B-69958, DECEMBER 9, 1947, 27 COMP. GEN. 322

B-69958, DECEMBER 9, 1947, 27 COMP. GEN. 322

PAY - RETIRED - ASSISTANT COMMANDANT AND ENGINEER IN CHIEF OF COAST GUARD OFFICERS WHO SERVED AS ASSISTANT COMMANDANT OR ENGINEER IN CHIEF OF THE COAST GUARD, WHETHER PRIOR OR SUBSEQUENT TO THE ACT OF JULY 23, 1947, FIXING THE PAY AND ALLOWANCES OF SUCH OFFICES AS THOSE AUTHORIZED FOR A REAR ADMIRAL (UPPER HALF), ARE NOT ENTITLED, UPON RETIREMENT, BY REASON OF HAVING HELD SUCH OFFICES, TO RECEIVE THE RETIRED PAY OF A REAR ADMIRAL (UPPER HALF), BUT ARE ENTITLED TO THE RETIRED PAY OF A REAR ADMIRAL (LOWER HALF) SPECIFICALLY AUTHORIZED BY THE ACT OF JUNE 6, 1940, FOR OFFICERS WHO SERVED IN SUCH OFFICES ON OR SUBSEQUENT TO FEBRUARY 15, 1940.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, DECEMBER 9, 1947:

I HAVE YOUR LETTER OF SEPTEMBER 30, 1947, INVITING ATTENTION TO SECTION 2 OF PUBLIC LAW 219, APPROVED JULY 23, 1947, 61 STAT. 410, PROVIDING THAT THEREAFTER THE ASSISTANT COMMANDANT AND THE ENGINEER IN CHIEF OF THE COAST GUARD SHALL BE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF, AS WELL AS SECTION 16 OF THE SAID ACT, 61 STAT. 413, WHICH REPEALS ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THE SAID ACT, AND INQUIRING WHETHER THE COAST GUARD IS CORRECT IN ITS VIEW THAT SUCH PROVISIONS AMENDED OR MODIFIED SECTIONS 11A, 161A, 12 AND 162, TITLE 14 U.S. CODE, SO AS ALSO TO ENTITLE SUCH OFFICERS, UPON RETIREMENT, TO THE RETIRED PAY OF A REAR ADMIRAL OF THE UPPER HALF. IT IS STATED TO BE THE FURTHER VIEW OF THE COAST GUARD THAT AN OFFICER WHO HAS SERVED AS ASSISTANT COMMANDANT OR ENGINEER IN CHIEF PRIOR TO THE SAID ACT OF JULY 23, 1947, AND RETIRES THEREAFTER, WILL BE ENTITLED, BY REASON OF HAVING SERVED AS ASSISTANT COMMANDANT OR ENGINEER IN CHIEF, TO THE RETIRED PAY OF REAR ADMIRALS OF THE UPPER HALF.

SUCH VIEWS ARE STATED ON THE PREMISE THAT IT WAS THE APPARENT INTENT OF THE CONGRESS, IN VIEW OF ITS PRIOR LEGISLATIVE POLICY, THAT WHEREVER THE WORDS "PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF)" APPEAR IN SECTIONS 11A, 161A, 12 AND 162, TITLE 14, U.S. CODE, THE CITED PROVISION IN SECTION 2 OF THE 1947 ACT SHOULD CHANGE THE WORDS "LOWER HALF" TO "UPPER HALF.''

THE ACT OF JULY 23, 1947, IS ENTITLED " AN ACT TO INTEGRATE CERTAIN PERSONNEL OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION AND THE BUREAU OF CUSTOMS INTO THE REGULAR COAST GUARD, TO ESTABLISH THE PERMANENT COMMISSIONED PERSONNEL STRENGTH OF THE COAST GUARD, AND FOR OTHER PURPOSES.' SECTION 1 OF THE ACT, 61 STAT. 409, PRESCRIBES THE MAXIMUM OFFICER STRENGTH OF THE COAST GUARD, THE BASIS FOR DETERMINING THE AUTHORIZED NUMBER OF OFFICERS IN THE VARIOUS RANKS, INCLUDING THE RANK OF REAR ADMIRAL, ET CETERA. SECTION 2 OF THE ACT PROVIDES AS FOLLOWS:

SEC. 2. COMMISSIONED OFFICERS, INCLUDING EXTRA NUMBER IN RANK, SHALL BE PROMOTED TO THE RANKS OF REAR ADMIRAL BY SELECTION, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE. THE ASSISTANT COMMANDANT AND THE ENGINEER IN CHIEF SHALL BE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF. THE NUMBER OF REAR ADMIRALS ON THE ACTIVE LIST OF THE COAST GUARD ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF, EXCLUDING THE ASSISTANT COMMANDANT AND THE ENGINEER IN CHIEF FOR PURPOSES OF COMPUTATION, SHALL BE ONE-HALF OF THE NUMBER OF OFFICERS ON THE ACTIVE LIST OF THAT RANK. WHERE THE DIVISION RESULTS IN AN ODD NUMBER, THE ODD NUMBER SHALL BE PLACED IN THE UPPER HALF. NO OFFICER WHO HAS OR MAY BECOME ENTITLED TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF SHALL SUFFER A REDUCTION OF HIS PAY AND ALLOWANCES SOLELY BY REASON OF THE FACT THAT THE NUMBER OF REAR ADMIRALS MAY FOR ANY REASON BE REDUCED. THE PRECEDENCE ON THE LIST OF REAR ADMIRALS SHALL BE DETERMINED BY THE DATE OF FIRST APPOINTMENT TO THAT RANK, EXCEPT THAT THE ASSISTANT COMMANDANT SHALL, WHILE HOLDING SUCH OFFICE, BE NEXT IN PRECEDENCE TO THE COMMANDANT. ( ITALICS SUPPLIED.)

SECTIONS 3 TO 15 OF THE ACT, 61 STAT. 410, 413, PERTAIN TO PERSONNEL ELIGIBLE FOR APPOINTMENT IN THE COAST GUARD PURSUANT TO THAT ACT, THEIR PAY AND ALLOWANCES, PRECEDENCE, RETIREMENT, AND OTHER RIGHTS. SECTION 16 OF THE ACT PROVIDES AS FOLLOWS:

SEC. 16. ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THIS ACT HEREBY REPEALED; BUT NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO AFFECT THE CONTINUED APPLICATION TO THE COAST GUARD OF THE ACT OF JULY 24, 1941, AS AMENDED (34 U.S.C., SUPP. V, SECS. 350-350J).

SECTION 1 OF THE ACT OF APRIL 16, 1908, 35 STAT. 61, AS AMENDED BY SECTION 3 OF THE ACT OF MAY 24, 1939, 53 STAT. 757, AND SECTION 3 OF THE ACT OF JUNE 6, 1940, 54 STAT. 246 (SECTIONS 11A AND 161A, TITLE 14, U.S. CODE), PROVIDES AS FOLLOWS:

THE PRESIDENT IS AUTHORIZED TO APPOINT IN THE COAST GUARD, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, ONE ASSISTANT COMMANDANT WHO SHALL SERVE FOR A TERM OF FOUR YEARS UNLESS SOONER RELIEVED BY THE PRESIDENT. THE ASSISTANT COMMANDANT SHALL PERFORM SUCH DUTIES AS THE COMMANDANT OF THE COAST GUARD MAY PRESCRIBE AND SHALL ACT AS COMMANDANT DURING THE ABSENCE OR DISABILITY OF THE COMMANDANT OR IN THE EVENT THAT THERE IS A VACANCY IN THE OFFICE OF COMMANDANT. THE ASSISTANT COMMANDANT SHALL BE SELECTED FROM THE ACTIVE LIST OF LINE OFFICERS NOT BELOW THE GRADE OF COMMANDER, AND SUCH APPOINTMENT SHALL NOT CREATE A VACANCY; AND THE COMMANDANT OF THE COAST GUARD SHALL MAKE RECOMMENDATIONS FOR THE APPOINTMENT OF THE ASSISTANT COMMANDANT. THE ASSISTANT COMMANDANT SHALL HAVE THE RANK OF REAR ADMIRAL AND THE PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF): PROVIDED, THAT AN OFFICER WHOSE TERM OF SERVICE AS ASSISTANT COMMANDANT HAS EXPIRED SHALL TAKE HIS PLACE ON THE LINEAL LIST IN THE GRADE THAT HE WOULD HAVE ATTAINED HAD HE NOT SERVED AS ASSISTANT COMMANDANT: PROVIDED FURTHER, THAT ANY OFFICER WHO WAS SERVING ON FEBRUARY 15, 1940, OR SHALL THEREAFTER SERVE, AS ASSISTANT COMMANDANT SHALL, WHEN RETIRED, WHETHER BEFORE OR AT ANY TIME AFTER THE TERMINATION OF HIS SERVICE AS ASSISTANT COMMANDANT, BE RETIRED WITH THE RANK OF REAR ADMIRAL AND THE RETIRED PAY OF A REAR ADMIRAL (LOWER HALF). ( ITALICS SUPPLIED.)

