A-79388, JUNE 5, 1940, 19 COMP. GEN. 968

A-79388, JUNE 5, 1940, 19 COMP. GEN. 968

STATUTORY CONSTRUCTION - "REVISED STATUTES: " EFFECTIVE DATE OF RETIREMENT OF DISABLED NAVY AND MARINE CORPS OFFICERS THE " REVISED STATUTES" CONSTITUTE AN ENACTMENT AND OPERATED AS A REPEAL OF PRIOR LAWS THEREIN REVISED AND CODIFIED. THE LANGUAGE OF THE " REVISED STATUTES" IS CONTROLLING OVER THE PREVIOUS ACT ON THE SAME SUBJECT BUT WHERE THERE IS UNCERTAINTY OR AMBIGUITY AS TO THE TRUE MEANING TO BE GIVEN ANY OF ITS SECTIONS THE PREVIOUS ACT MAY BE USED TO DETERMINE THE OBJECT AND INTENT OF THE CONGRESS AS SHOWN BY THE COURSE OF LEGISLATION IN THE SAME MANNER AS IN THE CASE OF STATUTES IN PARI MATERIA. "SHALL" IS ORDINARILY CONSTRUED IN THE IMPERATIVE OR MANDATORY SENSE IN STATUTES IMPOSING DUTIES ON PUBLIC OFFICERS UNLESS SUCH CONSTRUCTION WOULD DO VIOLENCE TO THE INTENT OF THE LEGISLATURE AS ASCERTAINED FROM THE ACT AS A WHOLE. SECTION 1453, REVISED STATUTES, IS TO BE CONSTRUED IN THE LIGHT OF THE PREVIOUS ACT ON THE SAME SUBJECT AND AS REQUIRING THAT AN OFFICER'S RETIREMENT THEREUNDER BECOME EFFECTIVE IMMEDIATELY UPON THE PRESIDENT'S APPROVAL OF THE ADMINISTRATIVE RECOMMENDATION FOR RETIREMENT AND NOT AS AUTHORIZING RETIREMENT, EXCEPT AS PROVIDED UNDER THE UNIFORM RETIREMENT DATE ACT OF 1930, AT SOME LATER EFFECTIVE DATE. OFFICERS OF THE NAVY AND MARINE CORPS RETIRED FOR DISABILITY UNDER SECTION 1453, REVISED STATUTES, IN WHOSE CASES THE SECRETARY OF THE NAVY RECOMMENDED THAT THE RETIREMENT BE EFFECTIVE AT A DATE LATER THAN THE FIRST OF THE MONTH FOLLOWING THE PRESIDENT'S ACTION, MAY NOT COUNT, FOR LONGEVITY PURPOSES, SERVICE UP TO THE DATE SO SELECTED FOR RETIREMENT IN COMPUTING THEIR ACTIVE DUTY OR RETIRED PAY. (16 COMP. GEN. 187; 17 ID. 883, AMPLIFIED.)

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JUNE 5, 1940:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 12, 1940, AS FOLLOWS:

IN A DECISION RENDERED BY THE ACTING COMPTROLLER GENERAL OF THE UNITED STATES TO THE SECRETARY OF THE NAVY, AUGUST 27, 1936 (16 COMP. GEN. 187), CONCERNING THE QUESTION OF LONGEVITY SERVICE CREDITS AUTHORIZED TO BE INCLUDED IN COMPUTATION OF RETIRED PAY OF AN OFFICER OF THE U.S. MARINE CORPS RETIRED FOR PHYSICAL DISABILITY INCIDENT TO SERVICE, IT WAS HELD (SYLLABUS):

"AN OFFICER OF THE MARINE CORPS WHO, BUT FOR THE UNIFORM RETIREMENT ACT OF APRIL 23, 1930, 46 STAT. 253, WOULD HAVE BEEN RETIRED AT A DATE PRIOR TO THE COMPLETION OF AN ADDITIONAL THREE YEARS OF SERVICE, IS NOT ENTITLED TO RETIRED PAY IN EXCESS OF THAT TO WHICH ENTITLED FOR SERVICE TO DATE RETIREMENT WOULD HAVE OCCURRED BUT FOR SAID ACT.'

RECONSIDERATION OF THIS DECISION WAS REQUESTED BY THE NAVY DEPARTMENT ON JULY 30, 1937, AND IN THE DECISION ON RECONSIDERATION, DATED MAY 2, 1938 (17 COMP. GEN. 883), THE PRIOR DECISION OF AUGUST 27, 1936, WAS AFFIRMED, AS FOLLOWS (SYLLABUS):

"THE EFFECTIVE DATE OF RETIREMENT OF OFFICERS OF THE NAVY AND MARINE CORPS RETIRED FOR DISABILITY UNDER SECTION 1453, REVISED STATUTES, BUT FOR THE UNIFORM RETIREMENT DATE PROVISIONS OF THE ACT OF APRIL 23, 1930, 46 STAT. 253, IS THE DATE OF APPROVAL BY THE PRESIDENT OF THE FINDING OF THE RETIRING BOARD, NOTWITHSTANDING THE FIXING OF A LETTER DATE BY APPROVAL OF THE NAVY DEPARTMENT'S RECOMMENDATION OF A LATER EFFECTIVE DATE FOR RETIREMENT, AND SERVICE UP TO THE DATE SO RECOMMENDED MAY NOT BE COUNTED FOR LONGEVITY PURPOSES IN COMPUTING THE RETIRED PAY, NOR MAY ACTIVE DUTY PAY AND ALLOWANCES, EXCEPT TO THE EXTENT AUTHORIZED BY THE UNIFORM RETIREMENT ACT, BE PAID SUBSEQUENT TO THE DATE OF THE PRESIDENTIAL APPROVAL. 16 COMP. GEN. 187, AMPLIFIED.'

