A-16557, MARCH 22, 1927, 6 COMP. GEN. 604

A-16557: Mar 22, 1927

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IS NOT ENTITLED TO THE RETIRED PAY OF A COMMODORE UNDER SECTION 1481. THIS QUESTION IS PRESENTED BECAUSE OF A DECISION RENDERED BY YOU SEPTEMBER 24. DELANEY (SC) WAS NOT LEGALLY RETIRED WITH THE RANK OF COMMODORE AND WAS ENTITLED ONLY TO THE RETIRED PAY OF A LIEUTENANT. IT IS STATED BY LIEUTENANT LANKFORD (SC) THAT "UNTIL INSTRUCTIONS ARE RECEIVED COMMODORE CRAIG WILL BE PAID THE RETIRED PAY AS OF A LIEUTENANT AFTER 30 YEARS' SERVICE.'. WHILE IN FORM THE QUESTION PRESENTED IS ONE OF PAY. IF HIS RANK IS THAT OF COMMODORE THERE IS NO QUESTION AS TO THE AMOUNT OF PAY HE SHOULD RECEIVE. CRAIG WAS RETIRED FOR AGE ON DECEMBER 28. WHO SHALL HAVE SERVED FAITHFULLY FOR FORTY-FIVE YEARS. HAVE THE RELATIVE RANK OF COMMODORE.

A-16557, MARCH 22, 1927, 6 COMP. GEN. 604

PAY, RETIRED - NAVAL OFFICER A LIEUTENANT, CONSTRUCTION CORPS, UNITED STATES NAVY, RETIRED FOR AGE DECEMBER 28, 1924, IS NOT ENTITLED TO THE RETIRED PAY OF A COMMODORE UNDER SECTION 1481, REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MARCH 22, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 4, 1926, AS FOLLOWS:

LIEUTENANT B. L. LANKFORD (SC), U.S.N., HAS REQUESTED MY INSTRUCTIONS AS TO WHETHER COMMODORE E. W. CRAIG (CC) SHOULD HEREAFTER BE PAID THE RETIRED PAY OF A COMMODORE OR THAT OF A LIEUTENANT. THIS QUESTION IS PRESENTED BECAUSE OF A DECISION RENDERED BY YOU SEPTEMBER 24, 1926 (6 COMP. GEN. 203), HOLDING THAT EDWARD F. DELANEY (SC) WAS NOT LEGALLY RETIRED WITH THE RANK OF COMMODORE AND WAS ENTITLED ONLY TO THE RETIRED PAY OF A LIEUTENANT.

IT IS STATED BY LIEUTENANT LANKFORD (SC) THAT "UNTIL INSTRUCTIONS ARE RECEIVED COMMODORE CRAIG WILL BE PAID THE RETIRED PAY AS OF A LIEUTENANT AFTER 30 YEARS' SERVICE.'

WHILE IN FORM THE QUESTION PRESENTED IS ONE OF PAY, IN SUBSTANCE IT INVOLVES THE LEGALITY OF CRAIG'S RETIREMENT WITH THE RANK OF COMMODORE. IF HIS RANK IS THAT OF COMMODORE THERE IS NO QUESTION AS TO THE AMOUNT OF PAY HE SHOULD RECEIVE. (SEE 31 OP.ATTY.GEN. 320, JULY 19, 1918.)

WHILE SERVING ON THE ACTIVE LIST OF THE CONSTRUCTION CORPS, WITH THE RANK OF LIEUTENANT, CRAIG WAS RETIRED FOR AGE ON DECEMBER 28, 1924, WITH THE RANK OF COMMODORE, PURSUANT TO SECTION 1481, REVISED STATUTES, WHICH, AS ORIGINALLY ENACTED, READ AS FOLLOWS:

"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.'

THIS SECTION WAS AMENDED BY THE ABOLITION OF THE ENGINEER CORPS, THE CHANGE IN DESIGNATION OF THE PAY CORPS TO THE SUPPLY CORPS, THE CHANGE OF WORDS "RELATIVE RANK OF" TO READ "RANK OF," AND THE CHANGE OF THE RETIREMENT AGE FROM 62 TO 64 YEARS. NONE OF THESE AMENDMENTS AFFECTS THIS CASE. IT WAS FURTHER PROVIDED BY AN ACT APPROVED AUGUST 5, 1882 (22 STAT. 286), THAT THEREAFTER THERE SHOULD BE NO PROMOTION NOR INCREASE OF PAY IN THE RETIRED LIST OF THE NAVY, BUT THAT THE RANK AND PAY OF OFFICERS ON THE RETIRED LIST SHOULD BE THE SAME THAT THEY WERE WHEN SUCH OFFICERS WERE RETIRED. THIS HAD THE EFFECT OF REPEALING SECTION 1481 IN SO FAR AS THAT SECTION AUTHORIZED ADVANCEMENT IN RANK OF OFFICERS WHO COMPLETED FORTY YEARS IN THE SERVICE AFTER THEY HAD BEEN PLACED ON THE RETIRED LIST (32 OP.ATTY.GEN. 406, JANUARY 28, 1921). AS CRAIG HAD MORE THAN FORTY YEARS' SERVICE PRIOR TO HIS RETIREMENT, HIS RIGHT TO THE RANK OF COMMODORE UNDER SECTION 1481 WAS NOT AFFECTED BY ANYTHING CONTAINED IN THE ACT OF AUGUST 5, 1882.