SECTION 1 OF THE ACT OF APRIL 16, 1908, 35 STAT. 61, AS AMENDED BY THE ACT OF JANUARY 28, 1915, 38 STAT. 800, THE ACT OF JANUARY 12, 1923, 42 STAT. 1130, THE ACT OF MAY 24, 1939, 53 STAT. 757, AND SECTION 1 (B) OF THE ACT OF JUNE 6, 1940, 54 STAT. 246 (SECTIONS 12 AND 162, TITLE 14, U.S. CODE), PROVIDES AS FOLLOWS:

(B). THE SECOND AND THIRD PROVISOS OF SECTION 2 OF THE ACT OF JANUARY 12, 1923 (42 STAT. 1130), AS AMENDED ( U.S.C., 1934 EDITION, SUPP. V, TITLE 14, SEC. 12), ARE HEREBY FURTHER AMENDED TO READ AS FOLLOWS: "PROVIDED FURTHER, THAT THE ENGINEER IN CHIEF, WHILE SO SERVING, SHALL HAVE THE RANK OF REAR ADMIRAL AND THE PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF), AND HEREAFTER THE ENGINEER IN CHIEF SHALL BE SELECTED FROM THE ACTIVE LIST OF ENGINEERING OFFICERS NOT BELOW THE GRADE OF COMMANDER: PROVIDED FURTHER, THAT ANY OFFICER WHO WAS SERVING ON FEBRUARY 15, 1940, OR SHALL THEREAFTER SERVE, AS ENGINEER IN CHIEF SHALL, WHEN RETIRED, WHETHER BEFORE OR AT ANY TIME AFTER THE TERMINATION OF HIS SERVICE AS ENGINEER IN CHIEF, BE RETIRED WITH THE RANK OF REAR ADMIRAL AND THE RETIRED PAY OF A REAR ADMIRAL (LOWER HALF), AND THAT ANY OFFICER WHOSE TERM OF SERVICE AS ENGINEER IN CHIEF HAS EXPIRED SHALL TAKE THE PLACE ON THE LINEAL LIST IN THE GRADE THAT HE WOULD HAVE ATTAINED HAD HE NOT SERVED AS ENGINEER IN CHIEF, AND BE AN ADDITIONAL NUMBER IN SUCH GRADE AND IN THE GRADES TO WHICH HE MAY BE PROMOTED: " ( ITALICS SUPPLIED.)

THERE CAN BE NO DOUBT BUT THAT THE PROVISION IN SECTION 2 OF THE ACT OF JULY 23, 1947, SUPRA, FIXING ANY PAY AND ALLOWANCES OF THE ASSISTANT COMMANDANT AND THE ENGINEER IN CHIEF, AS THOSE AUTHORIZED BY LAW FOR A REAR ADMIRAL OF THE UPPER HALF, SUPERSEDED THE PRIOR PROVISION IN SECTION 1 OF THE ACT OF APRIL 16, 1908, AS AMENDED, FIXING THE PAY AND ALLOWANCES OF THOSE OFFICERS AS THOSE PROVIDED BY LAW FOR REAR ADMIRALS OF THE LOWER HALF. HENCE, UNDER THE ACT OF JULY 23, 1947, THE ASSISTANT COMMANDANT AND THE ENGINEER IN CHIEF ARE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR A REAR ADMIRAL (UPPER HALF). HOWEVER, THE SAID PROVISION IN SECTION 2 OF THE ACT OF JULY 23, 1947, MAKES NO REFERENCE TO THE RETIRED PAY OFFICERS WHO HAVE SERVED OR MAY SERVE IN THOSE POSITIONS AND NEITHER THAT PROVISION NOR THE GENERAL REPEALING CLAUSE IN SECTION 16 OF THE ACT MAY BE VIEWED, AS SUGGESTED IN YOUR LETTER, AS INTENDED TO AMEND OR REPEAL THE SPECIFIC AND NOT INCONSISTENT PROVISIONS IN SECTION 1 OF THE ACT OF APRIL 16, 1908, AS AMENDED, FIXING THE RETIRED PAY OF COAST GUARD OFFICERS WHO MAY HAVE SERVED OR MAY SERVE IN SUCH POSITIONS.