IN CONNECTION WITH THE FOREGOING THE COURT OF CLAIMS IN THE CASE OF JAMES A. GREENWALD, JR., V. THE UNITED STATES, DECIDED JANUARY 9, 1939 (88 CT.1CLS. 264), HELD THAT WHERE AN OFFICER OF THE NAVY WAS RETIRED UNDER THE PROVISIONS OF SECTION 1453, REVISED STATUTES (34 U.S.C. 417), THE ,EFFECTIVE DATE OF RETIREMENT IS THE DATE CONTAINED IN THE RECOMMENDATION OF THE SECRETARY OF THE NAVY WHICH THE PRESIDENT APPROVED, AND NOT THE DATE UPON WHICH THE PRESIDENT AFFIXED HIS SIGNATURE" AND THAT THE PRESIDENT "HAS THE POWER TO FIX THE DATE OF RETIREMENT UNDER THE ATUTES.'

THE CLAIMANT IN THIS CASE WAS LIEUTENANT (J.G.) JAMES A. GREENWALD, JR., U.S. NAVY, RETIRED, AND HIS CLAIM WAS FOR INCREASED PAY AS AN OFFICER WITH OVER TEN YEARS' SERVICE. IT APPEARS THAT THE SECRETARY OF THE NAVY ON MAY 26, 1936, SUBMITTED THE FINDINGS OF THE NAVAL RETIRING BOARD TO THE PRESIDENT WITH THE RECOMMENDATION THAT THEY BE APPROVED "EFFECTIVE JULY 1, 1936, AND THAT LIEUTENANT (J.G.) JAMES A. GREENWALD, JR., U.S. NAVY, ON SAID DATE BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST IN CONFORMITY WITH THE PROVISIONS OF U.S. CODE, TITLE 34, SECTION 417.' THE FINDINGS OF THE NAVAL RETIRING BOARD AND THE RECOMMENDATION OF THE SECRETARY OF THE NAVY WERE APPROVED BY THE PRESIDENT ON MAY 27, 1936.

ON JUNE 6, 1936, LIEUTENANT (J.G.) GREENWALD WAS ADVISED BY THE NAVY DEPARTMENT OF THE FINDINGS OF THE NAVAL RETIRING BOARD IN HIS CASE; THAT THE PRESIDENT HAD APPROVED THE FINDINGS; AND THAT ON JULY 1, 1936, IN ACCORDANCE WITH THE DIRECTION OF THE PRESIDENT, HE SHOULD REGARD HIMSELF AS HAVING BEEN TRANSFERRED TO THE RETIRED LIST. ON JUNE 2, 1936, OR PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT ON JULY 1, 1936, AS DIRECTED BY THE PRESIDENT, LIEUTENANT (J.G.) GREENWALD COMPLETED TEN YEARS' SERVICE FOR PAY PURPOSES.

THE FOLLOWING IS QUOTED FROM THE COURT OF CLAIMS' DECISION IN THE GREENWALD CASE:

"THE SOLE QUESTION IN THIS CASE IS WHETHER THE PLAINTIFF WAS RETIRED JULY 1, 1936, THE DATE CONTAINED IN THE RECOMMENDATION OF THE SECRETARY OF THE NAVY WHICH THE PRESIDENT APPROVED, OR MAY 27, 1936, THE DATE UPON WHICH THE PRESIDENT AFFIXED HIS SIGNATURE TO THE APPROVAL OF THE DECISION OF THE RETIRING BOARD.

"IN THE INSTANT CASE WE HOLD THAT THE PLAINTIFF WAS RETIRED ON THE DAY ON WHICH THE PRESIDENT DECIDED THE ORDER SHOULD GO INTO EFFECT. WE CAN NOT TAKE INTO CONSIDERATION THE FACT THAT, BY PLACING HIM ON THE RETIRED LIST AT A FUTURE DATE, IT WILL ALLOW THE PLAINTIFF TO RECEIVE A LARGER COMPENSATION FOR A RETIRED OFFICER THAN IF THE ORDER WENT INTO EFFECT IMMEDIATELY UPON THE SIGNING BY THE PRESIDENT. THIS DETERMINATION WOULD REST WITH THE RETIREMENT BOARD AND THE PRESIDENT AND CAN NOT BE JUDICIALLY CONSIDERED.'

IT IS UNDERSTOOD THAT THE GOVERNMENT'S MOTION FOR A NEW TRIAL IN THEGREENWALD CASE WAS OVERRULED BY THE COURT OF CLAIMS ON OCTOBER 2, 1939, AND THAT, THE TIME FOR APPEAL HAVING EXPIRED, NO FURTHER ACTION IS CONTEMPLATED IN THIS CASE.

