; SEC. 1, ACT JUNE 25, 1864, 13 STAT. 183; SEC. 3, ACT DECEMBER 21, 1864, 13 STAT. 420; AND ACT MARCH 3, 1873, 17 STAT. 556) PROVIDES:

WHEN ANY OFFICER BELOW THE RANK OF VICE ADMIRAL IS SIXTY-TWO YEARS OLD, HE SHALL, EXCEPT IN THE CASE PROVIDED IN THE NEXT SECTION, BE RETIRED BY THE PRESIDENT FROM ACTIVE SERVICE.

SECTION 1 OF THE ACT OF JUNE 25, 1864, HAD PROVIDED THAT SECTION 1 OF THE ACT OF DECEMBER 21, 1861,"SHALL NOT BE SO CONSTRUED AS TO RETIRE ANY OFFICER UNDER THE AGE OF 62 YEARS, AND WHOSE NAME SHALL NOT HAVE BEEN BORNE UPON THE NAVY REGISTER FOR A PERIOD OF 45 YEARS AFTER HE HAD ARRIVED AT THE AGE OF 16 YEARS.' THIS PROHIBITION SEEMS NOT TO HAVE BEEN CARRIED INTO THE REVISED STATUTES, AND THE UNIFORM ADMINISTRATIVE PRACTICE SEEMS TO HAVE BEEN TO PLACE ALL OFFICERS "EXCEPT IN THE CASE PROVIDED IN THE NEXT SECTION," ON THE RETIRED LIST WHEN THEY REACHED THE AGE OF 62 YEARS. BUT SEE 11 OP.ATTY.GEN. 144. IN THIS CONNECTION IT IS TO BE NOTED THAT LIEUTENANT DELANEY'S NAME HAS BEEN BORNE ON THE NAVY REGISTER ONLY SINCE JULY 1, 1915.

THE "NEXT SECTION" WHICH IS SECTION 1445 OF THE REVISED STATUTES (SEC. 6, ACT JULY 15, 1870) PROVIDES:

THE TWO PRECEDING SECTIONS SHALL NOT APPLY TO ANY LIEUTENANT COMMANDER, LIEUTENANT, MASTER, ENSIGN, MIDSHIPMAN, PASSED ASSISTANT SURGEON, PASSED ASSISTANT PAYMASTER, FIRST ASSISTANT ENGINEER, ASSISTANT SURGEON, ASSISTANT PAYMASTER, OR SECOND ASSISTANT ENGINEER; AND SUCH OFFICERS SHALL NOT BE PLACED UPON THE RETIRED LIST, EXCEPT ON ACCOUNT OF PHYSICAL OR MENTAL DISABILITY.

THIS IS A PROHIBITION AGAINST PLACING PASSED ASSISTANT PAYMASTERS UPON THE RETIRED LIST FOR AGE OR LENGTH OF SERVICE. THEREFORE, UNLESS THIS SECTION HAS BEEN REPEALED THE RETIREMENT OF LIEUTENANT DELANEY AT THE AGE OF 64, IN ANY RANK, WAS ILLEGAL.

THE ACT OF AUGUST 29, 1916, 39 STAT. 579, AFTER PROVIDING FOR THE RETIREMENT OF CAPTAINS, COMMANDERS, AND LIEUTENANT COMMANDERS WHO BECOME INELIGIBLE FOR PROMOTION ON ACCOUNT OF AGE, PROVIDED AS FOLLOWS:

EXCEPT AS HEREIN OTHERWISE PROVIDED, HEREAFTER THE AGE FOR RETIREMENT OF ALL OFFICERS OF THE NAVY SHALL BE SIXTY-FOUR YEARS INSTEAD OF SIXTY-TWO YEARS AS NOW PRESCRIBED BY LAW.