IN YOUR DECISION ABOVE CITED YOU EXPRESSED THE VIEW THAT SECTION 1481, REVISED STATUTES, APPLIED ONLY TO OFFICERS WHO HAD ATTAINED THE RANK OF CAPTAIN ON THE ACTIVE LIST AT THE TIME OF THEIR RETIREMENT. THIS IS NOT SUPPORTED BY THE LANGUAGE OF SECTION 1481, AND IS CONTRARY TO THE CONSTRUCTION WHICH WAS PLACED THEREON BY THE ATTORNEY GENERAL IN THE CASE OF NATHANIEL M. TERRY, PROFESSOR OF MATHEMATICS, WHO HELD THE RANK OF LIEUTENANT ON THE ACTIVE LIST AT THE TIME OF HIS RETIREMENT WITH THE RANK OF COMMODORE (32 OP.ATTY.GEN. 129, FEB. 20, 1920). FURTHERMORE, SECTION 1481 WAS EXPRESSLY AMENDED BY THE ACT OF MARCH 4, 1925, SECTION 5 (43 STAT. 1271), WHICH PROVIDED 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.' AS CRAIG WAS RETIRED PRIOR TO THIS AMENDMENT OF MARCH 4, 1925, AND AS THE AMENDMENT IN TERMS APPLIED ONLY TO OFFICERS THEREAFTER RETIRED, IT IS OBVIOUS THE SAID AMENDMENT HAS NO EFFECT WHATEVER UPON HIS CASE, EXCEPT IN SO FAR AS IT PLAINLY EVIDENCES THAT CONGRESS WAS AWARE OF THE FACT THAT, PRIOR THERETO, OFFICERS WERE RETIRED WITH THE RANK OF COMMODORE WHEN THEY HAD NOT ATTAINED THE RANK OF CAPTAIN ON THE ACTIVE LIST, AND THAT IT DID NOT INTEND TO MAKE ANY CHANGE IN THE LAW AS TO PAST CASES. (SEE H.REPT.NO. 1558 ON S. 4137, 67TH CONG. 4TH SESS., PP. 5-8; H.REPT.NO. 31, ON H.R. 2588, 68TH CONG. 1ST SESS., PP. 6-9; S.REPT.NO. 1072 ON H.R. 2688, 68TH CONG. 2D SESS., PP. 11, 12; SEE ALSO, HEARINGS BEFORE COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES, 1922-1923, PP. 1514 AND 1701-1705, QUOTING LETTERS FROM SECY. NAVY, DEC. 11, 1920, JULY 22, 1921, AND JAN. 8, 1923; SEE ALSO, HEARINGS BEFORE SENATE COMMITTEE ON NAVAL AFFAIRS, 68TH CONG. 1ST SESS., P. 128.)

BY SECTION 20 OF THE SO-CALLED EQUALIZATION ACT APPROVED JUNE 10, 1926 (PUB.NO. 366) IT WAS PROVIDED THAT "HEREAFTER SECTION 1481, REVISED STATUTES OF THE UNITED STATES, AS AMENDED, SHALL APPLY ONLY TO OFFICERS OF THE CORPS OF PROFESSORS OF MATHEMATICS.' HERE, AGAIN, THE AMENDMENT MADE BY CONGRESS IS IN TERMS APPLICABLE ONLY TO CASES THEREAFTER ARISING.

IN YOUR AFORESAID DECISION OF SEPTEMBER 24, 1926, YOU FURTHER EXPRESSED THE VIEW THAT THE ACT OF AUGUST 29, 1916 (39 STAT. 579), WHICH PROVIDED THAT THEREAFTER "THE AGE FOR RETIREMENT OF ALL OFFICERS OF THE NAVY SHALL BE SIXTY-FOUR YEARS INSTEAD OF SIXTY-TWO YEARS AS NOW PROVIDED FOR BY LAW," DID NOT AUTHORIZE THE RETIREMENT OF CERTAIN OFFICERS AT THE AGE OF SIXTY-FOUR YEARS, BECAUSE OF SECTION 1445, REVISED STATUTES, WHICH PROVIDED THAT OFFICERS OF THE GRADES THEREIN NAMED SHOULD NOT BE PLACED UPON THE RETIRED LIST "EXCEPT ON ACCOUNT OF PHYSICAL OR MENTAL DISABILITY.' IF CORRECT, YOUR OPINION UPON THIS POINT AS EXPRESSED IN THE DELANEY CASE WOULD NEVERTHELESS HAVE NO APPLICATION TO CRAIG'S RETIREMENT AS THE LATTER WAS AN OFFICER OF THE CONSTRUCTION CORPS AT THE DATE OF HIS RETIREMENT, AND CONSTRUCTION OFFICERS ARE NOT NAMED IN SECTION 1445, REVISED STATUTES.

THE QUESTION WHETHER CRAIG WOULD BE ENTITLED TO THE RANK OF COMMODORE WHEN RETIRED AT THE AGE OF SIXTY-FOUR YEARS WAS CONSIDERED AND ANSWERED IN THE AFFIRMATIVE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY IN A MEMORANDUM DATED MAY 21, 1924 (FILE 27231-141:8AD/3), COPY OF WHICH IS ENCLOSED HEREWITH.

FROM THE FOREGOING IT WILL BE SEEN THAT THE RETIREMENT OF E. W. CRAIG WITH THE RANK OF COMMODORE WAS IN ACCORDANCE WITH SECTION 1481, REVISED STATUTES, AS CONSTRUED BOTH BY THIS DEPARTMENT AND THE ATTORNEY GENERAL, AND THAT CONGRESS ACCEPTED AND APPROVED OF SUCH ADMINISTRATIVE CONSTRUCTION OF THE SAID SECTION WHEN IT TWICE AMENDED SAME WITH THE LIMITATION THAT SUCH AMENDMENTS SHOULD APPLY ONLY TO CASES THEREAFTER ARISING.

IT IS ACCORDINGLY MY OPINION THAT ELLIS W. CRAIG, CONSTRUCTION CORPS, WAS LEGALLY RETIRED WITH THE RANK OF COMMODORE; THAT HE NOW HOLDS THAT RANK IN ACCORDANCE WITH LAW; AND THAT HE SHOULD, THEREFORE, CONTINUE TO BE PAID AS A COMMODORE ON THE RETIRED LIST OF THE CONSTRUCTION CORPS. AN EXPRESSION OF YOUR CONCURRENCE IN THIS CONCLUSION WOULD BE APPRECIATED.

I APPREHEND THAT YOUR SUBMISSION OF THE MATTER IS TO SECURE A DECISION THAT WILL GOVERN IN THE SETTLEMENT OF THE ACCOUNTS CONTAINING PAYMENTS OF RETIRED PAY TO E. W. CRAIG, FORMERLY A LIEUTENANT, CONSTRUCTION CORPS, ON THE ACTIVE LIST OF THE NAVY. THE SUGGESTION THAT THE ONLY QUESTION FOR DECISION IS THE RANK OF CRAIG ON THE RETIRED LIST, THAT HIS RIGHT TO PAY FOLLOWS AS A MATTER OF COURSE, AND THAT THE QUESTION THEREFORE DOES NOT INVOLVE A QUESTION OF PAY, IS STATED TO BE BASED ON AN OPINION OF THE ATTORNEY GENERAL, 31 OP.ATTY.GEN. 320.