IN VIEW OF THE FINAL DECISION OF THE COURT OF CLAIMS IN THE GREENWALD CASE, YOUR DECISION IS NOW REQUESTED AS TO WHETHER, IN CASES WHERE THE EFFECTIVE DATE OF RETIREMENT OF OFFICERS OF THE NAVY AND MARINE CORPS RETIRED FOR DISABILITY UNDER SECTION 1453, REVISED STATUTES, IS FIXED BY THE PRESIDENT AS OUTLINED IN THE ABOVE CITED CASES, SUCH OFFICERS MAY BE PAID ACTIVE DUTY PAY UP TO AND INCLUDING THE DATE PRIOR TO THE EFFECTIVE DATE OF RETIREMENT, AND FURTHER, WHETHER THEY MAY BE CREDITED FOR LONGEVITY INCREASES WHICH HAVE BEEN COMPLETED PRIOR TO THE EFFECTIVE DATE OF RETIREMENT, AS APPROVED BY THE PRESIDENT, IN THE COMPUTATION OF BOTH ACTIVE DUTY PAY AND RETIRED PAY.

AN EXAMINATION OF THE OPINION IN THE REPORTED CASE OF GREENWALD, 88 CT.1CLS. 264, DEVELOPS THE FACT THAT THE COURT DID NOT DISCUSS OR MAKE ANY REFERENCE TO THE ACT OF APRIL 23, 1930, 46 STAT. 253, WHICH PROVIDES:

THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

SEC. 2. THIS ACT SHALL BECOME EFFECTIVE JULY 1, 1930. ALL LAWS OR PARTS OF LAWS, IN SO FAR AS IN CONFLICT HEREWITH, ARE REPEALED. ( ITALICS SUPPLIED.)

THIS LEGISLATION WAS ORIGINALLY RECOMMENDED FOR ENACTMENT BY THE FORMER COMPTROLLER GENERAL. SEE ANNUAL REPORT OF THE COMPTROLLER GENERAL OF THE UNITED STATES, 1927, PAGE 1. IT WILL BE NOTED THAT THE WORDS UNDERSCORED IN THE ABOVE QUOTATION WERE NOT INCLUDED IN THE ORIGINAL RECOMMENDATION OF THE COMPTROLLER GENERAL. THIS LANGUAGE WAS OFFERED AS AN AMENDMENT BY THE MEMBER IN CHARGE OF THE BILL ON THE FLOOR OF THE HOUSE. SEE CONGRESSIONAL RECORD, VOLUME 72, PART 2, PAGE 2000. ITS PURPOSE IS OBVIOUS, BEING TO PREVENT AN OFFICER FROM SECURING INCREASED RETIRED PAY BECAUSE OF THE DELAY IN HIS RETIREMENT TO THE FIRST OF THE FOLLOWING MONTH AFTER THE RETIREMENT OTHERWISE WOULD BECOME EFFECTIVE.

IN A CASE OF RETIREMENT FOR PHYSICAL DISABILITY WHERE NO EFFECTIVE DATE IS RECOMMENDED BY THE SECRETARY OF THE NAVY, UPON THE PRESIDENT'S APPROVAL OF THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD IT IS CLEAR THE RETIREMENT WILL BE EFFECTIVE ON THE FIRST OF THE MONTH FOLLOWING AND THAT THE OFFICER WILL NOT BE ENTITLED TO AN INCREASE IN HIS PERIOD OR LONGEVITY PAY BECAUSE OF COMPLETION OF AN ADDITIONAL PERIOD OF SERVICE BETWEEN THE DATE OF APPROVAL OF THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD AND THE FOLLOWING FIRST OF THE MONTH. IN THE GREENWALD CASE THE PRESIDENT, ON MAY 27, 1936, APPROVED THE PROCEEDINGS AND FINDINGS CONTAINING THE RECOMMENDATION OF THE SECRETARY OF THE NAVY THAT THE RETIREMENT BE MADE EFFECTIVE JULY 1, 1936. ON JUNE 2, 1936 (FINDING 6), THE PLAINTIFF COMPLETED 10 YEARS OF SERVICE FOR PAY PURPOSES. SO THAT BY FIXING A DATE FOR RETIREMENT BEYOND THE FIRST OF THE MONTH FOLLOWING THE APPROVAL BY THE PRESIDENT OF THE BOARD'S PROCEEDINGS AND FINDINGS IN THE CASE OF AN OFFICER WHO WAS PHYSICALLY OR MENTALLY UNABLE TO PERFORM HIS DUTIES THERE WAS CIRCUMVENTED THE RESTRICTION IMPOSED BY THE ACT OF APRIL 23, 1930, UPON ADDITIONAL INCREMENTS OF PAY FOR "SERVICE" WHILE AWAITING RETIREMENT BETWEEN DATE OF APPROVAL OF THE BOARD'S PROCEEDINGS AND FINDINGS AND THE DATE OF RETIREMENT RECOMMENDED BY THE SECRETARY OF THE NAVY (AND WHICH IS HELD BY THE COURT OF CLAIMS TO HAVE BEEN ADOPTED BY THE PRESIDENT IN THE APPROVAL OF THE BOARD'S PROCEEDINGS AND FINDINGS). THE CONGRESS IN THE ACT OF APRIL 23, 1930, WAS LEGISLATING WITH RESPECT TO THEN EXISTING LAWS AS TO THE EFFECTIVE DATE OF RETIREMENT. WHATEVER DATE THERETOFORE WOULD HAVE BEEN THE EFFECTIVE DATE OF RETIREMENT WAS EXTENDED TO THE FIRST DAY OF THE FOLLOWING MONTH, ONLY. THE COURT OF CLAIMS REACHED THE CONCLUSION THAT THE PRESIDENT, NOTWITHSTANDING THE LANGUAGE OF SECTION 1453, REVISED STATUTES, MAY DELAY THE RETIREMENT TO A DATE IN THE FUTURE TO BE FIXED BY HIM. IT CITES IN SUPPORT OF THAT HOLDING A DICTUM OF ITS OWN IN THE CASE OF HOLLAND V. UNITED STATES, 83 CT.1CLS. 376, THAT:

RETIREMENT CONSTITUTES A CHANGE OF STATUS AND IS, BY REASON OF THE MANDATORY PROVISIONS OF SECTION 1453 OF THE REVISED STATUTES, EFFECTIVE ON THE DATE THE ACTION IS TAKEN BY THE PRESIDENT, UNLESS SOME OTHER DATE IS FIXED IN THE ORDER. * * *

THE COURT APPEARS TO SUGGEST IN THE GREENWALD CASE THAT IT FINDS SUPPORT FOR THIS DICTUM IN SECTION 1452, REVISED STATUTES, REQUIRING THAT A RECORD OF THE PROCEEDINGS OF THE RETIRING BOARD SHALL BE LAID BEFORE THE PRESIDENT "FOR HIS APPROVAL OR DISAPPROVAL OR ORDERS IN THE CASE," AND THE COURT ITALICIZED THE FOUR LAST WORDS. IF THE PRESIDENT APPROVES THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD THE OFFICER IS RETIRED "BY REASON OF THE MANDATORY PROVISIONS OF SECTION 1453 OF THE REVISED STATUTES" ON THE DATE THE ACTION IS TAKEN BY THE PRESIDENT, QUOTING FROM THE HOLLAND CASE, AND NO FURTHER ORDERS IN THE CASE ARE REQUIRED. IF THE PRESIDENT DISAPPROVES THE PROCEEDINGS AND FINDINGS OF THE BOARD THE OFFICER WILL CONTINUE IN THE SERVICE, SO ORDERS MAY THEN BE ECESSARY; AND IF THE PROCEEDINGS AND FINDINGS OF THE BOARD ARE NEITHER APPROVED NOR DISAPPROVED, ORDERS IN THE CASE MAY BE REQUIRED, FOR EXAMPLE, AS TO FURTHER TREATMENT. IT IS NOT CLEAR WHAT ORDERS IN THE CASE ARE REQUIRED IF THE PRESIDENT APPROVES THE PROCEEDINGS AND FINDINGS OF THE BOARD OTHER THAN THE ROUTINE NOTICE BY THE NAVY DEPARTMENT TO THE OFFICER CONCERNED, AND THE COURT HAS NOT ELUCIDATED THIS POINT.

IT MAY BE OF INTEREST TO EXAMINE THE HISTORY OF SECTIONS 1452 AND 1453 OF THE REVISED STATUTES. THE PROVISIONS ORIGINATED IN SECTION 23 OF THE ACT OF AUGUST 3, 1861 (12 STAT. 291), ENTITLED,"AN ACT PROVIDING FOR THE BETTER ORGANIZATION OF THE MILITARY ESTABLISHMENT" PASSED AFTER SOME 3 MONTHS OF THE CIVIL WAR. THAT SECTION WAS CARRIED INTO THE REVISE STATUTES AS SECTIONS 1448, 1450, 1451, 1452, 1453, AND 1454; SECTION 1449, REVISED STATUTES, WAS TAKEN FROM SECTION 17 OF THE SAME ACT. PROVISIONS AS CONTAINED IN SECTIONS 1452, 1451, AND 1453 ARE BELOW SET IN PARALLEL COLUMNS WITH THE ORIGINAL PROVISION: SEC. 1452, REVISED STATUTES. SECOND SENTENCE OF SECTION 23

A RECORD OF THE PROCEEDINGS AND THE DETERMINATION OF THE DECISION OF THE BOARD IN EACH CASE BOARD IN EACH CASE SHALL, WITH SHALL BE TRANSMITTED TO THE SECRETARY A RECORD OF ITS PROCEEDINGS, BE OF THE NAVY, AND SHALL BE LAID BY HIM TRANSMITTED TO THE SECRETARY BEFORE THE PRESIDENT FOR HIS OF THE NAVY, TO BE LAID BEFORE APPROVAL OR DISAPPROVAL, OR ORDERS IN THE PRESIDENT FOR HIS APPROVAL THE CASE.

OR DISAPPROVAL, AND ORDERS IN SEC. 1451, REVISED STATUTES. THE CASE.

