OpenJurist

124 US 309 United States v. Hendee

124 U.S. 309

8 S.Ct. 507

31 L.Ed. 465

UNITED STATES
v.
HENDEE.

January 23, 1888.

[Statement of Case from pages 309-312 intentionally omitted]

Atty. Gen. Garland, Asst. Atty. Gen. Howard, and F. P. Dewees, for appellant.

John Paul Jones and Robert B. Lines, for appellee.

MILLER, J.

1

George E. Hendee brought suit in the court of claims for compensation as a pay-master in the navy beyond what he had been allowed and paid for his services. He recovered a judgment in that court for the sum of $8,178.01, of which $6,313.77 was not disputed. The disposition of the remainder, of $1,864.24, depends upon whether the period of time from October 10, 1861, to November 30, 1862, during which he served as a pay-master's clerk, should be counted for the purpose of increasing his salary under the longevity provisions of the statutes. This amount the accounting officer refused to allow, upon the ground that a pay-master's clerk is neither an officer nor an enlisted man in the navy, and as a consequence the time of an officer who has been such a clerk is not entitled to be computed under the provisions of the act of March 3, 1883, on that subject. That statute provides as follows: 'And all officers of the navy shall be credited with the actual time they may have served as officers or enlisted man in the regular or volunteer army or navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the regular navy in the lowest grade having graduated pay held by such officer since last entering the service.' 22 U. S. St. at Large, 473. In the opinion of the chief justice, rendered in the court of claims, the single issue raised is the question of law whether or not a pay-master's clerk is an officer of the navy within the meaning of said act.

2

We have just decided, in the case of U. S. v. Mouat, ante, 505, that a paymaster's clerk is not, in the constitutional sense of the word, an officer of the United States; but we added also that congress may have used the word 'officer' in a less strict sense in some other connections, and in the passage of certain statutes might have intended a more popular signification to be given to that term. And in regard to the act of 1883, we think that its proper construction requires that the officer, when subsequently coming to compute what increase shall be made to his statutory salary by reason of his previous service, has a right to count other service than that rendered in the character of an officer, as defined by the constitution of the United States. Its language is, that 'all officers of the navy shall be credited with the actual time they may have served as officers or enlisted men.'

3

The claimant here is an officer of the navy, and is therefore to be credited with the actual time that he served as an officer or enlisted man in the regular or volunteer army or navy, or both. We think the words 'officers or enlisted men in the regular or volunteer army or navy, or both,' was intended to include all men regularly in service in the army or navy, and that the expression 'officers or enlisted men' is not to be construed distributively as requiring that a person should be an enlisted man, or an officer nominated and appointed by the president, or by the head of a department, but that it was meant to include all men in service, either by enlistment or regular appointment in the army or navy. We are of opinion that the word 'officer' is used in that statute i the more general sense which would include a paymaster's clerk; that this was the intention of congress in its enactment, and that the collocation of the words means this, especially when it is added that they 'shall receive all the benefits of such actual service in all respects and in the same manner as if said service had been continuous and in the regular navy.'

4

In Ex parte Reed, 100 U. S. 13, the court said: 'The place of pay-master's clerk is an important one in the machinery of the navy. Their appointment must be approved by the commander of the ship. Their acceptance and agreement to submit to the laws and regulations for the government and discipline of the navy must be in writing, and filed in the department. They must take an oath, and bind themselves to serve until discharged. The discharge must be by the appointing power, and approved in the same manner as the appointment. They are required to wear the uniform of the service; they have a fixed rank; they are upon the pay-roll, and are paid accordingly; they may also become entitled to a pension and to bounty land. * * * If these officers are not in the naval service, it may well be asked who are.'

5

In the Case of Bogart, who was brought before Judge SAWYER of the circuit court on a writ of habeas corpus, that judge took the same liberal view in regard to the position of a pay-master's clerk in the navy; holding that as an officer of the navy he was subject to be tried by a court-martial, and accordingly remanded him to the custody of that court for trial. In the opinion he says: 'Was the petitioner, while a clerk of a pay-master in the navy, on duty in the manner before stated, a person in the naval service of the United States within the meaning of this act? It is contended on his behalf that he was not. But upon this point we entertain no doubt. He was not merely an employe or servant of the pay-master, but on the contrary, as we have seen from the regulations of the navy, set out in the statement of facts, he was an officer of the navy.' 2 Sawy. 396.

6

In the opinion of Chief Justice RICHARDSON, delivered in the court of claims in the case now under review, the same view was ably argued, and while we do not concede that a pay-master's clerk is, for all purposes and in the general sense of that term, an officer of the navy, we believe that within the meaning of the statute now under consideration, providing for increase of pay to officers of the navy according to length of service, that it was the purpose of the framers of that act to include service rendered as a pay-master's clerk in the navy.

7

The judgment of the court of claims is therefore affirmed.