THE JURISDICTION OF THIS OFFICE IN THE SETTLEMENT OF ACCOUNTS IS TO DETERMINE ANY QUESTION INVOLVED THEREIN; THAT JURISDICTION IS SPECIFICALLY RECOGNIZED IN SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 208, AND SECTIONS 301 AND 304 OF THE ACT OF JUNE 10, 1921, 42 STAT. 23. THE SUGGESTION THAT CERTAIN OR SOME QUESTIONS ARE INDEPENDENT OF THE QUESTION OF THE PAYMENT PROPOSED OR WHICH WILL RESULT CAN NOT BE LOOKED UPON FAVORABLY, AS IT WOULD LEAD TO DETERMINATION BY OTHERS OF QUESTIONS INVOLVED IN THE SETTLEMENT OF ACCOUNTS INDEPENDENTLY OF THIS OFFICE, TO WHICH SUCH DETERMINATIONS ARE COMMITTED BY THE MOST PRECISE AND CLEAREST PROVISIONS OF STATUTE LAW, AND BE A TURNING BACK TO THE CONFLICT AND CONFUSION ACCEPTED AS ENDED NOW FOR MANY YEARS BY THE ACTS OF MARCH 30, 1868, 15 STAT. 54, AND JULY 31, 1894, 28 STAT. 205. THE NULLIFICATION OF THE LAWS MADE FOR AN INDEPENDENT AUDIT MAY NOT BE OBTAINED INDIRECTLY BY INTERPRETING OR CONSTRUING AWAY THE PROVISIONS OF LAW MADE FOR SUCH AN AUDIT. WHERE A QUESTION OF THE PAY OF AN OFFICER IS INVOLVED, ANY OTHER QUESTIONS NECESSARY TO BE DETERMINED IN ASCERTAINING HIS LEGAL RIGHT TO THE PAY AND THE RATE OF PAY IS WITHIN THE EXCLUSIVE JURISDICTION OF THIS OFFICE, WITH THE RIGHT ON THE PART OF THE CLAIMANT IF DISSATISFIED TO PRESENT THE MATTER IN SUCH FORM AS MAY BE OPEN TO HIM--- THE CONGRESS OR THE COURTS (SEE 4 COMP GEN. 961, WHERE THE MATTER IS CONSIDERED AT LENGTH).

THE QUESTION PRESENTED BY THE PRESENT SUBMISSION IS THE RATE OF RETIRED PAY TO WHICH CRAIG IS ENTITLED. IT APPEARS FROM THE NAVAL REGISTER THAT ELLIS WASHINGTON CRAIG, AFTER 39 YEARS 2 MONTHS AND 6 DAYS' SERVICE AS AN ENLISTED MAN, WARRANT OFFICER, AND CHIEF WARRANT OFFICER, WHILE HOLDING THE LATTER OFFICE, RANKING WITH BUT AFTER ENSIGN (AND INCLUDING SERVICE UNDER A TEMPORARY COMMISSION DURING THE WORLD WAR), WAS, ON JANUARY 6, 1921, COMMISSIONED A LIEUTENANT, REGULAR, IN THE CONSTRUCTION CORPS OF THE UNITED STATES NAVY UNDER SECTIONS 4 AND 5 OF THE ACT OF JUNE 4, 1920, 41 STAT. 835, AND WAS RETIRED FOR AGE DECEMBER 28, 1924, AFTER MORE THAN 40 YEARS' SERVICE IN THE NAVY. IT IS STATED THAT HE WAS RETIRED WITH THE RANK OF COMMODORE PURSUANT TO THE PROVISIONS OF SECTION 1481 OF THE REVISED STATUTES.

THE DEPARTMENT'S CONSTRUCTION OF THE SECTION AS IT EXISTED AT THE TIME OF CRAIG'S RETIREMENT IS THAT AN OFFICER OF ONE OF THE STAFF CORPS MENTIONED, WHO DURING MOST OF HIS 40 OR MORE YEARS' SERVICE RANKED WITH BUT AFTER ENSIGN, AND WHO WAS APPOINTED A LIEUTENANT, CONSTRUCTION CORPS, UNDER THE ACT OF 1920, IS ENTITLED ON RETIREMENT AT THE AGE OF 64, AFTER THREE YEARS' SERVICE AS A LIEUTENANT, AND WITH NO SERVICE ABOVE THAT RANK, TO BE RETIRED AS A COMMODORE; THAT IS, A JUNIOR (IN RANK) OFFICER, WHO DURING THE MOST OF HIS SERVICE IN THE NAVY SERVED IN A GRADE RANKING BELOW THAT OF THE LOWEST RANK OF COMMISSIONED OFFICERS SHALL, ON HIS RETIREMENT, BE RETIRED IN A RANK EQUAL TO THAT OF THE COMMANDER OF A SQUADRON OR A FLEET, AND THIS NOTWITHSTANDING THE RETIRED LIST OF THE NAVY CONTAINS THE NAMES OF MANY OFFICERS BOTH OF THE LINE AND STAFF WHO, AFTER AN EQUAL LENGTH OF SERVICE IN THE VARIOUS COMMISSIONED GRADES TO AND INCLUDING THAT OF CAPTAIN, WERE RETIRED IN THE GRADE OF CAPTAIN OR NOT ABOVE THAT OF COMMODORE.

WITH RESPECT TO SUCH A SITUATION IT WAS SAID IN DELANEY'S CASE, 6 COMP. GEN. 203, 206:

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 THE HONORARY RANK SO ASSIGNED HIM.

THAT CASE WAS DISPOSED OF ON OTHER GROUNDS, AND THE PRESENT SUBMISSION QUESTIONS THE SOUNDNESS OF THE VIEW AS TO THE INTENT OF SECTION 1481 STATED IN THAT DECISION.