WHEN SAID RETIRING-BOARD FINDS AN FIRST CLAUSE OF THE THIRD OFFICER INCAPACITATED FOR ACTIVE SENTENCE OF SECTION 23. SERVICE, IT SHALL ALSO FIND AND THE BOARD, WHENEVER IT FINDS REPORT THE CAUSE WHICH, IN ITS AN OFFICER INCAPACITATED FOR JUDGMENT, PRODUCED HIS INCAPACITY, ACTIVE SERVICE, WILL REPORT AND WHETHER SUCH CAUSE IS AN INCIDENT WHETHER, IN ITS JUDGMENT, THE OF THE SERVICE. INCAPACITY RESULT FROM LONG AND

FAITHFUL SERVICE, FROM WOUNDS

OR INJURY RECEIVED IN THE LINE

OF DUTY, FROM SICKNESS OR

EXPOSURE THEREIN, OR FROM ANY

OTHER INCIDENT OF SERVICE; SEC. 1453, REVISED STATUTES. SECOND CLAUSE OF THE THIRD WHEN A RETIRING-BOARD FINDS THAT AN SENTENCE OF SECTION 23. OFFICER IS INCAPACITATED FOR ACTIVE IF SO, AND THE PRESIDENT SERVICE, AND THAT HIS INCAPACITY IS THE APPROVE OF SUCH JUDGMENT, THE RESULT OF AN INCIDENT OF THE SERVICE, DISABLED OFFICER SHALL SUCH OFFICER SHALL, IF SAID DECISION IS THEREUPON BE PLACED UPON THE APPROVED BY THE PRESIDENT, BE RETIRED

LIST OF RETIRED OFFICERS, FROM ACTIVE SERVICE WITH RETIRED PAY, AS ACCORDING TO THE PROVISIONS OF ALLOWED BY CHAPTER EIGHT OF THIS THIS ACT. TITLE ( SECTIONS 1556 TO 1595, REVISED STATUTES).

IN ADDITION TO THE NECESSARY REVISION FOR THE PURPOSE OF CODIFICATION THE COMMISSIONERS IN CHARGE OF THE REVISION AND CODIFICATION ALSO EDITED THE STATUTES. BUT AS THE REVISED STATUTES CONSTITUTE AN ENACTMENT AND OPERATED AS A REPEAL OF THE PRIOR LAWS THEREIN REVISED AND CODIFIED THE LANGUAGE OF THE REVISED STATUTES IS CONTROLLING. WRIGHT V. UNITED STATES, 15 CT.1CLS. 86. HOWEVER, IN CASE OF AMBIGUITY OR UNCERTAINTY AS TO THE TRUE CONSTRUCTION TO BE GIVEN THE WORDS OF ANY SECTION OF THE REVISED STATUTES THE PREVIOUS ACT ON THE SAME SUBJECT MAY BE REFERRED TO AND EXAMINED FOR LIGHT ON THE OBJECT AND INTENT OF THE CONGRESS AS SHOWN BY THE COURSE OF LEGISLATION IN THE SAME MANNER AS STATUTES IN PARI MATERIA MAY BE EXAMINED AND CONSIDERED. BRADSHAW V. UNITED STATES, 14 CT.1CLS. 78; BOWEN V. UNITED STATES, 14 CT.1CLS. 162; UNITED STATES V. BOWEN, 100 U.S. 508.

IT IS EVIDENT THAT IN CARRYING INTO THE REVISED STATUTES AS SECTION 1453 THE SECOND CLAUSE OF THE THIRD SENTENCE OF SECTION 23 OF THE ACT OF AUGUST 3, 1861, THAT THE COMMISSION DELETED THE REDUNDANT WORD "THEREUPON"--- "SHALL BE RETIRED" BEING EQUALLY AS MANDATORY AS "SHALL THEREUPON BE RETIRED.' IT HAS BEEN HELD THAT "A CHANGE OF LANGUAGE IN A REVISED STATUTE WILL NOT CHANGE THE LAW FROM WHAT IT WAS BEFORE, UNLESS IT BE APPARENT THAT SUCH WAS THE INTENTION OF THE LEGISLATURE," STEWART V. KAHN, 11 WALL. 493, 502; AND THAT "THE REENACTED SECTIONS ARE GIVEN THE SAME MEANING THEY HAD IN THE ORIGINAL STATUTE UNLESS A CONTRARY INTENTION IS PLAINLY MANIFESTED," UNITED STATES V. LE BRIS, U.S. 278, 280. FURTHER,"UPON A REVISION OF STATUTES, A DIFFERENT INTERPRETATION IS NOT TO BE GIVEN TO THEM WITHOUT SOME SUBSTANTIAL CHANGE OF PHRASEOLOGY--- SOME CHANGE OTHER THAN WHAT MAY HAVE BEEN NECESSARY TO ABBREVIATE THE FORM OF THE LAW.' MCDONALD V. HOVEY, 110 U.S. 619, 629.