IT SEEMS OBVIOUS THIS PROVISION WAS MERELY AN AMENDMENT TO SECTION 1444 OF THE REVISED STATUTES AND REQUIRED THE CONTINUANCE ON THE ACTIVE LIST FOR TWO YEARS LONGER OF THOSE OFFICERS WHO WOULD OTHERWISE HAVE BEEN RETIRED AT THE AGE OF 62. THE HEARINGS ON THE ACT OF AUGUST 29, 1916, INDICATE THAT WAS THE OBJECT INTENDED AND IT HAS BEEN SO REGARDED IN THE ARRANGEMENT OF THE STATUTES AT LARGE (MARGINAL NOTATION); THE COMPILED STATUTES; BARNES' FEDERAL CODE, H.R. 12 (IN THE SENATE OF THE UNITED STATES, JANUARY 15, 1924); LAWS RELATING TO THE NAVY, ANNOTATED, 1922, AND OTHER SIMILAR COMPILATIONS.

IT APPEARS THAT IN 1920 THE NAVY DEPARTMENT ADDRESSED RECOMMENDATIONS TO THE CHAIRMAN OF THE HOUSE OF REPRESENTATIVES REVISION OF LAWS COMMITTEE, WHEREIN IT WAS SUGGESTED THAT THOUGH THE MATTER WAS NOT FREE FROM DOUBT THE VIEW OF THE DEPARTMENT WAS THAT THE PROVISION LAST QUOTED FROM THE ACT OF AUGUST 29, 1916, EFFECTED A REPEAL OF SECTION 1445 OF THE REVISED STATUTES. SUCH A CONSTRUCTION SEEMS TO IGNORE FUNDAMENTAL RULES OF STATUTORY CONSTRUCTION IN THAT IT (1) RECOGNIZES A REPEAL BY IMPLICATION, OF A SPECIAL ACT APPLYING SPECIFICALLY TO OFFICERS OF A CERTAIN CLASS, BY A GENERAL ACT, (2) GIVES AN EXTREME APPLICATION TO THE WORD "ALL" IN THE ACT OF AUGUST 29, 1916, AND REGARDS THAT WORD TO BE SO MUCH MORE COMPREHENSIVE THAN THE WORD "ANY" USED IN SECTION 1443 AND 1444 OF THE REVISED STATUTES AS TO BE FREE FROM THE LIMITATION IMPOSED BY SECTION 1445, AND (3) ATTRIBUTES NO MEANING WHATEVER TO THE WORDS "INSTEAD OF SIXTY-TWO YEARS AS NOW PRESCRIBED BY LAW.' SEE IN THIS CONNECTION POTRI V. CREELMAN LUMBER COMPANY, 199 U.S. 487, 497; LAWS RELATING TO THE NAVY, ANNOTATED, 1922, INTRODUCTION VI, C, 2, 4, AND VI, D, 8.

IF THE COMPREHENSIVE MEANING THE DEPARTMENT HAS ATTRIBUTED TO THE WORD "ALL" IN THE ACT OF AUGUST 29, 1916, BE ACCEPTED IT WOULD SEEM SECTION 1443 OF THE REVISED STATUTES PROVIDING FOR VOLUNTARY RETIREMENT AFTER 40 YEARS AND THE PROVISION IN THE ACT OF MAY 13, 1908, 35 STAT. 128, AUTHORIZING VOLUNTARY RETIREMENTS, IN THE DISCRETION OF THE PRESIDENT, AFTER 30 YEARS' SERVICE, MIGHT WITH EQUAL REASON BE REGARDED AS REPEALED.

THAT THE CONGRESS NEVER INTENDED AND HAS NOT RECOGNIZED A REPEAL OF SECTION 1445 BY THE ACT OF AUGUST 29, 1916, IS EVIDENT FROM THE ACT OF JULY 1, 1918, 40 STAT. 704, 709, WHICH, AFTER AMENDING THE ACT OF AUGUST 29, 1916, AND PROVIDING FOR REORGANIZATION OF THE NAVAL DENTAL CORPS, PROVIDED AS FOLLOWS:

OFFICERS OF THE NAVAL DENTAL CORPS SHALL BECOME ELIGIBLE FOR RETIREMENT IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS NOW PRESCRIBED BY LAW FOR OFFICERS OF THE NAVAL MEDICAL CORPS, EXCEPT THAT SECTION FOURTEEN HUNDRED AND FORTY-FIVE OF THE REVISED STATUTES OF THE UNITED STATES SHALL NOT BE APPLICABLE TO DENTAL OFFICERS, AND THEY SHALL NOT BE ENTITLED TO RANK ABOVE LIEUTENANT COMMANDER ON THE RETIRED LIST, OR TO RETIRED PAY ABOVE THAT OF CAPTAIN.

