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as are or may
This opinion is strengthened by a reference to other legislation. Section 1260 of the Revised Statutes provides that any retired officer of the Army may on his own application be detailed to serve as professor in any college. But this provision was not construed to include officers of the Marine Corps, and by the act of March 2, 1895 (28 Stat., 826), a similar provision was enacted for officers of the Marine Corps.
Section 1612 of the Revised Statutes provides as follows:
“The officers of the Marine Corps shall be entitled to receive the same pay and allowances be provided by or in pursuance of law for the officers of sike grades in the infantry of the Army."
The act of April 23, 1904 (33 Stat., 26+), contains the following provisions:
“The Secretary of War may assign retired officers of the Army, with their consent, to active duty in recruiting for service in connection with the organized militia in the several States and Territories upon the request of the governor thereof, as military attachés upon courts-martial, courts of inquiry and boards, and to staff duties not involving service with troops; and such officers while so assigned shall receive the full pay and allowances of their respective grades."
I think there is no doubt that if the assignment of officers of the Marine Corps to active duty was authorized by the foregoing or other provisions under section 1612 of the Revised Statutes their pay and allowances would be assimi.. lated to that of officers of the Army when so assigned. But I do not think these provisions specifically authorizing the assignment of officers of the Army to active duty can be construed to include officers of the Marine Corps, and the absence of such authority precludes their being legally placed in the same status.
I have the honor, therefore, to reply to your question in the negative.
PAY OF THE JUDGE-ADVOCATE-GENERAL OF THE
Under the provision in the act of June 8, 1880, as amended by the act of
June 5, 1896, that the Judge-Advocate-General of the Navy should receive the highest pay of a captain in the Navy, he is entitled to compensation at the rate of $4,500 per annum, being the sea pay of a captain, but he is not entitled to the additional pay provided by the act of May 26, 1900, for officers of the Navy serving in Porto Rico, Cuba, Philippine Islands, and Alaska. (Decision by Acting Comptroller Mitchell, July 14, 1904.)
The Auditor for the Navy Department has submitted for approval, disapproval, or modification the following decision:
“Capt. Samuel C. Lemly, U. S. Navy, retired, 'has sented to this office a claim for additional pay, authorized by the act of May 26, 1900 (31 Stat., 211), to officers of the Army, for service in the places named outside the United States, from May 26, 1900, to June 3, 1904.
• Captain Lemly was appointed Judge-Advocate-General of the Navy for four years from June 4, 1896, and reappointed for four years June 4, 1900. The act of June 8, 1880 (21 Stat., 164), authorized the appointment ‘from the officers of the Navy or the Marine Corps a Judge-Advocate-General of the Navy, with the rank, pay, and allowances of a captain in the Navy or a colonel in the Marine Corps, as the case may be.' The above act was amended by the act of June 5, 1896 (29 Stat., 251)
“By inserting in said act in lieu of the words with the rank, pay, and allowances of a captain in the Navy or a colonel in the Marine Corps,
the words with the rank and highest pay of a captain in the Navy, or the pay and allowances of a colonel in the Marine Corps, as the case may be.'
" Section 13 of the act of March 3, 1899 (30 Stat. , 1007).
*** That after June thirtieth, eighteen hundred and ninetynine, commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army.
“'The act of May 26, 1900, making appropriation for the support of the Army (31 Stat., 211), provides:
**That hereafter the pay proper of all officers and enlisted men serving in Porto Rico, Cuba, the Philippine Islands, Hawaii, and in the Territory of Alaska, shall be increased ten per centum for officers
over and above the rates of pay proper as fixed by law in time of peace.'
“By the act of March 2, 1901, making appropriation for the support of the Army for the fiscal year 1902 (31 Stat., 903), it was provided:
“ “ That hereafter the pay proper of all officers serving beyond the limits of the States comprising the Union, and Territories of the United States contiguous thereto, shall be increased ten per centum for officers above the rate of pay proper as fixed by law in time of peace, and the time of such service shall be counted from the date of departure from said States to the date of return thereto.'
“The act of June 30, 1902 (32 Stat., 512), authorizes additional pay to the officers of the Army serving beyond the limits of the United States comprising the Union and Territories of the United States; and the act of March 2, 1903, ib., 927, for additional pay to commissioned officers serving at foreign stations.
“ The act of March 3, 1901, making appropriation for the support of the Navy (31 Stat., 1108), provides: That officers of the Navy and officers
of the Marine Corps, who have been detailed or may hereafter be detailed for shore duty in Alaska, the Philippine Islands, Guam, or elsewhere beyond the continental limits of the United States, shall be considered as having been detailed for shore duty beyond the seas, and shall receive pay accordingly, with such additional pay as may be provided by law for service in island possessions of the United States.'
“The act of May 26, 1900, supra, and all subsequent acts, designated the places or states that the additional 10 per cent increased pay is to be earned by the officers of the Army and Navy when serving in island possessions, Alaska, or elsewhere beyond the limits of the United States.
"Was Captain Lemly serving in any of the places named, or was he detailed for service outside the United States from May 26, 1900, to June 3, 1904? If he was so serving he is entitled to the additional pay provided for the officers of the Army and Navy.