SECTION 1481, REVISED STATUTES, WAS ORIGINALLY A PART OF SECTION 11 OF THE NAVAL APPROPRIATION ACT OF MARCH 3, 1871, 16 STAT. 537; SECTIONS 9, 10, 11, AND 12 OF THAT ACT PROVIDED:

SEC. 9. THAT OF THE NAVAL CONSTRUCTORS TWO SHALL HAVE THE RELATIVE RANK OF CAPTAIN, THREE OF COMMANDER, AND ALL OTHERS THAT OF LIEUTENANT COMMANDER OR LIEUTENANT; AND ASSISTANT NAVAL CONSTRUCTORS SHALL HAVE THE RELATIVE RANK OF LIEUTENANT OR MASTER; FOUR CHAPLAINS SHALL HAVE THE RELATIVE RANK OF CAPTAIN, SEVEN THAT OF COMMANDER, AND NOT MORE THAN SEVEN THAT OF LIEUTENANT COMMANDER OR LIEUTENANT; AND THAT THE PRESIDENT OF THE UNITED STATES IS HEREBY AUTHORIZED, IN HIS DISCRETION, TO DETERMINE AND FIX THE RELATIVE RANK OF CIVIL ENGINEERS: PROVIDED, THAT THE PAY OF SAID OFFICERS SHALL NOT BE INCREASED. SEC. 10. THAT THE FOREGOING GRADES, HEREBY ESTABLISHED FOR THE STAFF CORPS OF THE NAVY, SHALL BE FILLED BY APPOINTMENT FROM THE HIGHEST NUMBERS IN EACH CORPS, ACCORDING TO SENIORITY, AND THAT NEW COMMISSIONS SHALL BE ISSUED TO THE OFFICERS SO APPOINTED, IN WHICH COMMISSIONS THE TITLES AND GRADES HEREIN ESTABLISHED SHALL BE INSERTED; AND NO EXISTING COMMISSION SHALL BE VACATED IN THE SAID SEVERAL STAFF CORPS, EXCEPT BY THE ISSUE OF NEW COMMISSIONS REQUIRED BY THE PROVISIONS OF THIS ACT, AND NO OFFICER SHALL BE REDUCED IN RANK OR LOSE SENIORITY IN HIS OWN CORPS BY ANY CHANGE WHICH MAY BE REQUIRED UNDER THE PROVISIONS OF THIS ACT; AND THE OFFICERS OF THE STAFF CORPS OF THE NAVY SHALL TAKE PRECEDENCE IN THEIR SEVERAL CORPS, AND IN THEIR GRADES, AND WITH OFFICERS OF THE LINE WITH WHOM THEY HOLD RELATIVE RANK, ACCORDING TO LENGTH OF SERVICE IN THE NAVY: * * * AND PROVIDED FURTHER, THAT CHIEFS OF BUREAU MAY BE APPOINTED FROM OFFICERS HAVING THE RELATIVE RANK OF CAPTAIN IN THE STAFF CORPS OF THE NAVY ON THE ACTIVE LIST: AND PROVIDED FURTHER, THAT NO STAFF OFFICER SHALL, IN VIRTUE OF HIS RELATIVE RANK OR PRECEDENCE, HAVE ANY ADDITIONAL RIGHT TO QUARTERS: AND PROVIDED FURTHER, THAT ANY STAFF OFFICER OF THE NAVY WHO HAS PERFORMED THE DUTY OF CHIEF OF A BUREAU OF THE NAVY DEPARTMENT FOR A FULL TERM SHALL THEREAFTER BE EXEMPT FROM SEA DUTY, EXCEPT IN TIME OF WAR.

SEC. 11. THAT OFFICERS OF THE MEDICAL, PAY, AND ENGINEER CORPS, CHAPLAINS, AND PROFESSORS OF MATHEMATICS, AND ALSO 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, ON THE COMPLETION OF FORTY YEARS FROM THEIR ENTRY INTO THE SERVICE, SHALL ALSO FROM THAT TIME HAVE THE RELATIVE RANK OF COMMODORE; AND STAFF OFFICERS WHO HAVE BEEN OR SHALL BE RETIRED FOR CAUSES INCIDENT TO THE SERVICE BEFORE ARRIVING AT SIXTY TWO YEARS OF AGE SHALL HAVE THE SAME RANK ON THE RETIRED LIST AS PERTAINED TO THEIR POSITION ON THE ACTIVE LIST: PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO INCREASE THE PAY NOW PROVIDED FOR SAID SEVERAL STAFF OFFICERS.

SEC. 12. THAT THE CHIEFS OF THE BUREAU OF MEDICINE AND SURGERY, PROVISIONS AND CLOTHING, STEAM ENGINEERING, AND CONSTRUCTION AND REPAIR, SHALL HAVE THE RELATIVE RANK OF COMMODORE WHILE HOLDING SAID POSITION, (OR IF HERETOFORE OR HEREAFTER RETIRED THEREFROM BY REASON OF AGE OR LENGTH OF SERVICE,) AND SHALL HAVE, RESPECTIVELY, THE TITLE OF SURGEON-GENERAL, PAYMASTER-GENERAL, ENGINEER-IN-CHIEF, AND CHIEF CONSTRUCTOR: PROVIDED, THAT WHEN THE OFFICE OF CHIEF OF BUREAU IS FILLED BY A LINE OFFICER BELOW THE RANK OF COMMODORE, SAID OFFICER SHALL HAVE THE RELATIVE RANK OF COMMODORE DURING THE TIME HE HOLDS SAID OFFICE: AND PROVIDED FURTHER, THAT THE PAY OF CHIEFS OF BUREAU IN THE NAVY DEPARTMENT SHALL BE THE HIGHEST PAY OF THE GRADE TO WHICH THEY BELONG, BUT NOT BELOW THAT OF COMMODORE; AND OFFICERS OF THE STAFF NOW ON THE RETIRED LIST SHALL HAVE THE RANK THEREON TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY REMAINED IN THE ACTIVE LIST, UNLESS THEY SHALL BE ENTITLED TO HIGHER RANK. * * *

IT WILL BE SEEN THAT THE PORTION OF SECTION 11 WHICH BECAME SECTION 1481, REVISED STATUTES, WAS REENACTED PRACTICALLY WITHOUT CHANGE AND ON ITS REENACTMENT IN THE REVISED STATUTES IT INCLUDED WITHIN ITS TERMS ONLY SUCH CASES AS WERE INCLUDED WITHIN THE ORIGINAL PROVISIONS; UNITED STATES V. LE BRIS, 121 U.S. 278, WHERE THE COURT SAID WITH RESPECT TO THE PROVISION OF THE REVISED STATUTES, THAT:

* * * THE REENACTED SECTIONS ARE TO BE GIVEN THE SAME MEANING THEY HAD IN THE ORIGINAL STATUTE UNLESS A CONTRARY INTENTION IS PLAINLY MANIFESTED.