IT IS SETTLED, OF COURSE, THAT REPEALS MUST EITHER BE EXPRESS OR RESULT BY NECESSARY IMPLICATION AND AN EXPRESS GENERAL REPEALING CLAUSE, SUCH AS THAT CONTAINED IN SECTION 16 OF THE ACT OF JULY 23, 1947, IS CONSTRUED AS AN EXPRESS LIMITATION OF THE REPEAL TO INCONSISTENT ACTS, EXCLUDING ANY IMPLICATION OF A MORE EXTENDED REPEAL. SEE 23 COMP. GEN. 823, AND AUTHORITIES THERE CITED. ALSO, IT IS A SETTLED PRINCIPLE IN THE CONSTRUCTION OF STATUTES THAT AN AMENDMENT OF A PRIOR ACT ORDINARILY MUST BE EXPRESS AND THAT AMENDMENTS BY IMPLICATION--- LIKE REPEALS BY IMPLICATION--- ARE NOT FAVORED AND WILL NOT BE UPHELD IN DOUBTFUL CASES. SUTHERLAND STATUTORY CONSTRUCTION, SECTION 1913. SEE, ALSO, UNITED STATES V. BORDEN COMPANY, 308 U.S. 188, WHEREIN IT WAS STATED, WITH RESPECT TO REPEALS BY IMPLICATION, THAT:

IT IS A CARDINAL PRINCIPLE OF CONSTRUCTION THAT REPEALS BY IMPLICATION ARE NOT FAVORED. WHEN THERE ARE TWO ACTS UPON THE SAME SUBJECT THE RULE IS TO GIVE EFFECT TO BOTH IF POSSIBLE. UNITED STATES V. TYNEN, 11 WALL, 88, 92; HENDERSON'S TOBACCO, 11 WALL. 652, 657; GENERAL MOTORS ACCEPTANCE CORP. V. UNITED STATES, 286 U.S. 49, 61, 62. THE INTENTION OF THE LEGISLATURE TO REPEAL "MUST BE CLEAR AND MANIFEST.' RED ROCK V. HENRY, 106 U.S. 596, 601, 602. IT IS NOT SUFFICIENT, AS WAS SAID BY MR. JUSTICE STORY IN WOOD V. UNITED STATES, 16 PET. 342, 362, 363,"TO ESTABLISH THAT SUBSEQUENT LAWS COVER SOME OR EVEN ALL OF THE CASES PROVIDED FOR BY (THE PRIOR CT); FOR THEY MAY BE MERELY AFFIRMATIVE, OR CUMULATIVE, OR AUXILIARY.' THERE MUST BE "A POSITIVE REPUGNANCY BETWEEN THE PROVISIONS OF THE NEW LAW, AND THOSE OF THE OLD; AND EVEN THEN THE OLD LAW IS REPEATED BY IMPLICATION ONLY PRO TANTO TO THE EXTENT OF THE REPUGNANCY.' SEE, ALSO POSADOS V. NATIONAL CITY BANK, 296 U.S. 497, 504.