UNDER THE ORIGINAL STATUTE, UPON APPROVAL BY THE PRESIDENT OF THE PROCEEDINGS AND FINDINGS OF A RETIRING BOARD IT WAS PROVIDED THAT THE OFFICER SHOULD "THEREUPON"--- THAT IS, IMMEDIATELY, AT ONCE, WITHOUT DELAY --- BE RETIRED. AND THIS NOTWITHSTANDING THE PROVISION IN THE SECOND SENTENCE OF SECTION 23 THAT THE RECORD OF THE BOARD'S PROCEEDINGS SHALL BE LAID BEFORE THE PRESIDENT "FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE.' IN THIS LAST-QUOTED CLAUSE IT WILL BE OBSERVED THE COMMISSION ON REVISION SUBSTITUTED THE DISJUNCTIVE "OR" FOR THE WORD "AND" TO INDICATE ORDERS IF ANY WERE NECESSARY. NONE OBVIOUSLY WERE NECESSARY IF THE PRESIDENT APPROVED, AS ,THEREUPON" THE OFFICER WAS RETIRED. OMITTING THE REDUNDANT WORD "THEREUPON" THE STATUTE IS EQUALLY MANDATORY IF THE PRESIDENT APPROVES THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD--- THE "OFFICER SHALL * * * BE RETIRED FROM ACTIVE SERVICE.' "SHALL" IS ORDINARILY CONSTRUED IN THE IMPERATIVE OR MANDATORY SENSE IN STATUTES IMPOSING DUTIES ON PUBLIC OFFICERS UNLESS SUCH CONSTRUCTION WOULD DO VIOLENCE TO THE INTENT OF THE LEGISLATURE AS ASCERTAINED FROM THE ACT AS A WHOLE. IN THIS CASE THE STATUTE WAS ENACTED AFTER THE NATION HAD ENGAGED IN A CIVIL WAR OF LARGE PROPORTIONS AT A TIME WHEN NEITHER THE ARMY NOR THE NAVY HAD A SYSTEM OF RETIREMENT; THE HIGHEST RANKING OFFICER IN THE ARMY, GENERAL WINFIELD SCOTT (1786-1866), WAS 75 YEARS OF AGE; BOTH SERVICES HAD ON THE ACTIVE LIST OFFICERS UNABLE BECAUSE OF AGE OR PHYSICAL DISABILITIES TO PERFORM THEIR DUTIES; AND NO METHOD EXISTED TO REMOVE THEM FROM THE ACTIVE LIST EXCEPT BY DISCHARGE AFTER LONG AND FAITHFUL SERVICE TO THE NATION AND IN MANY CASES AFTER HAVING BECOME DISABLED IN ITS SERVICE. IT IS TO BE OBSERVED THAT RETIREMENT FOR AGE IN ALL SERVICES HAS BEEN TREATED AS MANDATORY; SECTION 1444 OF THE REVISED STATUTES, AS TO THE NAVY, FORMERLY PROVIDED "WHEN ANY OFFICER BELOW THE RANK OF VICE ADMIRAL IS SIXTY-TWO YEARS OLD HE SHALL * * * BE RETIRED BY THE PRESIDENT FROM ACTIVE RVICE.' THE PHRASEOLOGY IN THIS PROVISION IS IDENTICAL WITH THAT IN SECTION 1453, REVISED STATUTES. SEE, ALSO, AMENDMENT OF SECTION 1444, REVISED STATUTES, BY THE ACT OF JANUARY 28, 1929, 45 STAT. 1142, AND (AS TO THE ARMY) ACT OF JUNE 30, 1882, 22 STAT. 118. ALL ARE MANDATORY, AND IF THE NAVY DEPARTMENT COULD DEFEAT THE MANDATORY PROVISIONS OF SECTION 1453 BY FIXING A FUTURE DATE FOR RETIREMENT FOR INCAPACITY, IT IS NOT APPARENT WHY IT COULD NOT, ALSO, DEFER RETIREMENT FOR AGE, AND IT IS ASSUMED IT WOULD NOT SERIOUSLY BE CONTENDED THAT THIS COULD BE DONE.

SECTION 22 OF THE ACT OF AUGUST 3, 1861, CARRIED INTO THE REVISED STATUTES (INCLUDING THE PROVISION MADE IN SECTION 6 OF THE ACT OF DECEMBER 21, 1861, 12 STAT. 330) AS SECTION 1458 OF THE REVISED STATUTES, PROVIDES:

THE NEXT OFFICER IN RANK SHALL BE PROMOTED TO THE PLACE OF A RETIRED OFFICER, ACCORDING TO THE ESTABLISHED RULES OF THE SERVICE; AND THE SAME RULE OF PROMOTION SHALL BE APPLIED SUCCESSIVELY TO THE VACANCIES CONSEQUENT UPON THE RETIREMENT OF AN OFFICER.