THE CITED SECTION 11 OF THE ACT OF 1871 WAS ORIGINALLY SECTION 7 OF HOUSE BILL 1832,"TO REGULATE RANK IN THE UNITED STATES NAVY, AND FOR OTHER PURPOSES," PASSED BY THE HOUSE OF REPRESENTATIVE JANUARY 23, 1871. SEE THE CONGRESSIONAL GLOBE, VOLUME 95 (3D SESS., 41ST CONG., PT. 1), PAGES 678 AND 682. THE SECTION HERE CONSIDERED WAS PASSED AS SECTION 11 OF THE APPROPRIATION ACT IN THE LANGUAGE REPORTED BY THE HOUSE NAVAL AFFAIRS COMMITTEE IN HOUSE BILL 1832. THAT BILL, AFTER PASSING THE HOUSE, WAS ADDED AS AN AMENDMENT TO THE NAVAL APPROPRIATION BILL IN THE SENATE ON MOTION OF MR. CRAGIN, CONGRESSIONAL GLOBE, THIRD SESSION, FORTY-FIRST CONGRESS, PAGE 1844.

THE PURPOSE OF THE BILL SEEMS TO HAVE BEEN TO SETTLE A CONTROVERSY BETWEEN LINE AND STAFF OFFICERS OF THE NAVY RESPECTING RANK AND PRECEDENCE. (STATEMENT OF MR. CRAGIN, P. 1844.) THE DEBATES ON THE BILL ARE NOT GENERALLY FOR CONSIDERATION IN ASCERTAINING THE INTENT OF THE LEGISLATION, BUT IN THE EVENT OF DOUBT THEY MAY BE EXAMINED TO ASCERTAIN THE OBJECT AND PURPOSE OF THE PROPOSED LEGISLATION, UNITED STATES V. THIND, 261 U.S. 204, 214; STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 50; AND THE REPORT OF THE COMMITTEE OR THE REPORT OR EXPLANATORY STATEMENTS OF THE MEMBER HAVING THE MATTER IN CHARGE ON THE FLOOR AS TO THE INTENT OF THE BILL OR ITS VARIOUS PROVISIONS "MAY BE REGARDED AS AN EXPOSITION OF THE LEGISLATIVE INTENT IN A CASE WHERE OTHERWISE THE MEANING OF A STATUTE IS OBSCURE.' DUPLEX CO. V. DEERING, 254 U.S. 443, 474, ET SEQ., AND CASES CITED.

IT APPEARS THAT MR. STEVENS (HON. AARON F.), OF NEW HAMPSHIRE, MADE THE REPORT FROM THE COMMITTEE ON NAVAL AFFAIRS OF THE HOUSE ON HOUSE BILL 1832 AND WAS IN CHARGE OF THE BILL ON ITS CONSIDERATION AND PASSAGE BY THE HOUSE (SEE P. 678, CONGRESSIONAL GLOBE), AND THE FOLLOWING EXCERPTS FROM HIS STATEMENT AS TO THE PURPOSE, OBJECT, AND INTENT OF THE PROPOSED LEGISLATION ARE FOUND ON PAGE 44, ET SEQ., OF THE APPENDIX TO THE CONGRESSIONAL GLOBE, FORTY-FIRST CONGRESS, THIRD SESSION:

I AM QUITE SURE THAT THE GENTLEMEN OF THIS HOUSE WHOSE ATTENTION I SHALL HAVE THE HONOR TO SECURE WILL NOT CONFESS THEMSELVES STRANGERS TO THE QUESTION RAISED BY THE PROVISIONS OF THIS BILL. NOR WILL THEY, I THINK, TREAT IT AS A TRIVIAL OR UNIMPORTANT QUESTION, CONNECTED AS IT IS WITH ONE OF THE PRINCIPAL BRANCHES OF THE PUBLIC SERVICE. I DO NOT SEEK TO DISGUISE THE FACT THAT WITHIN THE PAST TWO YEARS THE REGULATION OF RANK IN THE NAVY HAS BECOME A QUESTION OF MORE PUBLIC IMPORTANCE THAN HAS EVER BEEN CONCEDED TO IT IN FORMER TIMES OUTSIDE OF THOSE IMMEDIATELY INTERESTED IN ITS SETTLEMENT. IT IS BUT TRUTH TO SAY THAT NO QUESTION OF MILITARY ORGANIZATION AND DETAIL HAS EVER, EXCEPT IN TIME OF WAR, EXCITED SO MUCH INTEREST AS THAT TO WHICH I NOW DESIRE TO CALL THE ATTENTION OF THE HOUSE AND WHICH THIS BILL SEEKS TO REGULATE AND FIX UPON A JUST AND PERMANENT BASIS.

LET ME SAY, IN THE FIRST PLACE, THAT THIS IS A MILITARY QUESTION.

THE NAVY IS A MILITARY ORGANIZATION, WITH AN OFFICIAL BODY, CONSISTING OF LINE AND STAFF. THE LATTER ASK CONGRESS TO GIVE THEM THE RECOGNITION OF FIXED, DEFINITE, AND POSITIVE RANK WITHOUT ENHANCED COMMAND, THUS PLACING THEM ON THE SAME RELATIVE FOOTING WITH THE STAFF OF THE ARMY. THAT IS THEIR PRAYER.

IN THE NAVY THE STAFF DEPARTMENTS ARE REPRESENTED BY SURGEONS, PAYMASTERS, AND ENGINEERS; AND IT IS PROPOSED BY THE BILL TO ADD CHAPLAINS, CONSTRUCTORS, AND PROFESSORS OF MATHEMATICS. IN GENERAL TERMS THE LINE CONSISTS OF THE OFFICERS WHO HAVE COMMAND, FROM ADMIRAL TO MIDSHIPMAN. THE INTENSITY OF THE PENDING CONTROVERSY IS LARGELY DUE TO THE ATTEMPT, ON THE PART OF THE LINE, TO ABOLISH THE DISTINCTION OF LINE AND STAFF IN THE NAVY; TO OBLITERATE THE LATTER AS A DISTINCTIVE PART OF ITS ORGANIZATION, AND TO ARROGATE TO THE LINE BY LEGAL ENACTMENT THE ENTIRE PRESTIGE, REPRESENTATION, AND POWER OF ITS OFFICIAL CLASSES. * *