IN THE PRESENT CASE THERE IS NO CLEAR AND MANIFEST INTENT TO REPEAL THAT PART OF THE ACT OF APRIL 16, 1908, AS AMENDED, RELATING TO RETIRED PAY OF COAST GUARD OFFICERS WHO HAD SERVED OR MIGHT SERVE IN THE POSITIONS OF ASSISTANT COMMANDANT AND THE ENGINEER IN CHIEF, NOR IS THERE ANY REPUGNANCY BETWEEN THE 1947 AND 1908 ACTS, AS AMENDED, INSOFAR AS SUCH RETIRED PAY IS CONCERNED.

THE OFFICE OF ASSISTANT COMMANDANT WAS ESTABLISHED BY SECTION 3 OF THE ACT OF MAY 24, 1939, 53 STAT. 757, WHICH PROVIDED THAT THE OFFICER APPOINTED TO SUCH OFFICE SHOULD HAVE THE RANK OF REAR ADMIRAL AND THE PAY AND ALLOWANCES OF A REAR ADMIRAL, LOWER HALF, AND, UPON EXPIRATION OF HIS TERM OF OFFICE, HE SHOULD TAKE HIS PLACE ON THE LINEAL LIST IN THE GRADE THAT HE WOULD HAVE ATTAINED HAD HE NOT SERVED AS ASSISTANT COMMANDANT. PROVISION FOR INCREASED RETIRED PAY FOR OFFICERS WHO SERVED AS ASSISTANT COMMANDANT WAS MADE IN THAT ACT. HOWEVER, SECTION 3 OF THE ACT OF JUNE 6, 1940, 54 STAT. 246, SUPRA, AMENDED THE ACT OF MAY 24, 1939, BY PRESCRIBING THE DUTIES, PAY AND ALLOWANCES, ETC., OF THE ASSISTANT COMMANDANT, AND THE LAST PROVISO IN THE SAID SECTION EXPRESSLY PROVIDED THAT ANY OFFICER WHO WAS SERVING ON FEBRUARY 15, 1940, OR SHOULD THEREAFTER SERVE, AS ASSISTANT COMMANDANT SHOULD, WHEN RETIRED, WHETHER BEFORE OR AT ANY TIME AFTER THE TERMINATION OF HIS SERVICE AS ASSISTANT COMMANDANT, BE RETIRED WITH THE RANK OF REAR ADMIRAL AND THE RETIRED PAY OF REAR ADMIRAL (LOWER HALF).