A SUBSTANTIALLY SIMILAR QUESTION OF STATUTORY CONSTRUCTION WAS BEFORE THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF UNITED STATES V. NOCE, DECIDED JUNE 8, 1925, 268 U.S. 613, 45 S.C.R. 610. THE COURT OF CLAIMS HAD HELD, 58 CT.CLS. 688, THAT THE PROVISO IN SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 601, TO THE EFFECT THAT THEREAFTER LONGEVITY PAY FOR OFFICERS IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, PUBLIC HEALTH SERVICE, AND COST AND GEODETIC SURVEY "SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICES" BY NECESSARY IMPLICATION REPEALED THE PROVISOS CONTAINED IN THE ARMY APPROPRIATION ACT OF AUGUST 24, 1912, SEC. 6, 37 STAT. 569, 594, AND THE NAVAL APPROPRIATION ACT OF MARCH 4, 1913, 37 STAT. 891, PROHIBITING THE COUNTING OF TIME SPENT IN MILITARY OR NAVAL ACADEMY IN COMPUTING LENGTH OF SERVICE AS A BASIS FOR LONGEVITY PAY. IN REVERSING THIS JUDGMENT OF THE COURT OF CLAIMS THE SUPREME COURT USED THE FOLLOWING LANGUAGE:

* * * THIS, IT SEEMS TO US, IS A STRAINED METHOD OF FIRST FINDING AN INCONSISTENCY, BY NO MEANS CLEAR, IF IT EXISTS AT ALL, AND THEN ERECTING IT INTO AN IMPLIED REPEAL. IMPLIED REPEALS ARE NOT FAVORED. * * *

THIS LANGUAGE APPLIES WITH EQUAL FORCE TO THE PRESENT CASE; THERE CAN BE NO DOUBT THAT SECTION 1445 IS IN FULL FORCE AND EFFECT IN SO FAR AS IT RELATES TO PASSED ASSISTANT PAYMASTERS.

THE PLACING OF PASSED ASSISTANT PAYMASTER DELANEY UPON THE RETIRED LIST "EXCEPT ON ACCOUNT OF PHYSICAL OR MENTAL DISABILITY" WAS, THEREFORE, CONTRARY TO LAW.

FOR THAT AND THE OTHER REASONS HEREINBEFORE STATED IT MUST BE HELD HE IS NOT ENTITLED TO THE PAY OF A COMMODORE ON THE RETIRED LIST, OR THE DIFFERENCE BETWEEN THAT RATE OF PAY AND THE RETIRED PAY OF A LIEUTENANT, WHICH HE HAS RECEIVED.

HOWEVER, HE HAVING ACQUIESCED IN HIS ILLEGAL RETIREMENT, AND ANOTHER OFFICER HAVING BEEN PROMOTED TO AND CONFIRMED BY THE SENATE IN THE SUPPOSED VACANCY THUS CREATED ON THE ACTIVE LIST, NO QUESTION WILL BE RAISED AT THIS TIME CONCERNING PASSED ASSISTANT PAYMASTER DELANEY'S RIGHT TO RECEIVE THE RETIRED PAY OF A LIEUTENANT WHICH IS THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE LEGALLY RETIRED ON ACCOUNT OF PHYSICAL OR MENTAL DISABILITY. IT IS INCUMBENT ON THE DEPARTMENT, HOWEVER, TO RECOMMEND TO CONGRESS THE ENACTMENT OF LEGISLATION THAT WILL LEGALIZE THE STATUS OF DELANEY (AND POSSIBLY OTHERS SIMILARLY SITUATED) ON THE RETIRED LIST.