IT IS IMPORTANT TO NOTICE HERE THE STANDING OF THE LINE OF THE NAVY AT THE TIME THESE ORDERS WERE LEGALIZED AND THE SUBSEQUENT ADVANCEMENT IN LINEAL RANK DURING THE WAR. IN 1854 THERE WERE BUT THREE GRADES IN THE LINE OF THE NAVY, NAMELY, CAPTAIN, COMMANDER, AND LIEUTENANT, THE TITLE OF COMMODORE BEING ONE OF COURTESY ONLY, THE RANK BEING UNRECOGNIZED BY LAW. BUT, BY THE ACT OF JULY 16, 1862, CONGRESS CREATED FOR THE LINE OF THE NAVY THE ADDITIONAL GRADES OF REAR ADMIRAL, COMMODORE, LIEUTENANT COMMANDER, AND ENSIGN THUS INCREASING THE HIGHER AND LOWER GRADE OF THE LINE BY TWO. NOTHING, HOWEVER, WAS DONE FOR THE STAFF OF THE NAVY, BUT THEY WERE QUIETED WITH THE ASSURANCE THAT THEIR TURN WOULD COME IN GOOD TIME.

AT THIS TIME (1862) AS HAS BEEN SEEN, THE STAFF ENJOYED BUT THREE RANKS, NAMELY, COMMANDER, LIEUTENANT, AND MASTER, WHILE AT THE SAME TIME THE LINE CONTENDED, AS THEY DO NOW, THAT THE LANGUAGE OF THE ORDERS OF 1846 AND 1847, BEFORE CITED, CONFERRED NO REAL AND SUBSTANTIAL RANK, BUT ONLY AN AMBIGUOUS, UNCERTAIN STATUS, TREATED THE CLAIM OF THE STAFF TO RANK WITH DERISION, AND TO USE THE LANGUAGE OF THE LINE ITSELF,"LOOKED UPON THEIR ASSUMPTION OF DE FACTO RANK AS AN INSULT TO THE NAVAL PROFESSION, AND NO ONE ATTACHES THE SLIGHTEST VALUE TO IT," THUS NULLIFYING, AS WAS TOO OFTEN THEIR CUSTOM, THE LAWS OF CONGRESS.

IN 1864 A BOARD CONSISTING OF LINE OFFICERS, MESSRS. TAYLOR, CASE, ROGERS, AND OTHERS, CAPTAINS AND COMMANDERS UNDERTOOK TO SETTLE THE VEXED QUESTION BY REGULATIONS. * * *

THIS LINE BOARD OF 1864, IN THEIR REPORT AND COMMUNICATION, STATED AND ENFORCED THEIR CONCLUSIONS, EXHIBITING THE JUSTICE OF THE PRINCIPLE EMBRACED IN THE PENDING BILL. I QUOTE THEIR LANGUAGE:

"IN THE ARRANGEMENT OF THE ASSIMILATED RANK IT WAS SUPPOSED THAT A MASTER, FIRST ASSISTANT ENGINEER, ASSISTANT SURGEON, ASSISTANT PAYMASTER, ETC., HAD FINISHED THEIR PRELIMINARY STUDIES AND BECOME PREPARED FOR WORK; AND THOSE OF THE SAME DATE WERE ADVANCED TOGETHER IN THAT ORDER TO THE RANK OF COMMODORE; * * * THAT IS, WHEN THE MASTER WAS PROMOTED TO A LIEUTENANT, THE OTHERS HAD THE SAME ASSIMILATED RANK, AND SO ON.'

"THUS WE HAVE FOUR YOUNG MEN STARTING UPON THEIR CAREER AT THE SAME TIME, WITH EQUAL RANK ASSIGNED TO EACH. IT IS NOT APPARENT THAT ANY PARTICULAR FAVOR SHOULD BE SHOWN TO EITHER IN HIS ADVANCEMENT. ON THE CONTRARY, IF THEY RUN SIDE BY SIDE UNTIL THEY REACH THE HIGHEST GRADE PROVIDED FOR REGULAR PROMOTIONS, IT IS CONCEIVED THAT A GREATER DEGREE OF HARMONY WILL BE OBTAINED THAN HAS EXISTED SINCE THE FIRST ORDER FOR THE ASSIMILATION OF RANK WAS ISSUED.'

LET US LOOK NOW AT THE DETAILS OF THE BILL. AS I HAVE SAID, IT HAS BEEN PREPARED WITH MUCH CARE AND AFTER A MOST EXTENDED EXAMINATION, AND WITH A VIEW TO THE BEST INTERESTS OF THE WHOLE SERVICE AND JUSTICE TO ALL ITS CONSTITUENT PARTS. THE SUBJECT IS SO LARGELY INVOLVED IN PROFESSIONAL AND LEGAL TECHNICALITIES THAT NOTHING LESS THAN THE MOST ASSIDUOUS AND CAREFUL CONSIDERATION OF YOUR COMMITTEE COULD BRING THEM TO A SATISFACTORY CONCLUSION. AND I FIND IT NOW ALMOST IMPOSSIBLE TO EXPLAIN IN THESE GENERAL REMARKS ALL ITS MINUTE DETAILS OR ITS INTRICATE RELATIONS TO THE SERVICE. AND YOU WILL PERMIT ME TO SAY VERY FRANKLY THAT IT IS ONE OF THOSE MEASURES WHICH IN ITS DETAILS MUST, IN A VERY GREAT DEGREE, COMMEND ITSELF TO THE HOUSE ONLY THROUGH THE LABOR AND RECOMMENDATION OF THE COMMITTEE. BUT HAVING ENDEAVORED TO STATE GENERALLY THE PRINCIPLES OF MILITARY ORGANIZATION ON WHICH IT RESTS, I MAY ALLUDE NOW MORE PARTICULARLY TO THE SCOPE AND PROVISIONS OF THE BILL ITSELF. IT LOOKS TO THE ORGANIZATION OF THE NAVY AS THE BASIS OF ITS REVISION OF THE GRADES. IN ITS RELATION TO THAT ORGANIZATION IT RESTORES THE GRADES OF CAPTAIN AND LIEUTENANT COMMANDER, WHICH WAS THE CHARACTERISTIC OF THE DEPARTMENT ORDER MARCH 13, 1863; AND WHILE IT GIVES TO THE HEADS OF BUREAUS THE RANK OF COMMODORE AS IN THAT ORDER, IT PROVIDES THAT RETIRED OFFICERS OF THE STAFF WHO HAVE SERVED FAITHFULLY FORTY-FIVE YEARS SHALL HAVE THE RANK OF COMMODORE (THOSE ARE THE FLEET OFFICERS OF THE WAR); AND THAT OFFICERS RETIRED AT SIXTY-TWO YEARS UNDER THE EXISTING LAWS WHO HAVE SERVED FORTY YEARS FAITHFULLY SHALL ALSO HAVE THE SAME RANK.