SECTION 1 OF THE ACT OF APRIL 16, 1908, 35 STAT. 61, AUTHORIZED THE APPOINTMENT OF ONE ENGINEER IN CHIEF IN THE REVENUE CUTTER SERVICE FOR A PERIOD OF FOUR YEARS, WHO MIGHT BE REAPPOINTED FOR FURTHER PERIODS OF FOUR YEARS, WITH THE RANK, PAY AND ALLOWANCES OF A LIEUTENANT COLONEL IN THE ARMY. THE LAST PROVISO IN THE SAID SECTION RELATED TO THE RETIREMENT OF THE ENGINEER IN CHIEF AND PROVIDED THAT ANY OFFICER WHO THEREAFTER MIGHT SERVE AS ENGINEER IN CHIEF SHOULD, WHEN RETIRED WITH THE RANK OF ENGINEER IN CHIEF AND WITH THE PAY OF A LIEUTENANT COLONEL IN THE ARMY ON THE RETIRED LIST. THE ACT OF JANUARY 28, 1915, 38 STAT. 800, CREATED THE COAST GUARD BY COMBINING THEREIN THE THEN EXISTING LIFE SAVING SERVICE AND REVENUE CUTTER SERVICE. SECTION 2 OF THE ACT, 38 STAT. 801, PRESCRIBED VARIOUS RANKS AND TITLES FOR PERSONNEL OF THE COAST GUARD--- INCLUDING AN ENGINEER IN CHIEF--- AND SECTION 3 THEREOF, 38 STAT. 801, CONTINUED IN EFFECT ALL EXISTING LAWS AFFECTING RANK AND PAY AND ALLOWANCES IN THE LIFE SAVING SERVICE AND THE REVENUE CUTTER SERVICE. THE SECOND PROVISO IN SECTION 2 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1130, AMENDED THE 1908 ACT SO AS TO PROVIDE THAT THE ENGINEER IN CHIEF, WHILE SO SERVING, SHOULD HAVE THE RANK, PAY AND ALLOWANCES OF A CAPTAIN (ENGINEERING) IN THE COAST GUARD, AND THE THIRD PROVISO IN THE SAME SECTION PROVIDED THAT AN OFFICER WHO THEREAFTER MIGHT SERVE AS ENGINEER IN CHIEF SHOULD, WHEN RETIRED, BE RETIRED WITH THE RANK OF ENGINEER IN CHIEF AND WITH THE PAY OF A CAPTAIN (ENGINEERING) ON THE RETIRED LIST. THEREAFTER, SECTION 2 OF THE ACT OF MAY 24, 1939, 53 STAT. 757, SPECIFICALLY AMENDED THE SAID SECOND PROVISO IN SECTION 2 OF THE ACT OF JANUARY 12, 1923, SO AS TO PROVIDE THAT THE ENGINEER IN CHIEF, WHILE SO SERVING, SHOULD HAVE THE RANK OF A REAR ADMIRAL AND THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE LOWER HALF. HOWEVER, THAT ACT DID NOT EXPRESSLY AMEND OR MODIFY THE SAID THIRD PROVISO IN SECTION 2 OF THE ACT OF JANUARY 12, 1923, RESPECTING THE RANK AND RETIRED PAY OF OFFICERS WHO HAD SERVED AS ENGINEER IN CHIEF. THUS, IT WILL BE NOTED THAT SECTION 2 OF THE ACT OF MAY 24, 1939, AMENDED ONLY THE SECOND PROVISO IN THE 1923 ACT, WHICH RELATED TO ACTIVE DUTY PAY AND ALLOWANCES, AND MADE NO REFERENCE TO THE THIRD PROVISO IN THE 1923 ACT RESPECTING RETIRED PAY. THAT SITUATION WAS ANALOGOUS TO THE PRESENT ONE BUT NOTWITHSTANDING THE APPARENT CONGRESSIONAL POLICY FOR THE PAST 30 YEARS HAD BEEN TO PERMIT OFFICERS WHO SERVED AS ENGINEER IN CHIEF TO BE RETIRED WITH THE RANK AUTHORIZED BY LAW FOR THAT OFFICE AND WITH RETIRED PAY BASED THEREON, THERE APPARENTLY WAS NO ASSUMPTION THAT THE PROVISION IN THE 1939 ACT INCREASING THE RANK AND PAY OF THE ENGINEER IN CHIEF, WHILE SO SERVING, IN ANY WAY AMENDED, MODIFIED OR REPEALED THE EXPRESS PROVISION IN THE THIRD PROVISO OF THE 1923 ACT, RELATING TO THE RANK AND RETIRED PAY OF OFFICERS WHO HAD SERVED AS ENGINEER IN CHIEF. ON THE CONTRARY, APPARENTLY, IT WAS REALIZED THAT ALTHOUGH AN OFFICER SERVING AS THE ENGINEER IN CHIEF WAS ENTITLED UNDER THE 1939 LAW TO THE RANK, PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE LOWER HALF, HE WOULD, UPON RETIREMENT, BE RESTRICTED TO THE RANK AND RETIRED PAY OF A CAPTAIN BY VIRTUE OF THE THIRD PROVISO IN THE 1923 ACT; AND IN ORDER TO REMEDY WHICH SITUATION THE CONGRESS, BY SECTION 1 (B) OF THE ACT OF JUNE 6, 1940, 54 STAT. 246, EXPRESSLY AMENDED THE SAID THIRD PROVISO IN THE ACT OF JANUARY 12, 1923, SO AS TO PROVIDE THAT ANY OFFICER WHO WAS SERVING ON FEBRUARY 15, 1940, OR SHOULD THEREAFTER SERVE, AS ENGINEER IN CHIEF, SHOULD, WHEN RETIRED, BE RETIRED WITH THE RANK OF REAR ADMIRAL AND THE RETIRED PAY OF A REAR ADMIRAL (LOWER HALF). THAT IS, THE MATTER CURED BY EXPRESS LEGISLATION AND NOT BE DOUBTFUL INTERPRETATION.