UNDER THE COURT'S HOLDING IN THE GREENWALD CASE, ALTHOUGH THE OFFICER HAS BEEN FOUND BY THE RETIRING BOARD TO BE PHYSICALLY OR MENTALLY UNABLE TO PERFORM HIS DUTIES AND THAT FINDING HAS BEEN APPROVED BY THE PRESIDENT, IF THE SECRETARY OF THE NAVY HAS SO RECOMMENDED IN TRANSMITTING THE PROCEEDINGS, SAID OFFICER--- INCAPABLE OF PERFORMING HIS DUTIES--- MAY BE CONTINUED ON THE ACTIVE LIST WITH THE PAY AND ALLOWANCES OF HIS OFFICE, THEREBY DEPRIVING JUNIOR OFFICERS OF PROMOTION DURING THE INTERIM. IT IS BELIEVED THAT SUCH A HOLDING DOES VIOLENCE TO THE LANGUAGE AND THE PURPOSE OF THE STATUTE; AND THAT TO GIVE EFFECT TO THE PURPOSE, OBJECT, AND INTENT OF THE CONGRESS IN ENACTING THE STATUTE, THE WORD "SHALL" AS USED IN SECTION 1453, REVISED STATUTES, MUST BE CONSTRUED AS IMPERATIVE AND MANDATORY. SUCH APPEARS TO HAVE BEEN THE UNIFORM CONSTRUCTION BY THE ADMINISTRATIVE AND ACCOUNTING OFFICERS--- A CONSTRUCTION RECOGNIZED BY THE COURTS--- UNTIL THE NAVY DEPARTMENT DEPARTED FROM THAT PRACTICE APPARENTLY IN 1927. SEE 17 COMP. GEN. 883 AT PAGE 885, FOR STATEMENT OF THE CHIEF OF THE BUREAU OF NAVIGATION. THIS DEPARTURE FROM THE LAW AS CONSTRUED AND APPLIED FOR SOME 60 YEARS WAS NOT DETECTED IN THE AUDIT UNTIL CLAIMS WERE PRESENTED FOR ADDITIONAL PAY BY REASON OF COMPLETION OF AN ADDITIONAL PERIOD OF SERVICE BECAUSE OF SUCH DELAYED RETIREMENTS. AS TO THE ADMINISTRATIVE CONSTRUCTION AND JUDICIAL ACCEPTANCE THEREOF AS TO WHEN RETIREMENT TOOK PLACE UNDER SECTION 23 OF THE ACT OF AUGUST 3, 1861, SEE BROWN V. UNITED STATES, 18 CT.1CLS. 537, SECOND FINDING OF FACT, AND SEE THE SAME CASE BROWN V. UNITED STATES, 113 U.S. 568, WHERE THE SUPREME COURT STATES THE FACTS AS FOLLOWS:

* * * ON OCTOBER 22, 1872, THE NAVAL RETIRING BOARD, BEFORE WHICH HE HAD BEEN ORDERED BY THE SECRETARY OF THE NAVY UNDER THE PROVISIONS OF SECTION 23 OF THE ACT OF AUGUST 3, 1861, 12 STAT. 291, REPORTED THAT HE WAS INCAPACITATED FROM PERFORMING THE DUTIES OF HIS OFFICE, AND THAT THERE WAS NO EVIDENCE THAT SUCH INCAPACITY WAS THE RESULT OF ANY INCIDENT OF THE SERVICE. HE WAS ACCORDINGLY, UPON THE DAY LAST MENTIONED, BY ORDER OF THE PRESIDENT, RETIRED ON FURLOUGH PAY. * *

THE SAME CONSTRUCTION, ADMINISTRATIVELY AND BY THE COURTS, WAS PLACED ON THE SECTIONS OF THE REVISED STATUTES DERIVED FROM SECTION 23 OF THE ACT OF AUGUST 3, 1861. SEE HANNUM V. UNITED STATES, 43 CT.1CLS. 320, FINDING II, AS FOLLOWS:

ON OCTOBER 22, 1900, CLAIMANT, UPON A REPORT OF A RETIRING BOARD, WAS PLACED ON THE RETIRED LIST OF THE NAVY AS INCAPACITATED FOR ACTIVE SERVICE NOT A RESULT OF AN INCIDENT OF THE SERVICE. SAID REPORT WAS APPROVED AND THE CLAIMANT RETIRED BY ORDER OF THE PRESIDENT, AS FOLLOWS:

EXECUTIVE MANSION, OCTOBER 22, 1900.

THE PROCEEDINGS AND FINDINGS OF THE BOARD IN THIS CASE ARE APPROVED, AND LIEUT. WILLIAM G. HANNUM, U.S. NAVY, WILL BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST ON FURLOUGH PAY, IN CONFORMITY WITH THE PROVISIONS OF SECTION 1454, OF THE REVISED STATUTES.

WILLIAM MCKINLEY.

SEE THE SAME CASE, 226 U.S. 436, WHERE CHIEF JUSTICE WHITE, FOR THE COURT, SAID:

BY AN ORDER DATED OCTOBER 22, 1900, THE PRESIDENT APPROVED THE FINDING OF A RETIRING BOARD AND DIRECTED THAT " LIEUT. WILLIAM G. HANNUM, U.S. NAVY, * * * BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST ON FURLOUGH PAY, IN CONFORMITY WITH THE PROVISIONS OF SECTION 1454 OF THE REVISED STATUTES.' THEREAFTER, LIEUTENANT HANNUM WAS PAID THE COMPENSATION FIXED BY SECTION 1593 OF THE REVISED STATUTES * * *.