THE ADVANTAGES SECURED BY THE BILL ARE---

4. IT GIVES TO THE SURGEONS, PAYMASTERS, AND ENGINEERS OF THE NAVY, WITHOUT INTERFERENCE WITH THE COMMAND OF THE VESSEL, THAT POSITION, CONSIDERATION, COMFORT, AND SOCIAL RECOGNITION, WITHOUT WHICH HIGH PROFESSIONAL CULTURE AND TALENT CAN NOT BE SECURED IN ANY MILITARY ORGANIZATION.

6. IT BRINGS HARMONY TO THIS BRANCH OF THE PUBLIC SERVICE BY ELIMINATING FROM IT A RADICAL AND VICIOUS DEFECT; ONE BY WHICH BRAINS, CULTURE, AND PROFESSIONAL EXPERIENCE ARE SUBORDINATED TO THE ARTIFICIAL DISTINCTIONS OF RANK, WITHOUT REGARD TO AGE, LENGTH OF SERVICE, OR RESPONSIBILITY.

8. IT IS CARRYING OUT THE POLICY OF FORMER CONGRESSES IN PROMOTING AND ADVANCING STAFF OFFICERS PARI PASSU WITH THOSE OF THE LINE WITHIN THE LIMITS OF MILITARY USAGE. THE DECLARED PURPOSE OF THE BILL WAS TO SECURE TO STAFF OFFICERS, RANK COMPARABLE TO THAT OF OFFICERS OF THE LINE AND WHICH WOULD BE ATTAINED IN DUE COURSE OF PROMOTION WHILE ON THE ACTIVE LIST TO AND INCLUDING THE RANK OF CAPTAIN. IT WAS PROVIDED THAT ON RETIREMENT SUCH OFFICERS AFTER 45 YEARS' FAITHFUL SERVICE, OR WHEN RETIRED FOR AGE AFTER 40 YEARS OF FAITHFUL SERVICE, SHOULD HAVE THE RANK OF COMMODORE, THE RANK ACCORDED BY THE BILL TO CHIEFS OF BUREAUS, THE RANK, IN THE LANGUAGE OF MR. STEVENS, OF "FLEET OFFICERS OF THE WAR; " THAT IS, FLAG RANK, A RANK EQUIVALENT TO THAT OF THE COMMANDER IN CHIEF OF THE FLEET AT THE BATTLE OF MANILA BAY IN 1898. 35 CT.CLS. 172, 186; 178 U.S. 510. THE RETIREMENT IN THE GRADE OF COMMODORE OF A LIEUTENANT WAS NOT WITHIN THE PURPOSE OR INTENT OF THE ACT. IT WAS NOT THE DESIGN OF THE STATUTE TO INFLICT UPON LINE OFFICERS A GREATER DISCRIMINATION THAN HAD THERETOFORE BEEN IN EXISTENCE AGAINST STAFF OFFICERS. THE ACT WAS DESIGNED TO SECURE TO STAFF OFFICERS THE HONORARY RANK OF COMMODORE; THE RANK OF COMMODORE WAS OPEN TO AND POSSIBLE OF ATTAINMENT BY LINE OFFICERS AND IMPOSSIBLE OF ATTAINMENT ON THE ACTIVE LIST BY OFFICERS OF THE STAFF CORPS EXCEPT AS CHIEF OF A BUREAU. ON ORIGINAL APPOINTMENT UNDER THE LIMITATIONS AS TO AGE AT APPOINTMENT IN ANY OF THE STAFF CORPS, AT THE END OF 40 YEARS' SERVICE IT WAS POSSIBLE FOR AN OFFICER TO ATTAIN TO THE RANK OF CAPTAIN, AND ON HIS RETIREMENT AFTER 45 YEARS' FAITHFUL SERVICE, OR FOR AGE AFTER 40 YEARS' FAITHFUL SERVICE, HE WAS TO BE THEREAFTER ACCORDED THE HONORARY RANK OF COMMODORE. IT WAS NOT DESIGNED TO ESTABLISH THE MILITARY MONSTROSITY OF REQUIRING THE PROMOTION TO THE FLAG RANK OF COMMODORE OF ONE WHO HAD SERVED PRACTICALLY ALL OF HIS CAREER IN THE NAVY IN A GRADE RANKING WITH BUT AFTER ENSIGN, WHO DURING HIS ENTIRE NAVAL CAREER HAD NEVER ATTAINED COMMAND RANK. "ALL LAWS ARE TO BE GIVEN A SENSIBLE CONSTRUCTION; AND A LITERAL APPLICATION OF A STATUTE, WHICH WOULD LEAD TO ABSURD CONSEQUENCES, SHOULD BE AVOIDED WHENEVER A REASONABLE APPLICATION CAN BE GIVEN TO IT, CONSISTENT WITH THE LEGISLATIVE PURPOSE.' UNITED STATES V. KATZ, 46 SUP.CT. 513, 514, CITING HAWAII V. MANKICHI, 190 U.S. 197, 212,"AND CASES THERE CITED.'

THE CONSTRUCTION OF SECTION 1481, REVISED STATUTES, IN 6 COMP. GEN. 203, WAS THE CONSTRUCTION PLACED UPON THE STATUTE FOR MANY YEARS. FOR EXAMPLE, IN THE NAVAL APPROPRIATION ACT OF AUGUST 29, 1916, 39 STAT. 611, FOR THE FISCAL YEAR 1917, THERE WAS A PROVISION:

THAT OFFICERS OF THE MARINE CORPS WITH THE RANK OF COLONEL WHO SHALL HAVE SERVED FAITHFULLY FOR FORTY-FIVE YEARS ON THE ACTIVE LIST SHALL, WHEN RETIRED, HAVE THE RANK OF BRIGADIER GENERAL; AND SUCH OFFICERS WHO SHALL HEREAFTER BE RETIRED AT THE AGE OF SIXTY-FOUR YEARS BEFORE HAVING SERVED FOR FORTY-FIVE YEARS. BUT WHO SHALL HAVE SERVED FAITHFULLY ON THE ACTIVE LIST UNTIL RETIRED, SHALL, ON THE COMPLETION OF FORTY YEARS FROM THEIR ENTRY IN THE NAVAL SERVICE, HAVE THE RANK OF BRIGADIER GENERAL.