“The act of June 8, 1880, as amended by the act of June 5, 1896, supra, fixed the rank and pay of the officer appointed from the officers of the Navy to the position of Judge-Advocate-General at the highest pay of a captain (in) the Navy.'
“His pay was neither increased nor reduced by section 13 of the Navy personnel act of June 3, 1999. He received, while holding the office of Judge-Advocate-General, the highest pay
a captain in the Navy. He can not claim that by reason of some subsequent legislation providing for additional pay to a captain in the Navy, who is performing some special service, that his own pay should be increased accordingly.
“The pay of a captain in the Navy when at sea is $4,500. That is bis highest stationary pay.
"Suppose Congress should direct the Secretary of the Navy to detail a captain to perform some special duty, and provide that while on this duty he should receive additional compensation, could it be held that the Judge-Advocate-General was, during the same period, entitled to this increased pay, on the ground that it was the 'highest pay of a captain in the Navy ? Not all captains in the Navy receive this additional pay,
but only those who are on duty outside of the United States, or at places named in the several acts granting such additional pay.
* The cases of Schuetze and Harber differ from Captain Lemly's in this, that Congress specified in the act of July 29, 1886 (2+ Stat., 299), that they should receive the highest rate of pay of their respective grades during their absence from the United States while employed in the search on the Sena Delta for Lieutenant Chipp and party.'
"The court held in Schuetze's case (24 Čt. Cl., 299):
66. That the highest rate of pay mentioned in the act meant not only sea-pay but the maximum sea pay to which an officer might be entitled for length of service. ' Schuetze had not reached the maximum rate of pay for length of service, and was held to be entitled to the highest rate of sea pay to which an officer of his grade could become entitled under the law for length of service.'
The Comptroller followed the rule laid down by the court and held that Paymaster Hicks (5 Comp. Dec., 964), who was assistant to the Chief of the Bureau of Supplies and Accounts, 'was entitled to the sea pay as a paymaster after twenty years' service.'
“Captain Lemly was required by the act under which he was appointed to perform his duties as Judge-AdvocateGeneral in the Navy Department, and it is not therefore contended by him that he was performing duty in Alaska, the Philippine Islands, Guam, or elsewhere beyond the continental limits of the United States. He was not paid as a captain in the Navy for service rendered as such, but he was paid for services rendered as Judge-Advocate-General ‘in the Navy Department,' and his compensation was fixed by reference to the rank and pay of a captain in the Navy during his term of office as Judge-Advocate-General. (Lemly v. United States, 28 Ct. Cl., 468.) There is nothing in the act of March 3, 1899, relating to the pay and allowances of the JudgeAdvocate-General of the Navy.
“The Comptroller held in the case of Civil Engineer J. V. Rockwell, U. S. Navy (10 Comp. Dec., 329), that he was not entitled to credit of five years constructive service provided for by section 13 of the act of March 3, 1899, to officers of the Navy appointed from civil life.
“In Irwin v. United States (38 Ct. Cl., 87) it was said: The purpose of the statute granting 10 per cent increase of pay to officers and enlisted men serving beyond the seas was to recompense them for arduous service abroad and increased expenses of living.
In the case of United States v. Allen (123 U.S., 345), Mr. Justice Harlan, speaking for the court, said in reference to General Orders 75, of 1866:
"We do not concur in this interpretation of the statute. The allowances provided for in the general order of 1866 were made in pursuance to rules and regulations established for the apportionment from time to time of sums appropriated in gross by Congress for specific objects connected with the naval service. They constitute no part of the pay proper of officers, and were designated to meet certain expenses they would necessarily incur in the discharge of their duties.'
“In no case, so far as this Office is aware, has the court or Comptroller held that an officer on shore duty in the United States was entitled to the increased pay authorized to officers on duty outside of the United States.
“The increased pay claimed by Captain Lemly is not the pay of an officer of his rank in the Navy. It is a limited number who receive this increased pay. He had no claim while he held the office of Judge-Advocate-General to any greater compensation than the highest stationary pay of a captain in the Navy.
"In Cosby's case (MS. Dec., September 26, 1901) the Comptroller decided that while on inspection duty outside the continental limits of the United States he was not on duty on a foreign station.
“I am of opinion and so decide that Captain Lemly is not entitled to the increased pay authorized by the act of May 26, 1900, and March 3, 1901, to officers of the Navy and of the Marine Corps on duty in Alaska, the Philippine Islands, Guam, or elsewhere beyond the continental limits of the United States during the time covered by his claim, as it nowhere appears that he was at any time on duty or detailed for duty or performed any duty outside or beyond the continental limits of the United States."
The act of June 8, 1880 (21 Stat., 164), entitled “ An act to authorize the President to appoint an officer of the Navy or the Marine Corps to perform the duties of Solicitor and Judge- Advocate-General, etc., and to fix the rank and pay of such officer, provides:
“ That the President of the l'nited States be, and he is hereby, authorized to appoint, for a term of four years, by and with the advice and consent of the Senate, from the officers of the Navy or of the Marine Corps, a Judge-Advocate-General