IT IS SUGGESTED IN YOUR LETTER THAT SECTION 2 OF THE SAID ACT OF JULY 23, 1947, PROVIDES THAT THE PAY AND ALLOWANCES OF THE TWO OFFICES SHALL BE THOSE PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF "WITHOUT ANY SEPARATE TREATMENT OF ACTIVE DUTY OR RETIRED PAY.' BUT THERE ARE NO SUCH OFFICES ON THE RETIRED LIST AND IN PRESCRIBING THE PAY AND ALLOWANCES OF THE ASSISTANT COMMANDANT AND THE ENGINEER IN CHIEF THE CONGRESS COULD HAVE HAD REFERENCE ONLY TO THE PAY AND ALLOWANCES OF OFFICERS ON THE ACTIVE LIST APPOINTED TO AND HOLDING SUCH OFFICES, AS OTHERWISE PROVIDED BY LAW, AND NOT TO THE RETIRED PAY OF OFFICERS WHO FORMERLY HELD, OR WHO MIGHT THEREAFTER HOLD, SUCH OFFICES PRIOR TO RETIREMENT.

THERE HAS NOT BEEN OVERLOOKED THE CASE OF REYNOLDS V. UNITED STATES, 95 C.1CLS. 160, WHEREIN THE COURT OF CLAIMS CONSIDERED THE PROVISION IN SECTION 2 OF THE SAID ACT OF JANUARY 12, 1923, 42 STAT. 1130, IN CONJUNCTION WITH THE PROVISION IN SECTION 3 OF THE SAME ACT, THE FORMER SECTION PROVIDING THAT ANY OFFICER WHO SHOULD THEREAFTER SERVE AS COMMANDANT OF THE COAST GUARD SHOULD, WHEN RETIRED, BE RETIRED WITH THE RANK OF COMMANDANT AND WITH THE PAY OF A REAR ADMIRAL (LOWER HALF) OF THE NAVY ON THE RETIRED LIST; THE LATTER SECTION PROVIDING THAT THEREAFTER WHEN A COMMISSIONED OFFICER OF THE COAST GUARD WHO HAS HAD 40 YEARS' SERVICE SHOULD RETIRE, HE SHOULD 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. IN ITS DECISION THE COURT CONCLUDED THAT THE PROVISION IN SECTION 2 OF THE SAID ACT RESPECTING THE RETIREMENT OF AN OFFICER THEREAFTER SERVING AS COMMANDANT WAS INTENDED AS A GENERAL PROVISION RELATING TO ALL OFFICERS OF THE COAST GUARD WHO MIGHT SERVE AS COMMANDANT AND THAT THE PROVISION IN SECTION 3 RESPECTING RETIREMENT AFTER 40 YEARS' SERVICE WAS INTENDED AS A SPECIAL PROVISION TO BE READ AS AN EXCEPTION TO SECTION 2 UNDER THE ACCEPTED RULE OF STATUTORY CONSTRUCTION THAT WHERE THERE IS A GENERAL AND A SPECIAL PROVISION IN THE SAME OR DIFFERENT STATUTES, IN APPARENT CONFLICT, THE SPECIAL PROVISION QUALIFIES THE GENERAL PROVISION AND SUPPLIES AN EXCEPTION. IN ARRIVING AT SUCH CONCLUSION THE COURT ATTACHED SOME SIGNIFICANCE TO THE FACT THAT THESE SECTIONS WERE PROVISIONS OF THE SAME STATUTE AND THAT SECTION 3, BEING THE LATTER PROVISION, MUST HAVE BEEN WRITTEN IN WITH THE KNOWLEDGE THAT THERE WAS AN APPARENT CONFLICT BETWEEN THAT SECTION AND SECTION 2, SO THAT THE FAILURE OF THE CONGRESS TO PROVIDE EXPRESSLY THAT THE RETIREMENT PROVISIONS IN SECTION 2 WERE TO CONSTITUTE AN EXCEPTION TO THE 40 YEAR RETIREMENT PROVISION IN SECTION 3 INDICATED THAT THEY WERE NOT SO INTENDED. WHILE THERE WAS CONSIDERABLE DOUBT TO BE RESOLVED IN DETERMINING THE RETIRED PAY TO WHICH THE COMMANDANT WAS ENTITLED UNDER THE CONFLICTING PROVISIONS OF THE SAID ACT OF JANUARY 12, 1923, IT IS SIGNIFICANT TO NOTE THAT THERE IS NO CONFLICT BETWEEN THE PROVISION IN SECTION 1 OF THE ACT OF APRIL 16, 1908, AS AMENDED, SUPRA, AUTHORIZING THE ENGINEER IN CHIEF TO BE RETIRED WITH THE RANK OF REAR ADMIRAL (LOWER HALF) AND THE PROVISION IN SECTION 2 OF THE ACT OF JULY 23, 1947, FIXING THE PAY AND ALLOWANCES OF THE ENGINEER IN CHIEF AS THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRAL OF THE UPPER HALF, SINCE, AS HEREINBEFORE STATED, THE PROVISION IN SECTION 2 OF THE ACT OF JULY 23, 1947, DEALS WITH ACTIVE DUTY PAY AND ALLOWANCES OF THE ENGINEER IN CHIEF, WHILE SECTION 1 OF THE 1908 ACT, AS AMENDED, DEALS WITH THE RANK UPON RETIREMENT AND RETIRED PAY AND ALLOWANCES OF THE ENGINEER IN CHIEF. IN THAT CONNECTION, THE COURT OF CLAIMS POINTED OUT IN ITS DECISION IN THE REYNOLDS CASE WITH RESPECT TO SECTION 2 OF THE SAID ACT OF JANUARY 12, 1923 (PAGE 169/---