SECTION 1453 OF THE REVISED STATUTES (AND IDENTICAL PHRASEOLOGY IN SEC. 1454) HAS HAD THIS SETTLED ADMINISTRATIVE CONSTRUCTION, RECOGNIZED BY THE COURTS, FOR OVER 60 YEARS. THAT CONSTRUCTION SEEMS TO BE REQUIRED BY THE PLAIN LANGUAGE OF THE STATUTE, AND, AT LEAST IN CASE OF DOUBT, THAT CONSTRUCTION IS ENTITLED TO GREAT WEIGHT AND SHOULD NOT BE DEPARTED FROM BY THE COURTS EXCEPT FOR MOST COGENT REASONS. UNITED STATES V. MOORE, 95 U.S. 763; BROWN V. UNITED STATES, 113 U.S. 568.

AS HERETOFORE REMARKED, THE COURT OF CLAIMS DID NOT DISCUSS THE ACT OF APRIL 23, 1930, IN THE GREENWALD CASE. OBVIOUSLY, IN ANY CASE FALLING WITHIN THAT ACT (THAT IS, AN APPROVAL OF THE BOARD'S PROCEEDINGS AND FINDINGS AND A RETIREMENT ON THE FIRST DAY OF THE FOLLOWING MONTH, WITH COMPLETION OF AN ADDITIONAL PERIOD OF SERVICE BY THE OFFICER BETWEEN THE DATE OF THE PRESIDENT'S APPROVAL OF THE BOARD'S PROCEEDINGS AND FINDINGS AND THE DATE OF RETIREMENT ON THE FIRST DAY OF THE FOLLOWING MONTH) THE OFFICER WOULD NOT BE ENTITLED TO CREDIT FOR THAT ADDITIONAL SERVICE IN VIEW OF THE PLAIN TERMS OF THE STATUTE. ESPECIALLY SO AS THAT LANGUAGE WAS INSERTED BY THE CONGRESS FOR THE VERY PURPOSE OF PREVENTING AN OFFICER FROM RECEIVING MORE IN THE WAY OF ACTIVE OR RETIRED PAY BECAUSE OF THE DELAY OF HIS RETIREMENT TO THE FIRST OF THE MONTH THAN HE WOULD HAVE RECEIVED HAD HIS RETIREMENT TAKEN EFFECT, AS THERETOFORE PROVIDED BY LAW, WHEN THE PRESIDENT APPROVED THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD IN HIS CASE. THE ACT OF APRIL 23, 1930, ALTHOUGH NOT NOTICED BY THE COURT OF CLAIMS IN THE GREENWALD CASE, HAS NOT BEEN REPEALED. AND SEE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY QUOTED IN 17 COMP. GEN. 886. YET IN A CASE WHERE THERE HAS BEEN DEPARTURE FROM THE SETTLED CONSTRUCTION OF SECTION 1453 OF THE REVISED STATUTES AND ORDERS ARE ISSUED BY THE NAVY DEPARTMENT, CONTRARY TO THE INTENT OF THE APPLICABLE STATUTE, PROVIDING FOR THE RETIREMENT OF AN OFFICER AT SOME FUTURE DATE AFTER THE FIRST DAY OF THE MONTH FOLLOWING THE APPROVAL BY THE PRESIDENT OF THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD IN HIS CASE, UNDER THE GREENWALD CASE HE IS ENTITLED TO ADDITIONAL RETIRED PAY IF BETWEEN THE FIRST DAY OF THE MONTH FOLLOWING THE APPROVAL BY THE PRESIDENT OF THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD IN HIS CASE AND THE DATE FIXED IN THE ORDERS AS THE DATE HIS RETIREMENT IS TO BECOME EFFECTIVE, A FURTHER PERIOD OF SERVICE AUTHORIZING ADDITIONAL PAY IS COMPLETED. THAT IS, WHERE THE LAW IS OBSERVED, THE OFFICER, UNDER THE PLAIN TERMS OF THE ACT OF APRIL 23, 1930, WOULD NOT BE ENTITLED TO THE ADDITIONAL PAY BUT WHERE THE LAW IS FLOUTED HE WILL BE ENTITLED TO THE ADDITIONAL PAY.

TO FOLLOW THE GREENWALD CASE WOULD RESULT EITHER (1) IN CREATING A DISPARITY BETWEEN OFFICERS IDENTICALLY SITUATED, ONE OF WHOM WAS RETIRED IN STRICT CONFORMANCE TO THE LAW ON THE FIRST OF THE MONTH FOLLOWING THE DATE OF APPROVAL BY THE PRESIDENT OF THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD IN HIS CASE, AS IN THE ARMY, AND THE OTHER, IN THE NAVY, WHOSE RETIREMENT BY A SUPERFLUOUS RECOMMENDATION OF THE SECRETARY OF THE NAVY, WAS DEFERRED BEYOND THE FIRST OF THE MONTH FOLLOWING THE MONTH IN WHICH THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD IN HIS CASE WERE APPROVED BY THE PRESIDENT; OR (2) IN GIVING TO THE GREENWALD CASE THE EFFECT OF A REPEAL OF THAT PORTION OF THE ACT OF APRIL 23, 1930, INSERTED BY THE CONGRESS FOR THE PROTECTION OF THE UNITED STATES. IN THESE CIRCUMSTANCES, THIS OFFICE MUST DECLINE TO FOLLOW THE GREENWALD CASE IN THE SETTLEMENT OF ACCOUNTS AND CLAIMS.