THE COMMITTEE'S REPORT ON THE NAVAL APPROPRIATION BILL FOR THE FISCAL YEAR 1917, HOUSE REPORT NO. 743, SIXTY-FOURTH CONGRESS, FIRST SESSION, PAGE 35, IN EXPLANATION OF THIS PROVISION STATED:

THE COMMITTEE RECOMMENDS THAT THE PRIVILEGE OF RETIREMENT AFTER 40 AND 45 YEARS OF FAITHFUL SERVICE IN THE MARINE CORPS BE GRANTED UNDER THE SAME CONDITIONS AS IS GRANTED TO THE SENIOR OFFICERS OF THE NAVY.

IT THUS APPEARS THAT THE NAVAL AFFAIRS COMMITTEE OF THE HOUSE IN 1916 UNDERSTOOD THE PROVISION OF SECTION 1481, REVISED STATUTES, TO BE APPLICABLE ONLY TO OFFICERS OF THE RANK OF CAPTAIN. THE QUOTED PROVISION FROM THE ACT OF AUGUST 29, 1916, WAS REPEALED BY SECTION 14 OF THE ACT OF MAY 22, 1917, 40 STAT. 87.

IN SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1130,"TO DISTRIBUTE THE COMMISSIONED LINE AND ENGINEER OFFICERS OF THE COAST GUARD IN GRADES," IS THE FOLLOWING PROVISION:

* * * THAT HEREAFTER WHEN A COMMISSIONED OFFICER OF THE COAST GUARD WHO HAS HAD FORTY YEARS' SERVICE SHALL RETIRE, HE SHALL BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD BY HIM AT THE TIME OF RETIREMENT; AND, IN THE CASE OF A CAPTAIN, THE RANK AND RETIRED PAY OF ONE GRADE ABOVE SHALL BE THE RANK OF COMMODORE AND THE PAY OF A COMMODORE IN THE NAVY ON THE RETIRED LIST.

THE BILL CONTAINING THE FOREGOING PROVISION WAS H.R. 10531. IT WAS REPORTED BY THE INTERSTATE AND FOREIGN COMMERCE COMMITTEE AND ON THE FLOOR OF THE HOUSE WAS IN CHARGE OF MR. WINSLOW, CHAIRMAN OF THAT COMMITTEE. THE DEBATE ON THE BILL THE FOLLOWING IS FOUND (VOL. 64, PT. 1, CONGRESSIONAL RECORD, 67TH CONG., 4TH SESS., P. 149):

MR. BLANTON. THAT PART OF SECTION 3 FOUND ON THE TOP OF PAGE 5 OF THE BILL PROVIDES THAT WHEN A COMMISSIONED OFFICER IN THE COAST GUARD IS RETIRED, HE SHALL BE RETIRED WITH A GRADE HIGHER THAN THAT HELD BY HIM AT THE TIME OF HIS RETIREMENT. WHAT PRECEDENT HAS THE GENTLEMAN TO OFFER FOR THAT PROVISION?

MR. BLANTON. I AM SPEAKING OF THAT PART OF SECTION 3 FOUND ON THE TOP OF PAGE 5 OF THE BILL WHICH PROVIDES THAT WHEN ANY COMMISSIONED OFFICER OF THE COAST GUARD IS RETIRED HE SHALL BE RETIRED AT ONE GRADE HIGHER THAN THAT HELD AT THE TIME OF HIS RETIREMENT.

MR. WINSLOW. THAT IS THE NAVY PROVISION, AND THIS IS MADE TO CONFORM TO THAT.

MR. BLANTON. AS A MATTER OF FACT, THIS BILL IS MERELY ONE OF PROMOTION AND RAISE OF PAY, IS IT NOT?

MR. WINSLOW. YES, AND NO. IT IS ONE OF PROMOTION TO EQUALIZE THE POSITIONS HELD BY THE COAST GUARD OFFICERS AS FAR AS POSSIBLE UP TO THE RANK OF CAPTAIN WITH THOSE OF THE NAVY AND THE ARMY. * * *.

IT APPEARS THAT MR. WINSLOW DID NOT UNDERSTAND THAT THE NAVAL PROVISION AUTHORIZED THE PROMOTION OF AN OFFICER BELOW THE GRADE OF CAPTAIN TO THE GRADE OF COMMODORE ON THE RETIRED LIST. THESE LEGISLATIVE INTERPRETATIONS OF THE STATUTE GO FAR TO REMOVE DOUBT AS TO ITS MEANING IF ANY EXISTS. FIRST NATIONAL BANK V. MISSOURI, 263 U.S. 640, 658.

IN VIEW OF WHAT HAS BEEN SAID IT IS OBVIOUS THAT THE PURPOSE OF SECTION 5 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1271,"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" WAS MERELY DECLARATORY OF WHAT THE LAW WAS AND WAS PASSED TO OVERCOME THE EFFECT OF THE OPINION OF THE ATTORNEY GENERAL IN THE TERRY CASE.

I AM THEREFORE UNABLE TO CONCUR IN YOUR CONCLUSION. LIEUTENANT CRAIG WAS NOT ENTITLED TO BE RETIRED IN THE GRADE OF COMMODORE UNDER SECTION 1481, REVISED STATUTES. HIS TRUE RANK ON THE RETIRED LIST IS THAT OF LIEUTENANT PURSUANT TO THE ACT OF AUGUST 5, 1882, 22 STAT. 286, THAT "THE RANK AND PAY OF OFFICERS ON THE RETIRED LIST SHALL BE THE SAME THAT THEY ARE WHEN SUCH OFFICERS SHALL BE RETIRED," AND PAY IN A HIGHER GRADE SINCE LAST PAID IN THE GRADE OF COMMODORE RETIRED WILL NOT BE PASSED IN THE ACCOUNTS.