* * * IN THE ABSENCE OF ANY FURTHER PROVISION IN THE STATUTE WITH REFERENCE TO RETIRED RANK AND PAY BY REASON OF LENGTH OF SERVICE, IT IS OBVIOUS THAT UNDER THE PROVISIONS OF SECTION 2 PLAINTIFF WOULD HAVE RECEIVED ONLY THE RETIRED PAY OF A REAR ADMIRAL (LOWER HALF) OF THE NAVY, WHICH WAS THREE-FOURTHS OF $6,000. CF. DECISION OF NOVEMBER 26, 1947, B- 70840, 27 COMP. GEN. 296, IN THE CASE OF GENERAL ALEXANDER A. VANDEGRIFT, COMMANDANT OF THE MARINE CORPS.

SINCE THERE IS NOTHING IN THE SAID 1947 ACT, OR ITS LEGISLATIVE HISTORY, EXPRESSING AN INTENT TO AMEND OR MODIFY THE SECOND PROVISO IN SECTION 1 (B) OF THE ACT OF JUNE 6, 1940, OR THE LAST PROVISO IN SECTION 3 OF THAT ACT, SPECIFICALLY PROVIDING THAT ANY OFFICER WHO WAS SERVING ON FEBRUARY 15, 1940, OR THEREAFTER SERVES, AS ASSISTANT COMMANDANT OR ENGINEER IN CHIEF SHALL, WHEN RETIRED, BE RETIRED WITH THE RANK OF REAR ADMIRAL AND THE RETIRED PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF), AND SINCE THERE IS NO REPUGNANCY BETWEEN SUCH PROVISIONS AND THE PROVISION IN SECTION 2 OF THE 1947 ACT, PRESCRIBING THE PAY AND ALLOWANCES FOR THOSE OFFICES, IT MUST BE CONCLUDED THAT SUCH RETIRED OFFICERS ARE NOT ENTITLED TO THE RETIRED PAY OF A REAR ADMIRAL OF THE UPPER HALF BY REASON OF HAVING PREVIOUSLY HELD SUCH OFFICES, IRRESPECTIVE OF WHETHER THEY HELD THE OFFICES PRIOR OR SUBSEQUENT TO THE SAID ACT OF JULY 23, 1947. IT MAY BE THAT THE FAILURE TO AMEND THE PROVISIONS RESPECTING RETIRED PAY WAS DUE TO A FAILURE TO BRING THAT MATTER TO THE ATTENTION OF THE CONGRESS, BUT, IF SO, THE REMEDY FOR SUCH OVERSIGHT LIES WITH THE CONGRESS AND NOT THE ACCOUNTING OFFICERS.